Attorney Advice and the First Amendment

I. IntroductionIs the advice an attorney gives to a client protected by the First Amendment?1 If so, in what circumstances and for what reasons may the government constitutionally restrict legal advice? The Supreme Court has not directly addressed this issue, though legal ethics and First Amendment scholars recognize that these questions raise an important debate.2 This Article explores these questions by examining Supreme Court precedent on attorney speech as well as underlying constitutional theory in light of two cases involving federal bans on legal advice taken up by the Court during the 2009 term.3 The Article concludes that the First Amendment protects advice rendered by attorneys to their clients, and that legal advice may be constitutionally restricted in only very limited circumstances. As to the precise contours of those circumstances, the Article's conclusion takes up some of the easier and more difficult cases in an effort to spark further discussion and analysis in this area.Attorneys render advice.4 Without the ability to render independent and candid legal advice, attorneys and, importantly, their clients have nothing.5 As Professor Stephen Pepper wrote in his seminal article on the lawyer's counseling at the limits of the law:Our legal system is premised on the assumption that law is intended to be known or knowable, that law is in its nature public information. The "rule of law" as we understand it requires promulgation. . . . And one fundamental, well-understood aspect of the lawyer's role is to be the conduit for that promulgation. In a complex legal environment much law cannot be known and acted upon, cannot function as law, without lawyers to make it accessible to those for whom it is relevant.6An attorney's advice makes law accessible to the client. Yet even greater interests are jeopardized when an attorney's power to provide counsel is impaired by external regulation.7 The role of an attorney in navigating and, when necessary, challenging the law is a critical component of American democratic government.8 The Supreme Court has long acknowledged the unique purpose of attorney advice where "under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances."9 A necessary predicate to meaningful, effective litigation is the attorney's advice to her client about the client's legal rights and the proposed course of action.Consider further Alexis de Tocqueville 's early observation that attorneys "are the most powerful existing security against the excesses of democracy" given "the authority . . . entrusted to members of the legal profession, and the influence that these individuals exercise in the government."10 Robert Gordon observes that the republican tradition or virtue "influenc[ing] Tocqueville's view of American lawyers," while now "rather out of fashion," remains a concept that "in fact we cannot do without."11 Though Professor Gordon directs his arguments toward supporting a lawyer's independence from her client, this Article contends the same arguments reveal why an attorney's advice must be independent from control by the very institution creating the law.12 The separation of powers so imperative to American democracy demands nothing less.Monroe Freedman and Abbe Smith make a similar point about the significance of attorney advice, stating that "people with grievances against one another come to lawyers as an alternative to resorting to physical violence, and society, through the legal system, provides a socially controlled, nonviolent process of dispute resolution. Lawyers play an indispensable part in that constructive social process."13 Yet attorney advice informs and sustains the legal system in ways well beyond advocacy and dispute resolution. As Professor Gordon explains:[L]aw also needs lawyers: agents who communicate the rules through advice to private clients and governments and enable them to organize their businesses and structure their transactions and comply with regulations and tax laws and constitutional limitations; and who can negotiate and if necessary litigate with the state and other private parties when their claims of rights are impaired or disputed. …