FREEDOM OF ATTORNEY-CLIENT ASSOCIATION

Abstract

The purposes and core ideals underlying the right of association demonstrate that attorney association to provide legal advice, assistance, and representation (attorney-client association) deserves constitutional protection, as will be explored in Part II. Freedom of association protects the other enumerated rights found in the First Amendment, including free speech, peaceable assembly, and petitioning the government for redress of grievances. Constitutional protection of attorney-client association similarly secures these enumerated First Amendment rights, including attorney speech rights essential for lawful advocacy, peaceable assembly with others to discuss legal grievances, and the effective petitioning of government for redress. Further, freedom of association protects self-government, popular sovereignty, and access to democratic processes, all of which are strongly implicated when examining attorney-client association. Finally, freedom of association ensures that guilt is personal and cannot be imputed to those associating with the guilty unless they personally join in unlawful aims or actions. The HLP Court’s denial of the right of association contravenes this purpose by imposing guilt solely by association with a client who has engaged in unlawful acts. The purposes underlying the right of association thus demonstrate the need for recognition of freedom of attorney-client association. But even more fundamentally, as discussed in Part III, the right of attorney-client association is essential to the attorney’s role in the American system of justice, specifically, in protecting the life, liberty, and property of others and providing access to justice and the fair administration of law. Yet the HLP Court’s holding frustrates the attorney’s role in the administration of justice and the attorney’s duty to take on legal causes and provide access to justice even for unpopular clients. Finally, Part IV will discuss the extent of the right of attorney-client association, including appropriate limitations on that right. In general, attorneys have a right to associate with a client to provide legal advice, assistance, and representation. Regulators, however, can prohibit attorney association with clients where that association poses a significant risk of harm to clients or to others, as in cases involving conflicts of interest. Nevertheless, under such scenarios, regulations work to prohibit specific attorneys from associating with specific clients, but they do not create a blanket prohibition against all attorney assistance or representation of certain groups based on that group’s prior bad acts. Guilt by association has no place in prohibiting attorney-client association. Attorneys can be prohibited from counseling or assisting a client in committing a crime or fraud or related harms, but where attorneys are only engaging in lawful advice and assistance, their association with a guilty client cannot be proscribed.