Milavetz, Gallop & Milavetz v. United States

Brief for Petitioners

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Petitioners Robert Milavetz and Barbara Nevin are attorneys who provide bankruptcy ad-vice and counseling to clients. They practice as part of petitioner law firm Mi-lavetz, Gallop, and Milavetz, P.A. Petitioners Ronald and Lynette Richardson are two individuals who sought bankruptcy advice from the firm.

Petitioners filed an action in the district court seeking a declaration that sections 526(a)(4), 528(a)(4), and 528(b)(2)(B) do not ap-ply to attorneys. Alternatively, petitioners con-tended that, if these provisions apply to attor-neys, they are unconstitutional under the First Amendment.

On December 7, 2006, the district court denied the Government’s motion to dismiss, ruling instead that sections 526(a)(4), 528(a)(4), and 528(b)(2)(B) are unconstitutional, and that they do not apply to attorneys.

On appeal, the Eighth Circuit affirmed the district court’s ruling that section 526(a)(4) is unconstitutional, but reversed the court’s hold-ings concerning sections 528(a)(4) & (b)(2)(B), and whether the phrase “debt relief agency” in-cludes “attorneys.”

Turning to sections 528(a)(4) & (b)(2)(B), the court upheld these provisions, reasoning that they were “reasonably related” to the govern-mental interest of requiring accurate advertising disclosures. Pet. App. A-39. The court also con-cluded that the phrase “debt relief agency” plainly encompasses attorneys.

As explained more fully below, the Court should conclude that the phrase “debt relief agency” does not include at-torneys, and, therefore, that sections 526(a)(4), 528(a)(4), and 528(b)(2)(B) do not apply to petitioners. Alternatively, the Court should affirm the decision of the Eighth Circuit that section 526(a)(4) is unconstitutional, and reverse the de-cision of the lower court upholding the constitu-tionality of sections 528(a)(4) & (b)(2)(B).

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Published In: Bankruptcy Updates, Conflict of Laws Updates, Constitutional Law Updates, Professional Malpractice Updates

Reference Info:Appellate Brief | Federal, U.S. Supreme Court | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Marc S. Stern, Attorneys at Law | Attorney Advertising

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