Friday, June 19, 2009

Supreme Court Grants Cert in Attorney Speech Case

The Supreme Court has granted certiorari in Milavetz, Gallop & Milavetz, P.A. v. United United States, 541 F.3d 785 (8th Cir. 2008), cert granted, 2009 U.S. LEXIS 4277 (6/8/09). The Milavetz case held that the provision in BAPCPA preventing attorneys from advising debtors to incur debt in contemplation of bankruptcy was an unconstitutional restriction on the right to free speech under the First Amendment. Although it is not in direct conflict, the Fifth Circuit took a somewhat different tack on this issue, finding that the statute was not facially overbroad and reserving the issue of whether it could be overbroad as applied in a specific case. Hersh v. United States, 553 F.2d 743 (5th Cir. 2008). Thus, the Eighth Circuit said that the statute was unconstitutional on its face, while the Fifth Circuit held that a constitutional challenge would have to wait until there was an actual case where an attorney was punished for providing advice contrary to the statute.

Milavetz also had two other rulings, finding that attorneys were Debt Relief Agencies and finding that the mandatory disclosures (i.e., "We a Debt Relief Agency") was constitutional. Most courts have agreed with these conclusions.

Milavetz had one interesting sidenote. The Commercial Law League of America, a professional group, which represents the interests of creditors, filed an amicus brief in support of the plaintiffs' position. Thus, this is a case where a creditor's trade group spoke up for the speech rights of debtor's lawyers.

The order granting certiorari did not limit itself, so that it appear that the Supreme Court will take up all three issues.


Patches said...

Very odd to see that trade group file that friend of the Court brief. Hey, if they can legislate away attorney client privilege why could it not happen to them as well?

Bankruptcy lawyers California said...

Interesting case to read about. Thanks!

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Social Networking Platform said...

I'm glad the supreme court finally made a decision on this. I was a California Bankruptcy Lawyer for years and this case really bugged me.

chicago bankruptcy attorneys said...

Good Decision. was a case of interest and finally the result is as expected.