Lawyer Speech in the Regulatory State

A lawyer’s speech as advisor and advocate not only holds First Amendment value for the client and for the public, but also for the functioning of American democracy. This is supported both by foundational values undergirding the First Amendment as well as Supreme Court doctrine. This Article builds upon that analysis to posit that lawyers for the regulatory state ought not to be treated as government employees for purposes of the First Amendment when engaged in speech about workplace conditions related to curbing abuse of power, corruption, or other illegality. While this position runs counter to the existing precedent of closely divided Supreme Court decisions, it finds support in a historical and philosophical understanding of free speech principles

Prioritizing Professional Responsibility and the Legal Profession: A Preview of the United States Supreme Court’s 2009–2010 Term

This term, the Supreme Court is scheduled to hear ten cases on the role of attorneys and the practice of law. In doing so, the Court is departing from its normal practice of hearing two, or at most three, cases on professional responsibility. Prof. Renee Knake of Michigan State University College of Law reviews the professional responsibility cases on the Court\u27s docket and examines how they could influence the practice of law

Democratizing the Delivery of Legal Services

Article published in the Ohio State Law Journal

The Supreme Court\u27s Increased Attention to the Law of Lawyering: Mere Coincidence or Something More?

The United States Supreme Court considered seventeen cases raising issues related to the role of attorneys and the practice of law during the 2009 Term. This body of cases represents a substantial departure from dockets in recent history, where typically the Court took up less than a handful of cases involving regulation of the legal profession. While some might consider the increased number of cases addressing the law of lawyering a mere coincidence, this article contends that something more is occurring. The Court’s decision to devote so much of its limited time to these matters is noteworthy not only for the individual issues resolved, but also for the cases’ existence, indeed dominance, on the docket. This article is the first to present a comprehensive overview of the Supreme Court’s newest lawyering cases. Broadly speaking, the cases fall into two categories: access to sound lawyering and protection from bad lawyering. The first group of cases addresses access to legal advice, questioning First Amendment protection of attorney advice and advertising, the application of fee-shifting statutes to encourage legal representation for meritorious cases, and the availability of an immediate appeal to preserve attorney-client privilege in the face of a court order to disclose protected materials. The second group of cases involves harms caused by lawyers. These cases include prosecutorial misconduct and ineffective assistance of counsel claims where a criminal defense attorney lacks the requisite experience, offers insufficient mitigation evidence during sentencing, delivers a poor closing argument, gives faulty advice, misses an essential filing deadline, or fails to request a limiting instruction. Part I of this article examines the cases individually and highlights the ways each case presents critical issues related to the practice of law and the regulation of lawyers. Part II turns to a collective reading of the cases, reflecting on the Court’s heightened interest in affairs of the legal profession, and suggesting insights that might be drawn by viewing these cases as part of a larger picture, rather than standing alone. Though the full measure of these cases’ impact on professional responsibility jurisprudence will be realized only with the passing of time, this article offers three preliminary observations. First, when read together, the cases reveal a troubling pattern of limits on access to legal advice as well as harms caused by bad lawyering. Second, the cases offer fundamental lessons for those involved in future regulation of the legal profession. Third, the cases illustrate the importance of constitutional considerations to the field of lawyer ethics

Attorney Advice and the First Amendment

An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment jurisprudence. This Article is the first to offer a detailed analysis of free speech protection for advice rendered by an attorney. Attention to this topic is especially timely given the Supreme Court’s recent focus on advice bans in statutes that address bankruptcy abuse and antiterrorism. These cases illustrate important considerations regarding two previously unresolved questions in First Amendment jurisprudence: first, whether legal advice is protected under the First Amendment and second, if so, to what extent may the government constitutionally restrict legal advice. Part II of the Article reviews the Court’s recent opinions on the two advice bans, neither of which directly addressed the First Amendment’s application, though both stand as stark examples of the important concerns at stake when the government legislatively constricts access to legal advice. Part III of the Article reframes attorney speech precedent from other contexts and assesses relevant constitutional theory to support the conclusion that attorney advice deserves strong protection. Part IV reflects on the circumstances in which an attorney’s advice may be constitutionally constrained, and concludes with a summary of mechanisms preferable to advice bans for addressing concerns about problematic legal advice

Attorney Advice and the First Amendment

An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment jurisprudence. This Article is the first to offer a detailed analysis of free speech protection for advice rendered by an attorney. Attention to this topic is especially timely given the Supreme Court’s recent focus on advice bans in statutes that address bankruptcy abuse and antiterrorism. These cases illustrate important considerations regarding two previously unresolved questions in First Amendment jurisprudence: first, whether legal advice is protected under the First Amendment and second, if so, to what extent may the government constitutionally restrict legal advice. Part II of the Article reviews the Court’s recent opinions on the two advice bans, neither of which directly addressed the First Amendment’s application, though both stand as stark examples of the important concerns at stake when the government legislatively constricts access to legal advice. Part III of the Article reframes attorney speech precedent from other contexts and assesses relevant constitutional theory to support the conclusion that attorney advice deserves strong protection. Part IV reflects on the circumstances in which an attorney’s advice may be constitutionally constrained, and concludes with a summary of mechanisms preferable to advice bans for addressing concerns about problematic legal advice

The Progress of Women in the Legal Profession

Article published in the Pace Law Review

The Legal Monopoly

Lawyers enjoy an exclusive monopoly over their craft, one unlike any other profession or industry. They bar all others from offering legal representation. In most jurisdictions, lawyer-judges draft, enact, and enforce their own professional conduct rules as well as preside over any legal challenge to the rules’ validity. Lawyer regulation purports to protect the public and preserve professionalism, but it also reduces competition, constrains information, and maintains artificially high prices. Consequently, much of the American public goes without help when a lawyer is needed. Federal antitrust law typically steps in to remedy this sort of pervasive market control, promoting competition and free markets for the public good. The legal profession, however, largely avoids antitrust scrutiny because the courts fall into a special exception known as the “state action doctrine,” permitting anticompetitive actions by governmental bodies to engage in what otherwise would be illegal, anticompetitive activity. But a key presumption justifying this exception—that the regulators are not themselves members of the regulated profession or industry—is not true for most lawyer regulation. Accordingly, this Article proposes applying federal antitrust law to scrutinize the legal monopoly, and suggests that doing so may increase access to affordable legal services while preserving professionalism and client protection