608 F.3d 1241 (11th Cir. 2010), 09-11910, Harrell v. The Florida Bar

Docket Nº:09-11910.
Citation:608 F.3d 1241
Opinion Judge:MARCUS, Circuit Judge:
Party Name:William H. HARRELL, Jr., Harrell & Harrell, P.A., et al., Plaintiffs-Appellants, v. THE FLORIDA BAR, et al., Defendants-Appellees.
Attorney:Gregory A. Beck, Brian Wolfman, Public Citizen Lit. Group, Washington, DC, David Michael Frank, Law Office of David M. Frank, P.A., Tallahassee, FL, for Plaintiffs-Appellants. Barry Richard, Mary Hope Keating, Greenberg Traurig, P.A., Tallahassee, FL, Elliott B. Kula, Greenberg Traurig, P.A., Mia...
Judge Panel:Before EDMONDSON and MARCUS, Circuit Judges, and BARBOUR,[*] District Judge.
Case Date:June 17, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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608 F.3d 1241 (11th Cir. 2010)

William H. HARRELL, Jr., Harrell & Harrell, P.A., et al., Plaintiffs-Appellants,

v.

THE FLORIDA BAR, et al., Defendants-Appellees.

No. 09-11910.

United States Court of Appeals, Eleventh Circuit

June 17, 2010

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         Gregory A. Beck, Brian Wolfman, Public Citizen Lit. Group, Washington, DC,

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David Michael Frank, Law Office of David M. Frank, P.A., Tallahassee, FL, for Plaintiffs-Appellants.

          Barry Richard, Mary Hope Keating, Greenberg Traurig, P.A., Tallahassee, FL, Elliott B. Kula, Greenberg Traurig, P.A., Miami, FL, for Defendants-Appellees.

         Appeal from the United States District Court for the Middle District of Florida.

          Before EDMONDSON and MARCUS, Circuit Judges, and BARBOUR,[*] District Judge.

          MARCUS, Circuit Judge:

         Plaintiff William H. Harrell, Jr., joined by his law firm Harrell & Harrell and the nonprofit organization Public Citizen, appeals from the district court's grant of summary judgment in favor of defendant The Florida Bar (" the Bar" ). Harrell, who advertises the services of his firm extensively, claims in a broad facial challenge that nine advertising-related provisions of the Rules Regulating the Florida Bar (" the rules" ) are so vague as to violate his due process rights. He also claims in an as-applied challenge that the same rules violate his First Amendment rights by prohibiting him from advertising in a variety of specific ways, including through the use of a slogan-" Don't settle for less than you deserve" -that he has included in his advertisements for years. Finally, he challenges as an unconstitutional burden on his speech a requirement that lawyers submit proposed radio and television advertisements to the Florida Bar for review at least twenty days before their dissemination.

         The bulk of this case, as it comes to us on appeal, concerns the " [t]hree strands of justiciability doctrine" -standing, ripeness, and mootness-that go to the heart of the Article III case or controversy requirement. Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir.1998). The district court, in an order of final summary judgment, concluded that all of Harrell's claims except for his challenge to the twenty-day pre-filing rule were nonjusticiable on one of those three grounds. On the merits of the sole claim it considered justiciable, the district court held that the Bar's pre-filing rule did not violate the First Amendment.

         After thorough review, we conclude that Harrell's facial vagueness challenge is justiciable with respect to five of the nine challenged rules. As to all but one of the nine rules, however, we agree with the district court that Harrell's as-applied First Amendment challenge is not ripe, and therefore is nonjusticiable. Turning to the question of Harrell's slogan, we agree with Harrell that his challenge to the Bar's rejection of " Don't settle for less than you deserve" is not moot. Finally, we conclude on the merits that the Florida Bar's twenty-day pre-filing rule is constitutional. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

         I.

          William Harrell is an attorney in Jacksonville, Florida, and the managing partner of the law firm of Harrell & Harrell, P.A. The firm, which specializes in personal injury law, depends heavily on advertising to generate business, and advertises through a variety of media such as television, radio, billboards, and a website. Like all Florida lawyers, Harrell is subject to the Bar's extensive attorney advertising rules. Those rules, which are found in the Rules Regulating the Florida Bar, apply

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expansively to a wide range of common advertising content, such as statements of quality, comparisons, background sounds, and other stock advertising techniques. To promote compliance with the rules, Florida lawyers like Harrell must file proposed advertisements with the Florida Bar for a determination of whether the advertisement is permissible. Disseminating a non-compliant advertisement provides grounds for discipline, including public reprimand, suspension, and even disbarment. Rules 3-4.2 & 3-5.1.

         The present version of the rules reflects a long and undeniable trend towards increasingly restrictive measures to control attorney advertising. The goal of these measures is to protect the public from misleading advertising and to preserve the reputation of the legal profession in the face of what some perceive as increasingly unscrupulous advertisements. Thus, for example, in 1990, the Florida Supreme Court adopted a range of new rules and explanatory comments that prohibited forms of advertising content such as slogans, jingles, references to past " results obtained," testimonials, statements that " describ[e] or characteriz[e] the quality of the lawyer's services," statements that would be considered true for most lawyers practicing in Florida, statements of comparison like " one of the best" or " one of the most experienced," depictions that " create[ ] suspense" or contain " exaggerations" or " call[s] for legal services," and " audio or video portrayal[s] of an event or situation." See In re Petition to Amend the Rules Regulating The Fla. Bar, 571 So.2d 451, 460-64 (Fla.1990) (" In re 1990 Amendments " ). In contrast to the previous set of rules, which had excluded from their purview " [q]uestions of effectiveness and taste," In re Rules Regulating The Fla. Bar, 494 So.2d 977, 1071-72 (Fla.1986), the new amendments required that lawyers " provide only useful, factual information presented in a nonsensational manner." In re 1990 Amendments, 571 So.2d at 464; see also Rule 4-7.1, cmt.

         In 1997, again concerned about a loss of public confidence in lawyers and the legal system, the Bar petitioned the Florida Supreme Court for further restrictions. While rejecting a wholesale ban on all television and radio advertising in the state, as advocated by a task force of the Bar, the court amended the rules to place additional prohibitions on " visual or verbal descriptions" or illustrations that are " manipulative" or likely to " confuse" the viewer. In re Amendments to Rules Regulating The Fla. Bar, 762 So.2d 392, 395-96, 409-10 (Fla.1999).

         In 2004, the Bar proposed still more amendments to the rules, notably including a prohibition on advertisements that " promise[ ] results," Rule 4-7.2(c)(1)(G), and a rule that appeared to be a pre-screening requirement, pursuant to which a lawyer who sought to air a television or radio advertisement would have to submit the ad for the Bar's review twenty days prior to the date of airing. See Rule 4-7.7(a)(1)(C). The Florida Supreme Court adopted the Bar's recommendations. In re Amendments to The Rules Regulating The Florida Bar, 971 So.2d 763, 764-65 (Fla.2007).

          To help attorneys comply with these elaborate rules governing advertising, the Bar provides a three-tiered administrative review structure. An attorney ordinarily must submit a proposed advertisement to the Bar's Ethics and Advertising Department, where a Department staff member issues an advisory opinion. Any adverse opinion of the Department may be appealed to the Standing Committee on Advertising, see Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation (" Procedures" ) § 4(a), and any adverse decision of the Standing Committee in turn may be appealed

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to the Board of Governors (" the Board" ), which is the chief governing body of The Florida Bar, id. § 4(h). The Board may also review decisions of the Standing Committee sua sponte under limited circumstances. An attorney cannot be disciplined for filing a non-compliant advertisement with the Bar, Tarbert Aff. ¶ 13, and indeed, a favorable determination by the Ethics and Advertising Department or any superior body generally acts as a safe harbor against discipline on the basis of the advertisement submitted, Rule 4-7.7(a)(1)(F); Rule 4-7.7(a)(2)(F).

         Harrell is intimately acquainted with the administrative review process. According to his affidavit, the Bar has over the years repeatedly rejected his firm's advertising submissions for containing elements that he considers harmless, such as an illustration of stick people, a statue of Lady Justice, the scenery outside a window behind him, and a picture of one of his Bar-approved telephone-book advertisements. Harrell Aff. ¶ 5, Sept. 15, 2008. 1 Harrell submits that the Bar's reasons for rejecting his advertisements are often opaque or hyper-technical. Thus, for example, he notes that in rejecting his proposed slogan " You Need an Attorney Fighting for Your Rights," the Bar claimed that the advertisement was misleading because, " [w]hile an attorney can certainly be most helpful to injured individuals, they do not have to have an attorney to bring or settle a civil negligence claim." Id.

         Harrell has on four occasions appealed the Ethics and Advertising Department's rejection of his advertisements to the Standing Committee, arguing that the ads were harmless to consumers, and the Bar's restrictions themselves unconstitutional. Harrell Aff. ¶ ¶ 6, 14. Each time, the committee affirmed the decision below without addressing his arguments. Harrell Aff. ¶ ¶ 6, 15. After several appeals to the Board of Governors lasting between seven and nine months each, two of the rejections were eventually reversed. The Board, however, affirmed without explanation the rejection of an advertisement depicting Harrell standing in front of his office building. Harrell...

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