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Unpublished Paper
The Constitutionality & Ethics of Licensing Lawyers to Advise Designated Foreign Terror Organizations
ExpressO (2011)
  • Elinor R Jordan, J.D.

By design, lawyers play a foundational role in U.S. democracy. In representing their client’s causes, they create a bulwark against repressive government action. What would happen to that role if the government had to issue a license before an attorney could legally present her client’s case? Many scholars have reviewed Holder v. Humanitarian Law Project, wherein the Supreme Court held that a statute prohibiting lawyers from giving free legal advice to Designated Foreign Terrorist Organizations (“DFTOs”) does not violate lawyers’ First Amendment rights of free speech and association. However, neither the Court, nor scholars have directly addressed a statutory window left open for attorneys who wish to provide legal advice to DFTOs. Code provisions 31 CFR § 597.505 and 31 CFR § 501.801 (collectively “the licensing scheme”) describe a mechanism whereby attorneys, under certain circumstances, may advise DFTOs.

My essay begins with a bold argument: that lawyers have a First Amendment interest in their choice of cause and client. I explore the licensing scheme, first to determine whether it represents a valid prior restraint under the Court’s free speech jurisprudence, and second to examine ethical challenges for attorneys who seek both to comply with the licensing scheme and to maintain baseline standards of professional conduct rules. The essay asserts that, in order to provide an adequate window to Humanitarian Law Project’s slamming door and protect lawyers’ First Amendment rights, the licensing scheme must be reformed to provide clear standards to licensing administrators, and must allow attorneys to acquire licenses for some pro bono services without providing detailed information about their clients that would breach their ethical duty of confidentiality.

Publication Date
September 3, 2011
Citation Information
Elinor R Jordan. "The Constitutionality & Ethics of Licensing Lawyers to Advise Designated Foreign Terror Organizations" ExpressO (2011)
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