Supreme Court hears case on lawyers' free-speech rights

Perhaps it is hard to make anyone too alarmed about the free-speech rights of lawyers -- even when the people you want to alarm are the lawyers on the Supreme Court.

A small Minnesota law firm was at the court Tuesday, asking the justices to declare unconstitutional a 2005 federal law that was meant to prevent bankruptcy abuse. One of its provisions forbids lawyers from advising clients to "incur more debt" if the clients are contemplating filing for bankruptcy.

For one thing, the firm's lawyer G. Eric Brunstad Jr. told the justices, that might sometimes be a legitimate thing to do. But more important, he said, the law interferes with the First Amendment and a lawyer's responsibility to give "unfettered, candid advice."

The law "proscribes truthful information about entirely lawful activity, it whipsaws the attorneys who are trying to apply it, it creates an impossible situation for them, and it harms the client," said Brunstad, who is representing protesting lawyers in the Edina, Minn., firm of Milavetz, Gallop & Milavetz.

To which Justice Antonin Scalia replied: So?

"That's why it's a stupid law," Scalia said. But before Brunstad could make another point, he added: "Now, where is the prohibition of stupid laws in the Constitution?"

As Justice John Paul Stevens reminded, the court tries to avoid constitutional questions about Congress's actions when there are other ways to judge a statute. So the justices peppered Brunstad with questions and hypotheticals, although some seemed more devil's-advocate than hostile.

Perhaps the law only reinforces rules prohibiting lawyers from giving their clients unethical advice, Justice Sonia Sotomayor said.

"What in the First Amendment would otherwise give you that right?" she asked Brunstad.

Brunstad said Congress didn't have First Amendment concerns in mind when it passed the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005, but lawyers Robert Milavetz and Barbara Nevin challenged the law right away.

The heart of their four-year legal battle has been over the "incur more debt" provision. They argue that there are times when those in dire financial situations should take on more debt -- to refinance a mortgage for a lower interest rate, for instance, or to buy a car necessary for work.

The U.S. Court of Appeals for the 8th Circuit agreed that the provision violates the First Amendment.