58 Pages Posted: 9 Mar 2012 Last revised: 20 Jun 2013
Date Written: February 1, 2012
In Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), the United States Supreme Court held that Congress could constitutionally prohibit attorneys from providing legal assistance and advice regarding lawful nonviolent conduct to groups that the Secretary of State has designated as Foreign Terrorist Organizations. The Court cursorily rejected the plaintiffs’ argument that providing such advice and assistance was protected by the right of free association under the First Amendment. The Court held that the Humanitarian Law Project’s proposed legal advice and advocacy involved a greater associational tie, and thus one that can be criminalized, than membership in an organization - even in the context of providing lawful human rights advice.
This paper explores the attorney’s constitutional right to freely associate with clients to provide legal advice, assistance, and representation. The Supreme Court’s failure to protect attorney-client association is inconsistent with the core purposes underlying the right of association, namely: (1) to safeguard the First Amendment rights of speech, assembly, and petition; (2) to ensure that guilt is personal; and (3) to provide access to government and democratic processes. More fundamentally, freedom of attorney-client association preserves the attorney’s essential role in the American justice system of providing access to justice and of protecting the life, liberty, and property of others. Separation of attorney from client works to defeat access to law and access to government remedies, processes, entities, and power. Most notably, proscribing attorney-client association for particular groups eliminates effective access to the judiciary and forecloses attorney advice to clients on how to structure client conduct to avoid or minimize imposition of government sanctions. Thus protection of attorney-client association is particularly important to secure legal recourse for minorities and unpopular groups from majoritarian overreaching.
Keywords: Professional Responsibility, Legal Profession, First Amendment, Constitutional Law, Freedom of Association
Suggested Citation: Suggested Citation
Tarkington, Margaret, Freedom of Attorney-Client Association (February 1, 2012). 2012 Utah Law Review 1071; Indiana University Robert H. McKinney School of Law Research Paper No. 2012-07. Available at SSRN: https://ssrn.com/abstract=2018066