Client Loyalty and an Attorney’s First Amendment Rights

Sande Buhai, Loyola Law School Los Angeles, has published Lawyers and the First Amendment: Conflicts between Former Clients and Personal Speech at 83 University of Cincinnati Law Review 73 (2014). Here is the abstract.

This article explores the tension between a lawyer’s obligations under the rules of professional responsibility and her First Amendment right to speak on matters of public concern. It is fundamental to our system of justice that she owes loyalty and fidelity to her clients. But it is equally fundamental to our system of government that she should be free to speak matters of public concern.

Part I begins by exploring the relevant law of professional responsibility. The relevant professional responsibility case law is far-ranging, sometimes circular, and often incoherent. One possible starting point, however, might be to ask whether the attorney in question could represent a second client with respect to the issues as to which he wishes to speak as a citizen. If the answer is yes, then presumably he should be allowed to represent himself in a similar matter and should therefore be permitted to speak as a citizen as well. In other words, professional responsibility law should define a sphere of presumptively unconstrained political or other expressive activity in which lawyers can engage notwithstanding possible conflicts with the wishes of former clients, wholly apart from First Amendment protections.

The First Amendment, however, is obviously relevant and may permit lawyers to engage as citizens in political or other expressive activity even in circumstances in which they would not be able to represent new clients. At the very least, it may inform our interpretation and implementation of professional responsibility rules. Limitations on representation merely regulate the practice of law – a business. Limitations on political speech, by contrast, infringe on core First Amendment values. Lawyers are particularly well qualified to inform and enrich public debate. To require that they refrain from public discourse as a condition of practicing law would substantially impoverish our democracy and might ultimately discourage our most talented young people from entering the profession. As a matter of settled First Amendment jurisprudence, any such regulation of the content of political speech requires substantial justification. Part II of this article explores the extent, if any, to which the First Amendment protects political speech by an attorney on his or her own behalf even in circumstances in which he or she might not be able to represent a new client in a similar matter.

The article concludes with a framework of analysis that in the future will allow courts to balance these competing interests.

Download the article from SSRN at the link.