4th U.S. Circuit Court of Appeals
To expand its membership, a plaintiff trade association wants to provide legal services to its members. But North Carolina law forbids corporations from practicing law. The trade association thus sued to enjoin enforcement of state unauthorized practice of law statutes. The district court properly granted summary judgment for the defendants.
The North Carolina unauthorized-practice-of-law statutes do not unconstitutionally restrict the plaintiff’s associational rights. U.S. Supreme Court precedent distinguishes between the commercial practice of law and associating for non-commercial purposes to advocate the enforcement of legal and constitutional rights. Here, the plaintiff’s desired conduct would be for commercial ends and would address only private concerns. It also would not facilitate access to the courts, and it would pose distinct ethical concerns.
When organizations like the NAACP and the ACLU solicit clients and retain lawyers to represent them, they express their commitment to expanding and guarding civil rights. In contrast, this plaintiff wants to help its members resolve private differences by drafting legal documents and advising employers on labor and employment issues. The plaintiff thus seeks to practice law for commercial ends like a private attorney, not to associate for political or otherwise public goals.
The UPL statutes also do not unlawfully burden the plaintiff’s freedom of speech. This court holds that the state law passes—and only needs to pass—intermediate scrutiny. Existing Supreme Court precedent suggests that intermediate scrutiny should apply to regulations of conduct that incidentally impact speech. Here, professional integrity could suffer if the state allows lawyers to practice on behalf of organizations owned and run by nonlawyers and to collect legal fees from clients. Nonlawyers would likely supervise lawyers representing third-party clients for the plaintiff, which could compromise professional judgment and generate conflicts between client interests and the corporation’s interests. The state has addressed these problems by proscribing law practice by organizations that pose the most danger, while exempting organizations that pose little danger.
Further, the UPL statutes provide fair notice of what it means to practice law. The statutes and associated case law collectively provide an extensive definition of what it means to practice law. Between them, a person of ordinary intelligence would have fair notice of what the laws statutes prohibit. Indeed, the plaintiff itself understood what it means to practice law well enough to avoid giving its members legal advice. Accordingly, the statutes are not unconstitutionally vague.
The defendant’s convictions for filing three false tax returns and obstructing a grand jury proceeding will stand. Contrary to the defendant’s argument, providing fabricated loan documents to a U.S. Attorney’s office was not too distant from an ongoing grand jury proceeding to meet the nexus requirement for obstruction. This court thus joins the Second Circuit in recognizing that the discretionary actions of a third person can form part of the nexus to an official proceeding.
The official proceeding that the defendant attempted to influence was not some far-off possibility. The grand jury had in fact convened. His actions show a clear relationship in time, causation or logic with the grand jury proceedings. He distributed the false loan documents just months after the grand jury subpoena was served upon him, and those documents attempted to explain away transactions reflected in the subpoenaed documents. As with a subpoenaed witness, there is a strong likelihood that the U.S. Attorney’s office would serve as a channel or conduit to the grand jury for the false evidence or testimony presented to it.
The district court properly instructed the jury on the nexus requirement, and the jury’s determinations pursuant to that instruction were based on the substantial evidence presented at trial.
U.S. District Court – Virginia Eastern
In this civil-rights actions, the plaintiff fails to establish all the elements of his claim that the defendants conspired to unlawfully arrest and prosecute him for engaging in election fraud.
Here, the plaintiff sued a county commonwealth’s attorney and an officer of the Virginia State Police for allegedly submitting false information in connection with the plaintiff’s candidacy for sheriff. But probable cause existed for the defendants to prosecute the plaintiff for election fraud, based on evidence that the plaintiff certified false information about his residency in his candidacy materials for sheriff. Because probable cause existed, the plaintiff cannot establish the elements for malicious prosecution. The plaintiff also was arrested pursuant to a facially valid warrant, so he similarly cannot prove his claims for false arrest and false imprisonment.
Motion for summary judgment granted.
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