Scalia in Lawyer Free Speech Case: Constitution Doesn’t Ban Stupid Laws
Justice Antonin Scalia and Chief Justice John G. Roberts Jr. appeared to differ yesterday during oral arguments on whether a restriction on bankruptcy advice violates lawyers’ First Amendment rights.
A small Minnesota law firm is challenging the 2005 law that prohibits debt relief agencies from advising clients to “incur more debt” if they are contemplating filing for bankruptcy. The New York Times, the Washington Post and the National Law Journal covered the arguments.
“It’s a stupid law,” Scalia said. “Where is the prohibition of stupid laws in the Constitution?”
Roberts, however, said the law’s goal of preventing bankruptcy abuse may affect lawyers giving prudent legal advice. “It seems to me that a lawyer trying to give correct, legal, ethical advice has got to pause before every sentence” and worry about legal violations, he said.
The ABA filed an amicus brief in the case, Milavetz, Gallop & Milavetz v. United States, arguing that applying the bankruptcy law provision to lawyers would restrict their ability to provide appropriate advice to clients and risk subjecting privileged communications to discovery. Read the brief (PDF).
The Milavetz firm challenging the law has 10 lawyers and is located in the Minneapolis suburb of Edina, the National Law Journal reports. It handles bankruptcy, personal injury, family law, workers’ compensation and criminal defense. Name partner Robert Milavetz is a former legal aid lawyer who has taken on First Amendment cases since he first opened his practice in 1963.
“I’ve won over 100 First Amendment cases, including the first where a jury in a criminal case found hard-core pornography protected under the First Amendment,” Milavetz told the NLJ.
Prior coverage:
ABA Journal: “A Debt-Defying Act”
ABAJournal.com: “ABA Brief Says Lawyer Advice Shouldn’t Be Restricted by Bankruptcy Law”
ABAJournal.com: “Supreme Court to Consider Bankruptcy Law Restriction on Legal Advice”
ABAJournal.com: “8th Circuit: Bankruptcy Provision Violates Lawyer Free Speech Rights”
Last updated at 2:08 p.m. to add a link to the related ABA amicus brief.
