Revo v. Disciplinary Bd. of the Supreme Court for the State of N.M.

• Decision Date: 05 February 1997
• Docket Number: No. 96-2000,96-2000
• Citation: 106 F.3d 929
• Parties: , 25 Media L. Rep. 1437, 97 CJ C.A.R. 192 M. Terrence REVO, Plaintiff-Appellee, v. DISCIPLINARY BOARD OF THE SUPREME COURT FOR THE STATE OF NEW MEXICO, Luis G. Stelzner, Chairman; Christina Armijo, Linda S. Bloom, Felix Briones, Jr., Michael D. Bustamante, Charles W. Daniels, Patricia B. Murray, Larry Ramirez, Warren F. Reynolds, Alex Romero, John H. Schulke, Sarah M. Singleton, members, in their official capacities, Defendants--Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 929

106 F.3d 929

65 USLW 2539, 25 Media L. Rep. 1437,

97 CJ C.A.R. 192

M. Terrence REVO, Plaintiff-Appellee, v. DISCIPLINARY BOARD OF THE SUPREME COURT FOR THE STATE OF NEW

MEXICO, Luis G. Stelzner, Chairman; Christina Armijo, Linda

S. Bloom, Felix Briones, Jr., Michael D. Bustamante, Charles

W. Daniels, Patricia B. Murray, Larry Ramirez, Warren F.

Reynolds, Alex Romero, John H. Schulke, Sarah M. Singleton,

members, in their official capacities, Defendants--Appellants.

No. 96-2000.

United States Court of Appeals, Tenth Circuit.

Feb. 5, 1997.

Andrew G. Schultz, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, NM (Bruce Hall, Stephen Durkovich and Damon Ely, with him on the brief) for Defendants--Appellants.

Charles R. Peifer, Browning & Peifer, P.A., Albuquerque, NM (John Newman Carr, with him on the brief) for Plaintiff-Appellee.

Before KELLY, HOLLOWAY and WEIS, ^* Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendants, members of the Disciplinary Board of the Supreme Court of New Mexico (the Board), appeal from the district court's order enjoining enforcement of Rule 16-701(C)(4) of the New Mexico Rules of Professional Conduct. ¹ Rule 16-701(C)(4) bans all attorney direct mail advertisements to personal injury victims and family members of wrongful death victims, unless the recipient of the solicitation is a relative of the attorney sending the letter or has had a prior personal, business or professional relationship with that attorney. The district court found the rule unconstitutional, in violation of the First Amendment and the Equal Protection Clause. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. We grant the Board's unopposed motion to withdraw portions of its appendix not before the district court.

Background

Plaintiff, M. Terrence Revo, is a personal injury lawyer who practices in Albuquerque, New Mexico. He has been a member in good standing of the New Mexico and New York bars since 1978 and 1976 respectively. Following the United States Supreme Court's decision in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988), Mr. Revo began advertising by means of direct mail letters sent to persons injured in automobile accidents. He continued to do so until 1992, when the Supreme Court of New Mexico enacted Rule 16-701(C)(4), amending its Rules of Professional Conduct to ban all direct mail advertising to personal injury victims and family members of wrongful death victims. S.C.R.A. 16-701 (1995 Repl.) (as amended, effective August 1, 1992). At the same time that it adopted this complete ban on direct mail to accident victims, New Mexico adopted a procedure for screening all other lawyer advertisements. S.C.R.A. 16-707 (1995 Repl.) (as amended, effective August 1, 1992). By its terms, this screening procedure applies to all direct mail advertisements except those to personal injury victims, which are specifically banned by Rule 16-701(C)(4).

Mr. Revo sought a declaratory judgment that the ban was unconstitutional on First Amendment and Equal Protection grounds, as applied to him and the solicitation letter he proposes to send. ² After a one-week trial, both parties submitted thousands of additional pages of depositions and other documentary evidence for the court's further consideration, and the district court took the matter under advisement. Before rendering a decision, the district judge died. The case was assigned to another district judge, who gave the parties the option under Fed.R.Civ.P. 52 of retrying any part of the case. Waiving their right to retry the case, the parties submitted it on the record. The district court held that New Mexico's blanket ban on direct mail advertising is an unconstitutional violation of Mr. Revo's First Amendment and Equal Protection rights, and permanently enjoined its enforcement. The Board now appeals.

Discussion

In a First Amendment case, we have an obligation to make an independent examination of the whole record in order to make sure that the speech regulation does not constitute a forbidden intrusion on the field of free expression. Melton v. City of Oklahoma City, 879 F.2d 706, 713 (10th Cir.1989) (citing Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958-59, 80 L.Ed.2d 502 (1984)). Because of this obligation, and because of the unique procedural posture of this case, the Board contends that we owe no deference to the district court's findings and that we should substitute our own independent review of the evidence. Ordinarily, our review of the district court's findings of fact is under the clearly erroneous standard, even if those findings were based on documentary evidence and a cold record. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); United States v. Little, 60 F.3d 708, 714 n. 5 (10th Cir.1995). This case, however, turns primarily on the application of the First Amendment to the facts surrounding New Mexico's ban. Although the district court also held that the ban violated the Equal Protection Clause, we need not address that holding because the trial record makes it clear that Mr. Revo's equal protection claim was subsumed in his First Amendment claim. We review the district court's findings of constitutional fact and its ultimate conclusions of constitutional law de novo. Robinson v. City of Edmond, 68 F.3d 1226, 1230 n. 7 (10th Cir.1995); Yates v. Commissioner, 924 F.2d 967, 969 (10th Cir.1991).

Lawyer advertising is commercial speech and is accorded an intermediate measure of First Amendment protection. Florida Bar v. Went For It, Inc., --- U.S. ----, ----, 115 S.Ct. 2371, 2375, 132 L.Ed.2d 541 (1995). Government restrictions on commercial speech, such as New Mexico's ban on personal injury direct mail advertising, are analyzed under the framework set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). As a threshold inquiry under Central Hudson, we must determine whether the particular advertisement is protected speech--i.e., whether it concerns lawful activity and is not misleading. Id. at 563, 566, 100 S.Ct. at 2350, 2350-51; Went For It, --- U.S. at ----, 115 S.Ct. at 2376. If not, the speech may be freely regulated. Protected commercial speech may also be regulated, but only if the government can show that (1) it has a substantial state interest in regulating the speech, (2) the regulation directly and materially advances that interest, and (3) the regulation is no more extensive than necessary to serve the interest. Central Hudson, 447 U.S. at 564-65, 100 S.Ct. at 2350; Went For It, --- U.S. at ----, 115 S.Ct. at 2376.

The operative facts in this case are not in dispute, although the parties contest how those facts should be characterized. At issue here is whether, under the Central Hudson framework, New Mexico's ban is a constitutionally permissible restriction on the commercial speech of lawyer advertising.

There is no question that advertising legal services concerns lawful activity. The Board argues, however, that the letters Mr. Revo sent to accident victims are misleading. Our review of the record does not support this overbroad contention. As early as 1988, the Board's Chief Disciplinary Counsel admitted that Mr. Revo's letters were "carefully worded to avoid creating false impressions." Aplt.App. at 271. Also, the Board admitted that it had not received a single complaint from any recipient of any of Mr. Revo's letters stating that the letters were false or misleading, were unfairly coercive, or caused them to enter an attorney-client relationship unwillingly or without adequate information. Aplt.App. at 375-76.

The Board contends that direct mail solicitation letters such as those sent by Mr. Revo are inherently misleading, and therefore may be freely restricted. The Board suggests that direct mail letters to personal injury victims inevitably convey a false message that soliciting lawyers are more experienced, tougher, more skillful, and better qualified than non-soliciting lawyers, notwithstanding the fact that the letters themselves make no reference to those attributes. According to the Board, therefore, the mere sending of any letter to poor and uneducated accident victims (the group the Board claims is specifically targeted by soliciting attorneys) carries with it the notion that the lawyer is superbly able to represent their interests--a notion that is inherently misleading because only unqualified shysters send these letters and because their targeted clients are not sophisticated enough to know that they are being preyed upon. The Board ignores the fact that the letters are sent to all accident victims, without regard to their financial well-being. The fact that different segments of the population may choose different means of selecting lawyers is not proof that those persons choosing lawyers from direct mail solicitation are somehow less capable of making intelligent decisions.

In support of its arguments, the Board points to four soliciting attorneys who it claims are either unqualified to represent personal injury clients or who do not act in the best interests of such clients. According to the Board, these attorneys represent, for all practical purposes, the total population of soliciting personal injury attorneys in New Mexico. Assuming the Board is correct in its characterizations, the fact that these four attorneys may mislead their potential clients is not proof that the letters themselves are inherently misleading. For a particular mode of communication to be inherently misleading, it must be incapable of being presented in a way that is not deceptive. In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982). The Board offers no proof that some other qualified lawyer who could superbly represent personal injury victims would nevertheless be misleading potential...