enforcement challenge to the state department's application of arms broken regulations under part one twenty nine of the international traffic in arms are you it seems to attorneys providing legal advice to clients on criminal law now part one twenty nine violations of apartment twenty four punishable civilly and criminally with fines about one million dollars per violation for criminal violations sanctions or punishable with up to twenty years in prison  subject to part one twenty nine requirements if an attorney receives a contingent fee or commission for the silver defense article the net attorney is an arms broker subject apartment twenty not but what the state department cannot do is the state department may not impose part one twenty nine registration disclosure prior approval annual reporting requirements in a way that requires an attorney to disclose client names in conjunction with substance the details on the scope of legal advice nor can the state department impose part one twenty nine in a way that requires attorneys to provide law enforcement agents with access to law firm records were confidential and privilege documents are stored without a warrant or other judicial process subject to review but this is precisely what the state department has done in the issuance of official agency guidance under a two thousand and thirteen final ru this case because i have a very strong interest because this affects a lot of the writers did you participate in the rule making process yes i did i drafted the the section that oppose this part of the regulation for the american bar association them and then there's a lot of talk where you cited under the or what aren't and their response was the gotta give us more details right right and this is and that's the genesis of this complaint and that's one of the core injuries i have which is i don't have fair notice of what's required and then top of that that's that's my as applied challenge and fifth amendment underlying claim but there's also a fifth amendment that's about that much my facial challenge and sort of the facial challenge and fifth amendment grounds that is what take a legal advisor covered under stand your telling me that certain legal advice on the sales want to talk a little bit about you have a chance near the legal services corporation versus legal service in new york city case but in that case you had an issue where there was some problem it's one of two words the script describing representation in my case for each topic representation i even through the three lines of description and that was supplemented by additional information requests that they responded was not sufficient need to nothing detail on the legal provided for them to make a decision they want my client's name it's pretty obvious if i tell you my clients names are what i do for them but if you're saying that two to three longitude a four line description of what i'm providing as far as legal advice is not sufficient and if you will require me as part one twenty nine to me and they say we need advice in this transaction but they've already started working on the transaction because no one can appear my legal fees until they have a some assurances that they might actually have an underlying transaction and so a lot of times because of the complexity  they come to me there's already violations by them a perfect example is a client that's looking to picture some offshore form depends articles they might be might be of are you part of the transaction they have not identified three borders customs brokers u s purchasers and so forth and they might have already sent them and this happens in the real world specifications for the article that they want produced and they voted for you agree to a price and now they've got a contract and they come and go mr goldstein we want you to help us get a license from the department state and business money were given for these legal services organizations being used actually being used as they say there are so what they did was they issued a subpoena us and they have a legal process that they issued upon legal services of new york city the legal what we're talking about that but they'd even go that far what happened in that case is the origin had to the elysee oh i g had an ethical wall where the information from the first stage went to a group of individuals in separate facilities and the second other individuals themselves so there was an ethical wall between connecting even that information and that's a far cry from we have the present case where they want a lot more information more than just two or three lines of legal advice they want my client names transaction were not identify the request that was subsequently becoming to them i mean are they asking they want to vary their ask me for all the parties involved it's very easy for them to make that now with another some other key differences legal services cases which is very material to with the defense industry involved with exports possibly something like talk and a real big issue that comes up a lot on this and it comes up with a real large percentage of people that come to me for the first time is is you have to be registered if you are a manufacturer of a de article in the united states you have to invent registered with them as defense article one there's one thing i'm not quite understanding which is that the the claim that you brought before us has to do with your role as a lawyer and what you have to disclose in order to make sure that the legal advice you're rendering isn't doesn't bring you within the fold of the broken regulations but it sounds like part of the argument that you're making today has to do with information that your client would have to submit anyway in order to get cleared for the transactions it doesn't have to do with the legal advice part of it but then there's a separate part which is what does the client have to disclose in order to get authorization to do the brokering activity the it's an issue and so when you're talking about giving up potential information that might implicate the client in wrongdoing doesn't that that's not an argument that's limited to the legal advice right it's an argument that goes to the underlying regulation itself want i don't think that my loft is should be doing the job of law enforcement for them in taking my client's information from me and one of the biggest things in this is maybe going to leave it to that about why i'm kind of making a claim that looks like it might be going to i thought i thought the purpose of the  regulation was to flush out that very facts unary you're talking about is to determine whether you're acting as a broker or just giving legal advice right when and if what you're telling us is that you're just giving legal advice to regulation doesn't apply to you will be done when you're here you have no injury seems to me you're fishing for an advisory opinion from us because you didn't get the adjective one from then why why when i missing here do your honor what is what is not there is the give me that confirmation is that i've given my client names and real details substantive how do you know you have to give the client needs i mean i think that the process hasn't happened yet where you seek the official  were there was there they want all the motions before their response was there but then but they've told you that you could submit and request for an official determination if you supply more information but what they did was number one the response that they give me was apologize it was in may thirteenth it was made twelve on may twelfth they said another letter respond to requests and if you turn to the last page of that requests  their guidance on more specific activity if you supply more specific information right and actually you are going to get your disability the question this is one of the reasons why i am bringing the lawsuit which is the fifth amendment procedural due process which is i gave them as much detail as i could in that first request without divulging client conferences i don't want to tell them who my client is the illingworth i don't want to tell them the specific details of the substance legal advice and your online transaction because he said is that required the may twelve one where they say that the love to actually be recovered and must client has identified the form part of the transaction which is a large part of what i do where do we go from there i get one of these cases in the issues of informed consent raise particular problems which i discuss in the catch twenty two but burden on my representation of my ability to represent them there's also going to burden were one point comes in the door asking for advice on how to comply with laws that subject one million dollars per violation and they want to know how do i deal with this agency and i told the wall first off i need to get away from you long regulated international arms and munitions program in twenty fifteen the department issued a regulation that clarified that activities by an attorney they do not extend beyond the provision of legal advice to clients do not constitute  i don't think that the that the twenty thirty roll was a change in the substance of the role it was it was never it's it was a clarification and that the prior will and now that the current role that he's challenging does not cover  that you are i'm just not familiar with an enforcement action involving that exception so i don't want to get out in front of the agency and see how that would that would play out but really in this case what's important is that what he's challenging is a regulation that says attorney race is not covered and all he has done is stated in very general terms that he engages in legal advice relating to i tire transactions and there is no indication that he does anything that would go beyond traditional legal advice see what he says i do things with them this category that you have defined brokering and when i asked you about your money except when you said well we're not going to tell you you're out if you don't know all clients and the twenty fifteen letter was trying to give the plaintiff even more guidance and he requested that he requested it a non binding opinion as to whether six very general categories of activities by lawyers would constitute brokering and so with the agency did as it tried to give him even more information than was already in the regulation and frequently asked questions and explained that first of all the agency started out by saying that it does not intend the categories of activities that he described  in which an attorney would be engaging in a program and the principal concern that that limitation was focused on is that an attorney would use legal advice to act as a finder and i think and he has explicitly disclaimed many times that he would act as a finder and just to give an example of what conceivably could you know could constitute an attorney giving legal advice that would steer a client towards a particular prior for example if someone comes to an attorney and they want to sell control explosives and they asked the attorney to draft a general sales contract that would be legal advice it would not constitute brokering but if the same person came to the attorney ask them to draft a general sales contract and  the attorney happens to also represent a buyer in pakistan and knows that that buyer would want to buy these controlled explosives and so the attorney recommends that the that the contract be translated into earth do knowing he engages in any conduct that would be regulated in the key here is that to be regulated he would have to engage and he would have to do something that extends beyond the provision of legal advice to client so he's given no indication that he does that he has not even described in the most general terms indication as to why he thinks what he's doing goes beyond to do about it illegal in bed without disclosing his car he certainly he certainly could give more information than he's given at this point and while it's true that the regulations for binding guidance as an initial matter would require him to give the client name the regulations also specifically state that if if such information isn't available you can still make a request providing guidance an agency will take into account what information it has three opinions through an iterative process and so if you came to the agency and said this is all the information i believe that i can give you because you know the additional information that the client name is privileged then the agency could go back and forth with him about you know what for an advisory opinion shows that he's been injured by the regulations to do that he would be sure of your regulations regulate right we have to be regulated by the regulations in order to establish an injury and here he hasn't shown that he's regulated does i don't think you would have to prove that he's regulated by the regulations i think there have to be a substantial risk that he comes within the regulations right because that would still be enough to constitute injury we would have to show that that there's is it you have to be right that if someone just simply files a letter that says i'm worried that my conduct brings we within the fold of the regulations and gives one sentence and says i need a general in activities in this area and i'm there for worried well that can't be enough because nobody has any idea what's going on that's not a substantial risk because we don't know what their conduct is at issue but on the other hand his his claim is that if if you take the regulation literally on what i need to supply what information and you to supply in order to get the kind of fishbowl stamp of approval that i want i just can't do that and then it sounds like your response is well we don't know yet whether something short of that would be enough because it's an iterative process so it could be that he doesn't have to disclose all the things that are itemized the regulation he might be able to start off by saying i don't want to do all that i want to do something short of that because of the circumstances of the work in which i engage and it seems like you're saying well that might be enough for the agency to give an official determination yes you are and how do we know that there's two separate issues i mean one is whether he could get a binding opinion from the agency but the separate issue is whether in his complaint he's alleged facts that show that he's imminently going to be injured by this regulation to create a case or controversy for this court to adjudicate but instead what he's doing is he wants in the abstract this court to tell him w an attorney will engage in some sort of activity that goes beyond legal advice and becomes programming and the agency has already tried to explain that in as much detail as it could in the letters to him and he's now asking this court is in situations where i don't know all the form parties and that in order to obtain as more say part of the safe harbor of this and i yes i'm going to have to go get disclose information and i'm worried privilege or is going to imperil my relationship with my and term viability even get their business once i started saying up front i'm going to happen disclose all this stuff just to make sure we can even do it why is that not a substantial risk  the idea of when and when an attorney would be doing something that would extend beyond legal advice and what the what the c of hardware was getting at and the reason it has the limitation that the form parties be identified is because it's conceivable to the agency that an attorney might use legal advice to act as a finder and they could do that another example would be when a seller comes to an attorney and asks for advice how to structure a transaction and the attorney knows a particular buyer in for example of mala that wants to buy the explosives that the seller signed and so the attorney recommends that the seller structure the transaction by incorporating in quite a mala or having an in partner sorry an in country partner in quite a mala and in that circumstance what the attorney would have been would have been doing would come much closer to finding a buyer for the seller and so through through the legal advice the attorney would be steering the the the facts a little bit and he follows up and with a type of request that the may letter hypothesize that he should undertake if you want to get further guidance and instead of giving all the information that's forth in the regulation he makes a more generic because he's concerned about a giving up confidences be being able to do business in the area and then the response comes back and says well that's just not enough you know we can't give concrete of a scenario that the agency had had examined and for this court to for the what was it only be harder case why wouldn't there be injury in that situation because what he would say is look i've given all the information that i feel comfortable giving if i give any more information i'm either going to be in breach of my ethical obligations or and i can be a good business one of the other they're both both of those then you're telling me that you need more information from me we're we're at an impasse therefore i get to challenge the application of the regulations to me at this point i may lose on the substantive challenge but in terms of whether i'm injured at this stage i'm alleging that i'm injured because i'm not comfortable giving up any more information that i give where i think in the scenario that you  situation because he would have done what your letter itself calls for him to do but yet it still would have been enough because the regulations applied literally and he doesn't have this kind of half measure where he can give more specific information that he's given now but not as specific as the regulation seems to call for then if if we already know x unity that he's going to have to give up all that information anyway then it doesn't even seem like it's worth going to  the measure because he his point is i'm reading this thing literally it requires me to give up a bunch of stuff that i just can't give up and it seems like your response is well we don't know that yet because it could be that you can style a request by making it a little generic a little more specific than we have right now but more generic than what the the in a sort of materials call for and that still might be enough and his response would well why do i think that's enough because the what i don't want to do and what i feel disabled from doing is giving exactly the information that the agency materials call for me to give i guess i mean there's again there's a separate issue of whether he has standing in this court and whether he can seek a binding determination by the agency and to have standing to have standing in court he has to show that he's going to be eminently injured by the by the regulations and as we talked about he hasn't shown that there's a substantial risk that he will because all he all he is stating his complaint that he does is generally advise clients on matters relating to defense articles and defense services and the regulation specifically says that when an attorney is giving advice that does not extend beyond the vision of legal advice it's not covered by the regulations so there's just no indication in the complaint that he's doing anything that would be subject to the regulation in your view would  information that would suggest why he's even concerned that he might be doing something that would rise to the level of programming and because the whole point of the regulation and the frequently asked questions and the letter to him is that legal advice generally is not covered and so there would have to be some indication that he thinks he's doing something that goes beyond legal advice and he could describe that to a court in very categorical terms without mentioning the names of parties but he hasn't done that instead all he noted even though he claims to have been giving that sort of advice for a long period of time before he filed this affidavit he didn't he didn't describe even a generic terms any particular transactions that he was worried about or that you know from the past or anything he was planning to engage in in the future and then had a second response but  but he gives he's given no reason to think that that's true he hasn't alleged any facts showing that there's a substantial risk that he falls within the regulations that the relations themselves the frequently asked questions in the letter all state the legal advice generally is not covered as programming and if he's concerned that there is a particular activity a particular way that he advises clients or particular role that he takes in transactions that he thinks might go beyond legal advice and might constitute programming then he could come to this court or he could come time and it doesn't mean that you don't discuss anything having having to do with he that you can just say attorney client privilege and then just not talk about it at all i mean he you know still in or in a regular case if we if we got to a point where there was a particular communication between him and a client that he thought was privileged and so that's why he couldn't put that information in his complaint to a court at that point it could be litigated or you could file something under seal with a court in order to establish standing but it's not enough just to if you look at the actual may twelfth letter now keep in mind when i wrote my original vice repeated requests a year it took a year before i had any response in that time you information would count in providing guidance on whether the activities constitute program after the guidance will constitute an official determination of the part of the state so they amended the opinion process during this whole period to make it so that was binding and if you book now back page forty one which is the last page of the may twelfth advisory opinion determination it gave me its takes at the very last sentence this information in this letter submit to the process i'm challenging and that's what that's that was part of the decision and babbitt they didn't submit to the election procedures and they still had standing in the court noted the few that the reason why they didn't do it was because it would be futile you asked them you asked her what information they need they don't know they want to see it they say it's an interim process well in it or process how much supposed to take on representations during the so far the order of process has been more than a year because before  what i do and when i leave here today i'm going to advise clients on putting together an export control costs on an estimate the cost in the back of an estimate to be using this in self defense articles they don't know who all the parties are that's clearly within the scope most my clients that want to wait a week for my advice let alone a year and who's to know if i get a response when you're saying well we need more information and that's the problem facing that's really a primary part of my injury and damages right now but again  broad scope of activities if you will if you advise clients on sales of defense articles where all the foreign parties are not involved in might be covered they define it that way but how do i determine within their whether it's controlled an agency statement general or particular playability and future effect designed to implement interpret prescribed law in general or particular they gave me general guidance official guidance pursuant to regulations and under the final rule so i'm stuck between a rock and a hard place do i take on the representations do i go ahead and get that person estimate today do i try to get clients get a waiver informed consent to the extent that's even possible when i do explain them or happy to  twenty two that i encounter in trying to get catch twenty two it was trying to get informed consent when basically have to advise the client on whether the underlying transaction they are proposing is legal before i can think we listen further questions from my colleagues i think oh i apologize