Contemplating Free Speech and Congressional Efforts to Constrain Legal Advice
8 Pages Posted: 12 Mar 2010 Last revised: 18 May 2010
Date Written: March 10, 2010
This essay addresses an important intersection between attorney regulation and free speech that has received little attention by the legal academy - the question of whether the First Amendment protects the professional speech of lawyers when they give advice. Two cases heard by the United States Supreme Court during the 2009-10 term raised this very issue. Both cases tested Congress’s efforts to constrain the advice lawyers may provide to clients and the public. In Milavetz, Gallop & Milavetz, P.A., et al. v. United States, lawyers and their clients challenged a bankruptcy regulation that bans lawyers from offering advice about the accumulation of additional debt in contemplation of filing for bankruptcy. In Holder v. Humanitarian Law Project, a retired administrative law judge and others argued that a federal anti-terrorism statute unconstitutionally prohibits the offering of legal expertise and advocacy for nonviolent and lawful peacemaking activities. This essay presents an overview of the cases and contends that they serve as a wake-up call for scholars and practitioners alike to focus on the consequences of federal legislative interference in the attorney-client relationship and the free speech rights of attorneys and their clients.
Keywords: legal profession, First Amendment, legal advice, Supreme Court
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