Ethics

The media and blogosphere are flooded with coverage of the Court's decision Monday in Holder v. Humanitarian Law Project, calling it everything from "a smashing victory for the rationale of material support laws" (see here) to "the same sort of deferential approach that the Supreme Court took to anti-Communist laws in the early days of the McCarthy era" (see here). 

Articles appear in the major newspapers (NYT, WSJ, WP, AP) as well as the National Law Journal and the ABA Journal.  The NYT's Room for Debate features commentary from Georgetown Law Professor David Cole (who represented the Humanitarian Law Project) as well as law professors Stephen Vladeck, Richard Epstein and others.  Eugene Volokh at The Volokh Conspiracy has offered several observations (and made me feel better about my own personal moments of chaos in trying to blog with children on summer vacation) here, here, here, and here.   Other blogs weighing in include the Constitutional Law Prof Blog, Balkinization, and SCOTUSblog.  PBS also has a segment with National Law Journal's Marcia Coyle explaining the decision (H/T Alberto Bernabe's Professional Responsibility Blog). 

While the decision is getting a lot of attention in the context of what it might mean for national security and the war on terror, I can't help but be concerned about how the decision might encourage future attempts by Congress to regulate attorney advice.  As I've argued in my short essay Contemplating Congressional Efforts to Constrain Legal Advice and am developing more fully in a longer article currently in the works, advice bans like that in HLP and Milavetz (another case involving a federal restriction on attorney advice upheld by the Court this term) not only raise serious First Amendment concerns but also compromise a lawyer's duties to render candid advice and to provide competent representation, among other important obligations owed to the client. 

Now, to be clear, the HLP opinion upholds the ban only for a limited scope of proposed speech:  (1) training on how to use humanitarian and international law to peacefully resolve disputes; and (2) teaching about how to petition various representative bodies like the United Nations.  It is also possible that engaging in political advocacy on behalf of groups like the Kurdistan Workers' Party and the Liberation Tigers of Tamil Eelam would violate the statute as well, but the Court found that the proposed advocacy was "phrased at such a high level of generality that [the plaintiffs] cannot prevail in this preenforcement challenge."  Chief Justice Roberts, writing for the majority, was careful to make clear that "this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny" and that the opinion does not "address the resolution of more difficult cases that may arise under the statute in the future."

So it may be that if confronted with the specific question about the degree to which an attorney's legal advice to a foreign terrorist organization could be constitutionally banned, the Court would reach a different conclusion.  In the meantime, however, it seems inevitable that HLP's holding will have a chilling effect on attorney advice, as Justice Breyer suggests in his dissent:

It is inordinately difficult to distinguish when speech activity will and when it will not initiate the chain of causation the Court suggests - a chain that leads from peaceful advocacy to "legitimacy" to increased support for the group to an increased supply of material goods that support its terrorist activities.  Even were we to find some such line of distinction, its application would seem so inherently uncertain that it would often, perhaps always, "chill" protected speech beyond its boundary.

Another case involving federal restrictions on attorney advocacy and advice, Legal Services Corp. v. Velazquez (opinion here), was not addressed by the Court, but I think might offer some insight here.  In Velazquez, a 5-4 decision, the Court struck down a federal statute prohibiting attorneys for the Legal Services Corporation, a congressionally-created nonprofit that provides legal assistance in civil matters, from challenging the validity of a state or federal statute.  Under the challenged restriction, the LSC attorneys were required to cease representation immediately if a question about a statute?s validity arose.  As Justice Kennedy explained in writing for the majority, ?[r]estricting ? attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys.?  Recognizing the importance of ?an informed, independent bar? he further observed that ?[w]e must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from judicial challenge.?  In my mind, bans on attorney advice like those in Milavetz and HLP run the risk of doing exactly that.