Falanga v. State Bar of Ga., s. 96-8972

Citation150 F.3d 1333
Decision Date19 August 1998
Docket Number97-8062,96-9491,Nos. 96-8972,s. 96-8972
Parties11 Fla. L. Weekly Fed. C 1737 Robert FALANGA, Individually and Ronald F. Chalker, Individually, Plaintiffs-Appellees, Cross-Appellants, v. STATE BAR OF GEORGIA, Defendant-Appellant, Cross-Appellee. Robert FALANGA, Individually; Ronald F. Chalker, Individually, et al., Plaintiffs-Appellants, v. STATE BAR OF GEORGIA, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Robert L. Goldstucker, Mary A. Palma, Nall, Miller, Owens, Hocutt & Howard, Atlanta, GA, for State Bar of Georgia.

Andrew R. Kirschner, Bedford, Kirschner & Venker, Atlanta, GA, Ralph Goldberg, Decatur, GA, for Falanga and Chalker.

Appeals from the United States District Court for the Northern District of Georgia.

Before HATCHETT, Chief Judge, and EDMONDSON and COX, Circuit Judges.

HATCHETT, Chief Judge:

The principal issue in this case is whether Georgia's prohibiting lawyers and their agents from soliciting professional employment from potential clients face-to-face and without invitation survives First Amendment commercial speech scrutiny as applied to appellees/cross-appellants. We conclude that it does, affirming in part and reversing in part the judgment of the district court.

I. BACKGROUND

Appellees/cross-appellants Robert Falanga and Ronald Chalker, who are licensed to practice law in and members of the State Bar of Georgia, primarily represent plaintiffs pursuing personal injury and wrongful death claims arising out of automobile accidents. Falanga and Chalker serve as the only lawyers in their five-office law firm headquartered in Atlanta. Most of their clients are poor and uneducated. Falanga and Chalker retain new clients through in-person, telephone and direct mail solicitation. They obtain the names of potential clients in two principal ways. First, the law firm's "public relations" agent asks doctors and chiropractors to recommend Falanga and Chalker to injured patients and grieving family members in need of legal services. In return, Falanga and Chalker treat the doctors and chiropractors to lunch and provide free legal advice. Additionally, law firm employees sift through police reports at the Department of Safety. With this information, Falanga and Chalker mail approximately 300 letters and brochures per week to accident victims.

In June 1992, upon receiving a sworn grievance from a chiropractor, the State Bar of Georgia began investigating Falanga and Chalker for breaches of several professional conduct standards. Ultimately, the State Bar "credibl[y] threat[ened] [to] prosecut[e]" Falanga and Chalker for violating Standards 5(a)(2), 5(a)(3), 6(b), 7(a), 8, 12, 13, 16, 17(a) and 18 of Rule 4-102. Wilson v State Bar of Ga., 132 F.3d 1422, 1428 (11th Cir.1998). 1 To stop disciplinary proceedings, Falanga and Chalker filed a complaint in the United States District Court for the Northern District of Georgia. Pursuant to 42 U.S.C. § 1983, Falanga and Chalker alleged, among other things, that enforcement of these standards would violate their commercial speech rights under the First Amendment, as incorporated through the Fourteenth Amendment. 2 After conducting a non-jury trial, the district court sustained as constitutional all but the restrictions on lawyers' in-person, uninvited solicitation, Standards 12, 16 (only as it relates to 12) and 17(a). 3 Declaring these three standards unconstitutional, the court enjoined the State Bar from enforcing them against any lawyer.

II. DISCUSSION

In part A, we discuss whether Standards 12, 13, 16 and 17(a)--prophylactic bans on lawyers' and their agents' in-person, uninvited solicitation--are constitutional as applied to Falanga and Chalker. 4 In part B, we address the constitutionality of the standards on lawyers' advertising that the district court upheld--Standards 5(a)(2), 5(a)(3), 6(b), 7(a), 8 and 18. Where, as here, the parties to a First Amendment case dispute only the district court's findings of constitutional (as opposed to historical) fact, our standard of review is de novo. See Don's Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053 n. 9 (11th Cir.1987) ("In cases involving first amendment claims, an appellate court must make an independent examination of the whole record.... [A]n appellate court is not bound by the 'clearly erroneous' standard of review in determining whether a commercial speech regulation directly advances the government's goals or is more extensive than necessary.") (citations omitted), cert. denied, 485 U.S. 981, 108 S.Ct. 1280, 99 L.Ed.2d 491 (1988).

A.

All 50 states and the District of Columbia regulate lawyers' and their agents' in-person solicitation of professional employment. 5 Georgia is no exception. 6 It prohibits lawyers from engaging in in-person, uninvited solicitation:

A lawyer shall not solicit professional employment as a private practitioner for himself, his partner or associate, through direct personal contact with a non-lawyer who has not sought his advice regarding employment of a lawyer.

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov't of the State Bar of Ga., Rule 4-102, Standard 12 (Michie

1998). 7 Similarly, lawyers may not solicit through an agent or pay for unregulated referrals:

A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client;

except that he may pay for public communications permitted by Standard 5 and the usual and reasonable fees or dues charged by a bona fide lawyer referral system....

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov't of the State Bar of Ga., Rule 4-102, Standard 13 (Michie 1998). 8 Finally, Georgia prohibits lawyers from retaining "strangers" to whom they or their agents have rendered unsolicited legal advice:

A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his services does so as a result of conduct by any person or organization prohibited under Standards 12[ ][or] 13....

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov't of the State Bar of Ga., Rule 4-102, Standard 16 (Michie 1998). 9 And,

[a] lawyer who has given in-person unsolicited advice to a layperson that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except:

(a) A lawyer may accept employment from a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client[.]

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov't of the State Bar of Ga., Rule 4-102, Standard 17(a) (Michie 1998). 10

Professional responsibility rules on lawyer advertising usually concern purely commercial speech, as do Georgia's standards on in-person solicitation. See Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 472, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988) ("Lawyer advertising is in the category of constitutionally protected commercial speech."). As such, in determining their constitutionality, courts apply the "now familiar" framework set forth in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), and its progeny. Shapero, 486 U.S. at 472, 108 S.Ct. 1916. To justify a "regulation of lawyer solicitations for pecuniary gain[,]" the state must show that: (1) "it has a substantial interest in proscribing speech"; (2) "the regulation advances the asserted state interest in a direct and material way"; and (3) "the extent of the restriction is in reasonable proportion to the interest served." Shapero, 486 U.S. at 472, 108 S.Ct. 1916; Miller v. Stuart, 117 F.3d 1376, 1382 (11th Cir.1997) (collecting Supreme Court precedents), cert. denied, --- U.S. ----, 118 S.Ct. 852, 139 L.Ed.2d 753 (1998). 11

At the close of the State Bar's case-in-chief, the district court granted Falanga's and Chalker's motions for directed verdict as to Standards 12, 16 (only as it relates to 12) and 17(a). 12 Applying the Central Hudson test, the court held that: (1) the State Bar has a substantial interest in (a) "protecting the public from aspects of solicitation that involve fraud, undue influence, intimidation and overreaching[,]" (b) "protecting the tranquility and privacy of personal injury victims and their loved ones against intrusive, unsolicited in-person contact from lawyers[,]" and (c) improving the public's confidence in the legal profession; but (2) the proscriptions on lawyers' in-person, uninvited solicitation do not directly and materially advance these interests because "[a]lthough the [State Bar's] anecdotal evidence demonstrates certain harms that may be associated with in-person solicitation, ... [it] has failed to demonstrate that these harms are present in all circumstances"; and (3) the proscriptions are "substantially broader than necessary to prevent the harms asserted[.]"

In contrast to its rulings on Standards 12, 16 (only as it relates to 12) and 17(a), the district court found Standards 13 and 16 (only as it relates to 13) to be constitutional. The court concluded that: (1) the State Bar has a substantial interest in (a) "promoting the independent judgment of lawyers[,]" (b) "prohibiting the practice of law by a layman[,]" and (c) "protecting consumers from overreaching by those to be compensated"; (2) the proscriptions "bear[ ] a direct relationship" to advancing these interests; and (3) "prohibiting lawyers from engaging in the practice of paying for referrals is a reasonable method of preventing the harm caused by the overreaching of certain runners[.]"

The State Bar challenges the district court's judgment as to Standards 12, 16 (only as it relates to 12) and 17(a), while Falanga and Chalker cross-appeal its judgment as to Standards 13 and 16 (only as it...

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