Speech to the Public Laying Out Legal Theories Isn't Unauthorized Practice of Law

Thursday's decision in Salazar v. Majestic Realty Co., by California Court of Appeal Justice Helen Bendix, joined by Justices Frances Rothschild and Gregory Weingart, dealt with plaintiff's attempt to leaflet at large privately owned shopping centers. The California Supreme Court has (rightly or wrongly) held that the California Constitution protects such a right; so the court ended up applying pretty much the same rule (to oversimplify slightly) as to leafletting on public sidewalks. And the court held that plaintiffs' leaflets are indeed protected, reversing a trial court's decision to the contrary:

We disagree with the trial court that plaintiff's leafletting constitutes the unauthorized provision of legal advice such that it is not entitled to constitutional protection.

Plaintiff's first leaflet stated, inter alia, "Men are not legally and financially responsible for supporting a child that a woman chooses to have," and invited men to attend plaintiff's meetings to "Learn the truth. Learn your rights." His second leaflet described his meetings, stating, "I give a [one-hour] pre[sen]ta[t]ion in Riverside to teach men that they do have the r[e]pr[o]ductive right to choo[s]e too and why they are not r[e]sponsible for supporting a woman's r[e]pr[o]ductive d[ec]i[s]ion to have a child."

The trial court cited Howard v. Superior Court (Cal. App. 1975), which states, "The constitutional protection for free speech does not extend to the delivery of legal or medical or financial advice by persons not licensed to give such advice." The court also cited Business and Professions Code section 6126, which provides, "Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active licensee of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor …." The court found plaintiff's statement that men were not financially responsible for the care of their children was not only legal advice but also inaccurate legal advice and cited Penal Code section 270, which criminalizes the failure to provide necessary care to one's child. In light of these authorities, the court concluded plaintiff's leaflets are not constitutionally protected.

Plaintiff's leaflets cannot fairly be construed as offering legal advice. The dictionary definition of "advice" is a "recommendation regarding a decision or course of conduct." Although arguably the leaflets state plaintiff's interpretation of the law, the only recommendation the leaflets make is that the recipient attend plaintiff's presentation and/or contact him for further information. The leaflets do not advise recipients to cease paying child support. Rather, they present plaintiff's views on the law and invite the recipient to learn more at plaintiff's meetings….

Howard does not suggest that merely stating one's interpretation of the law is unlicensed legal advice and therefore unprotected speech. Howard's concern, rather, was with unlicensed individuals who offer to perform legal services, including the delivery of legal advice, such as advice on procuring marital dissolution. If plaintiff in his leaflets had offered to assist men in the legal process of challenging their child support obligations, this case arguably might be analogous to Howard. But plaintiff's leaflets offer nothing more than a future meeting at which more information will be provided.

To be clear, had the leaflets urged men not to pay their child support obligations based on plaintiff's interpretation of the law, those leaflets still would not necessarily have constituted the unlicensed provision of legal advice. People v. Landlords Professional Services (Cal. App. 1989) concluded that it did not constitute the unauthorized practice of law for a nonlawyer to provide "a manual, even a detailed one containing specific advice, for the preparation of an unlawful detainer action and the legal incidents of an eviction" so long as the nonlawyer "did not personally advise the client with regard to his specific case." We, however, need not address this hypothetical issue given our conclusion that plaintiff's leaflets do not advise any action other than to attend plaintiff's meetings.

Defendants argue plaintiff intends to provide "face-to-face" legal advice to men at the Centers and at his meetings. Defendants identify no evidence that plaintiff has, or intends to provide legal advice to people at the Centers, nor do they identify evidence regarding the content of any meeting outside the Centers, apart from the brief description in the leaflets themselves. Indeed, according to plaintiff's deposition testimony, he has yet to hold a meeting because no one has responded to his leaflets. We thus do not have the record on which to base a decision on whether the advertised meetings would cross the line into unlicensed legal advice….

This is similar to the conclusion by the Washington Court of Appeals in September that a doctor can't be disciplined by the Washington Medical Commission for blog posts "downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic." It's also why I can blog about the law of states other than California, even though I'm only licensed to practice law in California (though I hope my blog posts are more accurate than Salazar's comments appeared to have been, at least based on the court opinion).

D. Gill Sperlein represents plaintiff; Marc Randazza and Alex Shepard (Randazza Legal Group, PLLC) also filed an amicus brief supporting plaintiff on this point.

Comments

[wvattorney13]

"Defendants identify no evidence that plaintiff has, or intends to provide legal advice to people at the Centers, nor do they identify evidence regarding the content of any meeting outside the Centers, apart from the brief description in the leaflets themselves. Indeed, according to plaintiff's deposition testimony, he has yet to hold a meeting because no one has responded to his leaflets. We thus do not have the record on which to base a decision on whether the advertised meetings would cross the line into unlicensed legal advice."

That seems willfully blind. I would guess that they aren't watching football at the meetings. Maybe a lonely wife would buy this. "Sure, you saw me leave the bar with her and we walked into a hotel together, but you have no PROOF of what we did inside."

[Michael P]

Why is it willfully blind to refrain from punishing him for UPL that hypothetically might occur in meetings that have never taken place? If there had been meetings, attendees could be called as witnesses to testify about what happened there -- but there have been neither meetings nor attendees (yet).

[Stupid Government Tricks]

Because the lawyering profession wants to limit how many lawyers there are, because they want to keep their hourly rate as high as possible; occupational licensing, to be more specific.

It cracks me up how the government controls every aspect of the judicial system — number of courts and judges, number of law students and graduates and lawyers, number of laws, number of prosecutors, which laws to prosecute against whom — and then cry like baby crocodiles at how they can't speed up the court system.

[David Nieporent]

I oppose occupational licensing, but this is a dumb take that shows a complete lack of knowledge of the legal industry.

[David Nieporent]

I would guess that they aren't watching football at the meetings.

Did you read the opinion — even the part you quoted? There weren't any meetings.

[JHR]

The First Amendment protects the right to give legal advice, regardless of whether one is licensed to practice law.

[Jack Jordan]

JHR, it's far from true that expression and communication cannot be regulated (even prosecuted and punished as a crime) merely because it's expression and communication.

People deceiving other people by (1) pretending to be qualified to provide legal advice, (2) purporting to provide legal advice and (3) taking money from unwitting clients for such purported advice should be prosecuted for their deceit. Copious other misrepresentation or deceit has been made criminal consistent with our Constitution. See, e.g., 18 U.S.C. 912 (impersonating a government officer); 18 U.S.C. 709 (abusing names of federal agencies); 18 U.S.C. 712 (abusing words such as “Federal” or “United States”); 18 U.S.C. 1001 (knowingly false statements in government proceedings); 18 U.S.C. 1623 (perjury).

Our Constitution clearly doesn't say that laws "abridging" any "speech" are unconstitutional. It says that laws "abridging" only "the freedom of speech" and "press" are unconstitutional, The Constitution, itself, expressly regulates some speech. It expressly compels or permits some speech and precludes other speech. See, e.g., Articles II and VI (requiring oaths and precluding religious tests). See, e.g., Amendment V (permitting compulsion of testimony by witnesses and precluding compulsion to testify against self).

Justice Jackson (writing for the SCOTUS majority) shed light on an important concept in West Virginia State Board of Education v. Barnette in 1943. SCOTUS emphasized that it is actually "our duty" (at least, of legislators, lawyers and judges, but actually of all Americans) "to apply the Bill of Rights to assertions of official authority" to fulfill our "task of translating the majestic generalities of the Bill of Rights" (and other parts of our Constitution) which were "conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of" our own time. "These principles" (in our original Constitution and early amendments) "grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to" the "soil" of our country in our time.

[Jack Jordan]

wvattorney13, Salazar's speech was on a public issue that our Constitution precludes our public servants from abridging. Our “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)) (cleaned up). See also Snyder at 453 (discussing when “[s]peech deals with matters of public concern”).

Our public servants “may not prohibit” any “modes of expression and association protected by the First and Fourteenth Amendments” by merely invoking the mere general “power to regulate the legal profession.” NAACP v. Button, 371 U.S. U.S. 415, 428-429 (1963).

Our public servants “may not, under the [mere] guise of prohibiting professional misconduct, ignore” (knowingly violate) “constitutional rights” of lawyers, litigants, or the general public. Id. at 439. Clearly, “it is no answer” to “constitutional claims” that the mere “purpose of” any “regulations” (including prohibiting the unlicensed practice of law) “was merely to insure high professional standards.” Id. at 438-439.

[ReaderY]

Even if the pamphlets had advised men to stop paying child support, they would likely represent general abstract advocacy without a nexus to a specific individual or context.

[Michael P]

I give a [one-hour] pre[sen]ta[t]ion in Riverside to teach men that they do have the r[e]pr[o]ductive right to choo[s]e too and why they are not r[e]sponsible for supporting a woman's r[e]pr[o]ductive d[ec]i[s]ion to have a child.

Is there general advice on when to edit an (apparently) typo-filled source with so many brackets, rather than just giving the original with a single annotation like [sic] or the corrected version with [cleaned up]?

Indeed, according to plaintiff's deposition testimony, he has yet to hold a meeting because no one has responded to his leaflets.

This seems unsurprising, given the above.

[Rossami]

Simpler would be to simply strike down Business and Professions Code section 6126 as unlawful protectionism of the legal cartel. Professional licensing should be extremely rare and limited to those very few situations where prospective customers are completely unable to evaluate the quality of a life-and-death service provider. ER doctors make the cut. Lawyers do not. (And hairdressers and horse massagers most certainly do not.)

[Stupid Government Tricks]

I don't believe any occupation makes the cut, not even ER doctors. Hospitals are quite capable of checking school performance and work history, and I doubt even 1 out of a thousand ER patients checks certificates hanging on a wall.