[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

legislation violate the First Amendment. 18
Legal Services Gag Orders In Legal Services Corp. v. Velazquez, the Supreme Court
invalidated a gag rule that restricted Legal Service Corporation lawyers from challenging
existing welfare laws when representing clients seeking welfare benefits. 19 The court held
that this speech restriction was an attempt to “exclude from litigation those arguments and
theories Congress finds unacceptable but which by their nature are within the province of
the courts to consider.” 20 In invalidating the restriction, the Court relied not only on the
First Amendment, but also on constitutional separation of powers principles. The
legislation threatened “serious impairment of the judicial function” because it prohibited
“expression upon which the courts must depend for the proper exercise of the judicial
power.” 21
Beyond the First Amendment
Other fundamental constitutional provisions have played a role in shaping the legal
regulation of lawyers. We have seen, for example, how the Supreme Court has interpreted
the Privileges and Immunities Clause to overturn residency requirements that limit bar
admission. 22
The Supremacy Clause The Supremacy Clause is the focus of litigation when federal law
clearly preempts state provisions to the contrary. For example, a lawyer licensed to practice
before the United States Patent Office successfully opposed a state’s claim that he was
engaged in the unauthorized practice of law. The Supreme Court held that the state
unauthorized practice law must yield to incompatible federal legislation, and that the
Commissioner of Patents was well within his statutory authority to license nonlawyer
patent practitioners. 23
Although Congress has the power to preempt contrary state legislation, it must be clear
about its intent. So, for example, when the Department of Justice relied on a general federal
“housekeeping statute” that authorizes executive department officials to set up offices and
file governmental documents to justify a substantive regulation of lawyer conduct contrary
to an existing state court rule, the Eighth Circuit held that the Department lacked “valid
statutory authority” to exempt its lawyers from state professional regulation. 24 Shortly
thereafter, Congress passed the McDade Amendment, which specifically requires federal
prosecutors to abide by state ethics rules. 25
Due Process In cases where lawyers have been admitted to the bar and have a vested right to
practice law, courts impose procedural due process requirements on limitations of the right.
Similar due process guarantees protect lawyers and others who are held in criminal
contempt. 26
In cases where lawyers seek admission, courts are much less likely to impose procedural
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