Oral argument: Dec. 1, 2009
Appealed from: United States Court of Appeals for the Eighth Circuit (Sept. 4, 2008)
This case concerns the application and constitutionality of three Bankruptcy Code provisions applicable to debt relief agencies: 11 U.S.C. §§ 526(a), 528(a)(4), and 528(b)(2)(B). Minnesota law firm Milavetz, Gallop & Milavetz, P.A. claims exemption from the provisions, arguing that an attorney is not a “debt relief agency.” Furthermore, it claims that 11 U.S.C. § 526(a), which prevents a “debt relief agency” from counseling a client to incur additional debt in contemplation of bankruptcy, is an unconstitutionally overbroad restriction of free speech. Finally, Milavetz argues that 11 U.S.C. §§ 528(a)(4) and 528(b)(2)(B), which require a “debt relief agency” to make certain disclosures in their advertisements, violate the First Amendment. The United States argues that the statutes apply to attorneys and that they are reasonable and specific restrictions on speech. This case’s outcome will potentially affect bankruptcy laws, disclosure laws, and the legal advice that a lawyer may provide a client.
- [Question(s) presented]
Milavetz, Gallop & Milavetz v. United States
1. Whether the appellate court's interpretation of attorneys as "debt relief agencies" is contrary to the plain meaning of 11 U.S.C. § 101(12A).
2. Whether 11 U.S.C. § 528, which as applied to attorneys, restrains commercial speech by requiring mandatory deceptive disclosures in their advertisements, violates the First Amendment free speech guarantee of the United States Constitution.
3. Whether 11 U.S.C. § 528, requiring deceptive disclosures in advertisements for consumers and attorneys, violates Fifth Amendment Due Process.
United States v. Milavetz, Gallop & Milavetz
1. Whether Section 526(a)(4) precludes only advice to incur more debt with a purpose to abuse the bankruptcy system.
2. Whether Section 526(a)(4), construed with due regard for the principle of constitutional avoidance, violates the First Amendment.
Whether attorneys are considered “debt relief agencies” under 11 U.S.C. § 101(12A), and if so, whether the requirements of 11 U.S.C. §§ 526 and 528 violate the First Amendment of the United States Constitution.
On April 20, 2005, Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). The BAPCPA amended the Bankruptcy Code in three important ways. First, it added a new term to the Code: “debt relief agency.” Second, it restricted a “debt relief agency” from advising clients to take on more debt in contemplation of a bankruptcy filing. Third, it required a “debt relief agency” to place a disclosure on its bankruptcy-related advertisements identical or substantially similar to the following: “We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.”
Milavetz, Gallop & Milavetz, P.A. is a Minnesota law firm that practices bankruptcy law. The firm, its president, and two of its clients filed a suit against the United States in the District Court for the District of Minnesota, seeking a declaratory judgment that 11 U.S.C. §§ 526(a), 528(a)(4), and 528(b)(2)(B) do not apply to attorneys or law firms and are unconstitutional if applied thereto. The district court ruled in favor of Milavetz, finding that attorneys in the District of Minnesota are excluded from the phrase “debt relief agency” and that §§ 526(a)(4), 528(a)(4), and 528(b)(2) are unconstitutional as applied to attorneys in the District of Minnesota.
The Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. . The court of appeals held that attorneys who provide bankruptcy assistance to assisted persons are “debt relief agencies” under the Bankruptcy Code and, thus, subject to §§ 528(a)(4) and 528(b)(2). Additionally, the court of appeals held that § 526(a)(4) is unconstitutional as applied to these attorneys, but that §§ 528(a)(4) and 528(b)(2) are constitutional. In ruling that § 526(a)(4) is unconstitutional, the court of appeals reasoned that § 526(a)(4) is neither narrowly tailored nor necessarily limited to prevent only the speech that the government has an interest in restricting. It found § 526(a)(4)’s prohibition of “advising an assisted person to incur any additional debt when the assisted person is contemplating bankruptcy” to be overly broad, because it encompasses situations in which an assisted person would lack any intent to “manipulate the bankruptcy system . . . or take unfair advantage of the bankruptcy discharge.” In ruling that §§ 528(a)(4) and 528(b)(2) are constitutional, the court reasoned that their disclosure requirements are reasonably and rationally related to the government’s interest in preventing the deception of consumer debtors.
Both parties petitioned the Supreme Court for writ of certiorari. The Court granted both writs on June 8, 2009 and consolidated the cases.
Both parties agree that Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) to combat abuse of the bankruptcy system. The parties do not agree, however, as to whether the phrase “debt relief agency” encompasses attorneys and whether §§ 526(a)(4), 528(a)(4), and 528(b)(2) are constitutional as applied to attorneys. , A decision favoring either party will greatly affect how lawyers counsel bankruptcy clients.
One of Milavetz’s supporters is the Commercial Law League of America (“CLLA”), an organization comprised of credit and finance experts. . CLLA believes that inclusion of attorneys in the definition of “debt relief agency” will severely limit attorneys’ ability to adequately represent their clients. They assert that not all behavior banned by § 526(a)(4) is illegal and that incurring debt before filing for bankruptcy in some cases may be beneficial to both the debtor and creditor. For example, they argue that it may be beneficial for a debtor to refinance an existing mortgage in order to get a lower interest rate.
The United States does not believe that § 526(a)(4) is that inclusive. It believes that § 526(a)(4) only restricts the incurrence of new debt with the intent of defrauding creditors prior to bankruptcy. It asserts that the BAPCPA is necessary to restore personal integrity and responsibility in the bankruptcy system. The United States emphasizes that Congress passed the BAPCPA after determining that bankruptcy professionals, attorneys included, were engaging in misleading and abusive practices, filing unnecessary bankruptcy petitions and jeopardizing debtors’ ability to obtain discharge of their debt. The United States argues that Congress designed the BAPCPAto ameliorate these abusive practices and to ensure fairness for both creditors and debtors.
The American Bar Association (“ABA”), one of Milavetz’ supporters, does not dispute that Congress intended to curb abusive practices. . The ABA does, however, express concern that application of the BAPCPA to attorneys will “significantly undermine attorney-client privilege.” Particularly, it is concerned that the BAPCPAwillrestrict communications between attorneys and their clients, and makes those communications discoverable. The ABA states that enforcement of § 526(a)(4) will require inquiries into the attorney-client discussions, to determine whether the attorney, in fact, advised the client to incur debt in contemplation of bankruptcy. .
The United States does not find the ABA’s concerns compelling and counters that “[a] licensed attorney’s ethical obligations to the bench and the profession sometimes require her to exercise a degree of restraint in what she advocates and how.” The United States notes that the government has a responsibility to maintain high standards in licensed professions. From its point of view, because attorneys are licensed members of the court, they should be subject to speech restrictions that the ordinary citizen is not.
Milavetz’s supporters emphasize that, as licensed members of the court, attorneys are already subject to speech restrictions. For example, they note that the ABA Model Rules of Professional Conduct already prohibit attorneys from counseling a client to commit fraud in a bankruptcy court. They fear that if attorneys are “debt relief agencies,” they may be subject to conflicting obligations under the BAPCPA and state ethics rules.
An additional concern for supporters of the United States is that a victory for the petitioners would detrimentally change the standard of review for disclosure laws. They fear that adopting the higher level of scrutiny that Milavetz proposes would threaten the federal, state, and local disclosure laws, including laws that regulate warnings concerning mercury in light bulbs and calorie disclosures in fast food restaurants. They argue that important disclosure laws that protect consumers from dangerous products may not survive under the proposed heightened scrutiny standard. From their point of view, the current standard allows for the free flow of commercial information.
The Eighth Circuit made three key holdings in the lower court. . First, it held that attorneys are “debt relief agencies.” Second, it held that 18 U.S.C. § 526(a)(4) is unconstitutionally overbroad. Third, it held that 18 U.S.C. §§ 528(a)(4) and (b)(2) are reasonably related to a government interest and thus constitutional. Milavetz appeals the Eight Circuit’s first and third holdings, while the United States challenges the second holding. ,
Is an Attorney a “Debt Relief Agency?”
The bankruptcy statutes at issue in this case, 11 U.S.C. §§ 526(a), 528(a)(4), and 528(b)(2)(B), apply to “debt relief agencies.” The bankruptcy statute defines a “debt relief agency” as “any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration.” The statute includes five exceptions to this definition, none of which lists “attorney” or a variation thereof.
Milavetz argues that an attorney is not a “debt relief agency.” It states that if Congress intended to include attorneys within the definition, it would have done so expressly by mentioning the term “attorney” at least somewhere in 11 U.S.C. § 101(12A). It notes that Congress specifically included a “bankruptcy petition preparer” as a “debt relief agency,” even though it is intuitive that such a person provides “bankruptcy assistance.” Thus, it argues, since Congress was careful to include a “bankruptcy petition provider,” as a “debt relief agency,” it, too, would have been just as careful to specifically include “attorney” had it intended for the statute to cover attorneys.
In response, the United States claims that an attorney is clearly a “debt relief agency.” First, it argues that attorneys are people who provide “bankruptcy assistance.” The statutory definition of “bankruptcy assistance” is “providing…advice [or] counsel…or appearing in a case or proceeding on behalf of another, or providing legal representation.” Next, it emphasizes the fact that “attorney” is not among the list of enumerated exceptions to “debt relief agency.” Finally, it contends that legislative history, particular two House Reports and hearings on the issue, shows that Congress intended for these statutes to address abuses by attorneys.
Is 11 U.S.C. § 526(a)(4) constitutional?
Under 11 U.S.C. § 526(a)(4), “a debt relief agency shall not…advise an assisted person or prospective assisted person to incur more debt in contemplation of such person filing” for bankruptcy protection.
Milavetz argues that § 526(a)(4) is unconstitutional, because it prohibits speech protected by the First Amendment. For example, Milavetz contends, the law prevents an attorney from answering simple financial advice questions such as “May I co-sign a student loan for my child’s education?” because this activity, although legal, would incur debt. Milavetz asserts that prohibiting an attorney from answering such a question is unconstitutional because, in Legal Services Corp. v. Velasquez,the Supreme Court held that private legal advice to a client is protected speech.
The United States argues that the statute is not overbroad because it targets the accumulation of debt with the specific intent to abuse bankruptcy laws. It contends that the key restricting language in the statute is “in contemplation of [bankruptcy].” Itstates that this specific legal phrase “has been construed in the bankruptcy context to mean actions taken with the intent to abuse the protections of the bankruptcy system.” Also, it quotes Black’s Law Dictionary, which defines “contemplation of bankruptcy” as being “often coupled with action designed to thwart the distribution of assets in a bankruptcy proceeding.” id.
In support of its challenge, Milavetz argues that § 526(a) fails the constitutional test of strict scrutiny. To pass strict scrutiny, a law must (1) concern a compelling state interest and (2) be narrowly tailored to address that interest. Milavetz argues that § 526(a) does not address a compelling state interest. Furthermore, Milavetz claims that the law is not narrowly tailored because it does not use the least restrictive means to address the issue of abusive conduct. For example, it states, Congress could have specifically rendered abusive conduct illegal, rather than broadly prohibiting any and all advice on incurring more debt.
In response, the United States argues that strict scrutiny does not apply in this case because the Supreme Court, in Gentile v. State Bar, held that attorneys are subject to heightened restrictions on speech. The United States argues that this different First Amendment standard applies in all legal contexts, including bankruptcy representation. Under the United States’ reading of §526(a) to include only abuse of the bankruptcy laws, § 526(a) is constitutional because courts have upheld a state’s right to sanction an attorney for counseling a client to engage in illegal activity.
Are 11 U.S.C. §§ 528(a)(4) and 528(b)(2)(B) constitutional?
11 U.S.C. §§ 528(a)(4) and 528(b)(2)(B) require that a “debt relief agency” conspicuously include the following sentence or one substantially similar thereto, in all advertisements: “We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.”
Milavetz argues that §§ 528(a)(4) and 528(b)(2)(B) are unconstitutional restrictions on free speech. Milavetz notes that the government’s stated goal in enacting §§ 528(a)(4) and 528(b)(2)(B) was to regulate deceptive advertising, yet the statute is so broad that it encompasses truthful and non-deceptive advertising.
Milavetz argues that, to regulate its truthful, non-deceptive advertising, the government must meet the three-pronged standard of intermediate scrutiny: the law must (1) concern a substantial government interest, (2) directly advance that interest, and (3) be narrowly drawn. Milavetz argues that the government fails to satisfy any of the three requirements.
First, Milavetz argues that the government has no substantial governmental interest in regulating attorneys’ advertisements. Next, Milavetz contends that the government fails to establish how §§ 528(a)(4) and 528(b)(2)(B) directly advance any substantial interest in preventing deceptive advertising in the field of bankruptcy. Finally, Milavetz argues that the law is not narrowly drawn, as evidenced by the fact that Milavetz has to make these disclosures despite its truthful advertising.
The United States argues that intermediate scrutiny does not apply because the Supreme Court, in Zauderer v. Office of Disc. Counsel, held that the lower reasonable relationship to a valid state interest test applied to public disclosure laws like §§ 528(a)(4) and 528(b)(2)(B). In applying the Zauderer standard, the United States argues that the disclosure requirement bears a reasonable relationship to governmental interest in preventing false advertising.
The United States notes that Milavetz’s lawsuit was a facial challenge and not an as-applied challenge, meaning that Milavetz challenged the law itself as opposed to the application of the law to Milavetz’s own disclosures. – The United States argues that because of its attack on the law itself, Milavetz’s claim that its own advertising is non-deceptive is irrelevant because that issue is not before the Court. In addition, the United States emphasizes that the statute allows “debt relief agencies” to alter the specific disclosure language. Therefore, it argues, the law does not require misleading disclosures because each attorney could alter the language as needed.
This case chiefly addresses the way in which lawyers may counsel their clients on bankruptcy matters. More specifically, this case determines whether, under the Bankruptcy Abuse Prevention and Consumer Protection Act, attorneys are included in the phrase “debt relief agencies,” and if so, whether the Act violates the First Amendment of the United States Constitution as applied to attorneys. While the Court’s analysis will focus on statutory language such as “debt relief agency” and “in contemplation of bankruptcy,” the Court will also address Congress’s ability to address deceptive attorney activity without overly restricting free speech.
Edited by: Lucienne Pierre
- American Bankruptcy Law Journal, Erwin Chemerinsky: Constitutional Issues Posed in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
- New York Times, Adam Liptak: Free-Speech Case for a Debt-Ridden Age (June 22, 2009)