More on the Supreme Court's decision in Holder v. HLP and possible constraints on attorney advice

Yesterday I said I would continue to update the list of links to comments on the recent decision by the Supreme Court in Holder by simply adding them to a previous post. But I want to point out a particularly interesting one here.

In a short comment over at the Legal Ethics Forum, Prof. Renee Newman Knake ponders on the applicability of the ruling in Holder to the more general context of lawyering. (She also provides lots of links to other articles that I had not seen yet.) This is a very important issue for all attorneys, but particularly for those who advise organizations involved in social activism and political activities.

She points out that because the Court's opinion upholds the ban on "material support" only for a limited scope of proposed speech, "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, [it is possible that] the Court would reach a different conclusion." However, she also points out that "[i]n the meantime . . . it seems inevitable that HLP's holding will have a chilling effect on attorney advice, as Justice Breyer suggests in his dissent."

On the other hand, she also reminds us that the Court has in the past expressed reluctance to allow restrictions on attorney advice. For example, she points out that in Legal Services Corp. v. Velazquez the Court stated that “[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.” Velázquez was a 5-4 decision about a federal statute prohibiting attorneys for the Legal Services Corporation from challenging the validity of a state or federal statute.

I like the cite from the opinion in Velázquez but we need to contrast it with the approach taken by the ninth circuit in Legal Aid Services of Oregon v. LSC, the more recent case upholding restrictions on some types of practice by organizations receiving aid from the Legal Services Corp. (available here). In fact, if this case goes before the Supreme Court (I have not checked to see if it was appealed), it might give the "new" Supreme Court a chance to revise or even 'take back' what it said in Velázquez.

It will be interesting to see what view the Supreme Court takes if confronted with the question of whether the ban on material support should apply to legal advocacy.