856 F.2d 529 (3rd Cir. 1988), 87-5524, Felmeister v. Office of Attorney Ethics, a Div. of the New Jersey Administrative Office of the Courts

Docket Nº:87-5524.
Citation:856 F.2d 529
Party Name:Robert A. FELMEISTER, Hanan M. Isaacs and Felmeister & Isaacs, a partnership, Appellants, v. OFFICE OF ATTORNEY ETHICS, A DIVISION OF THE NEW JERSEY ADMINISTRATIVE OFFICE OF THE COURTS; Robert N. Wilentz; Robert L. Clifford; Alan B. Handler; Daniel J. O'Hern; Stewart G. Pollock; Marie A. Garibaldi; Gary S. Stein, in their capacity as Justices of th
Case Date:August 31, 1988
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 529

856 F.2d 529 (3rd Cir. 1988)

Robert A. FELMEISTER, Hanan M. Isaacs and Felmeister &

Isaacs, a partnership, Appellants,

v.

OFFICE OF ATTORNEY ETHICS, A DIVISION OF THE NEW JERSEY

ADMINISTRATIVE OFFICE OF THE COURTS; Robert N. Wilentz;

Robert L. Clifford; Alan B. Handler; Daniel J. O'Hern;

Stewart G. Pollock; Marie A. Garibaldi; Gary S. Stein, in

their capacity as Justices of the Supreme Court of New

Jersey; David E. Johnson, Jr., in his capacity as Director

of the Office of Attorney Ethics; Robert D. Lipscher, in

his capacity as Director of the Administrative Office of the Courts.

No. 87-5524.

United States Court of Appeals, Third Circuit

August 31, 1988

Argued Jan. 12, 1988.

Page 530

David B. Rubin (argued), Rubin, Rubin & Malgran, Piscataway, N.J., for appellants.

W. Cary Edwards, Atty. Gen. of N.J., Andrea M. Silkowitz, Asst. Atty. Gen., Susan L. Reisner, Deputy Atty. Gen. (argued), Newark, N.J., for appellees.

Before HIGGINBOTHAM and BECKER, Circuit Judges, and SHAPIRO, District Judge. [*]

OPINION

BECKER, Circuit Judge.

This is an appeal from the district court's dismissal on grounds of ripeness and Burford abstention of plaintiffs' complaint seeking a declaration that the New Jersey Supreme Court's revised attorney advertising regulations violate the first and fourteenth amendments to the constitution. The challenged disciplinary rule provides, inter alia, that "[a]ll advertisements shall be predominantly informational"; that "[n]o drawings, animations, dramatizations, music, or lyrics shall be used in connection with televised advertising"; and that "[n]o advertisement shall rely in any way on techniques to obtain attention that depend upon absurdity and that demonstrate a clear and intentional lack of relevance to the selection of counsel." R.P.C. 7.2(a).

Plaintiffs are attorneys Robert A. Felmeister, Hanan M. Isaacs and their law partnership, Felmeister & Isaacs. They have alleged in their (amended) complaint that the rule: (1) violates the protections afforded commercial speech under the first and fourteenth amendments; (2) imposes an unconstitutionally vague standard to determine whether advertisements are sanctioned under the rule in violation of the Due Process Clause of the fourteenth

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amendment; and (3) creates an unlawful prior restraint by requiring prepublication review of advertisements by the Supreme Court of New Jersey Committee on Attorney Advertising.

We conclude that the district court abused its discretion in abstaining under Burford v. Sun Oil Co., 319 U.S. 315, 318-26, 63 S.Ct. 1098, 1099-1103, 87 L.Ed. 1424 (1943). We do not believe that the regulation of attorney advertising concerns an area that is particularly complex and technical, nor do we believe that it implicates peculiarly local concerns. Hence, we cannot agree that the exercise of federal jurisdiction here would constitute inappropriate interference in the shaping of important state policies.

We nevertheless decline to reach the merits because we agree with the district court's decision to dismiss the complaint for lack of ripeness. On the basis of the mere allegations in the complaint and accompanying affidavit, it is impossible to determine whether plaintiffs' proposed advertisements are likely to run afoul of the revised rule or whether publication of the ads is likely to subject plaintiffs to disciplinary action. Moreover, plaintiffs need not risk disciplinary action in order to learn whether their advertisements comply with the rule. New Jersey has provided an expeditious means of testing the reach of the rule through an advisory opinion process. Plaintiffs, however, have not submitted their advertisements to the advisory committee and hence have not availed themselves of a relatively simple way of determining whether their ads run afoul of the rule. Recent Supreme Court jurisprudence suggests that mandatory prescreening of commercial advertisements may be constitutionally sound, see infra page 537; we simply rely on the availability of the advisory process in declining to grant premature judicial review. Without a demonstration that plaintiffs are likely to risk disciplinary action, they have not presented the court with a justiciable case or controversy.

I. PROCEDURAL HISTORY

On January 16, 1984, the Supreme Court of New Jersey promulgated DR2-102(A) (recodified as RPC 7.2(a)), which provided that:

Subject to the requirements of RPC 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through mailed written communications. All advertisements shall be presented in a dignified manner without the use of drawings, animations, dramatizations, music or lyrics.

In their original complaint filed February 9, 1984, pursuant to 42 U.S.C. Sec. 1983, plaintiffs sought declaratory and injunctive relief against the Office of Attorney Ethics, a division of the New Jersey Administrative Office of the Courts, challenging the "dignified manner" standard and the limitation on the use of drawings, animations, etc., as violative of the first and fourteenth amendments. The defendant responded by moving for dismissal on grounds of abstention and failure to name a proper party defendant.

In a bench opinion delivered February 27, 1984, the district court abstained under Burford v. Sun Oil Co., 319 U.S. 315, 318-26, 63 S.Ct. 1098, 1099-1103, 87 L.Ed. 1424 (1943), on the ground that attorney advertising was an "emerging, uncertain area" in which "[t]here [wa]s indeed a substantial state interest in regulation by a state supreme court." App. at 17a. Additionally, the court noted that Felmeister and Isaacs could raise the constitutional issues presented in their federal suit before the New Jersey Supreme Court by way of a direct petition invoking the Supreme Court's original jurisdiction to challenge the rule. Relying on American Trial Lawyers v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973), the district court retained jurisdiction pending the state court proceedings.

Plaintiffs thereupon directly petitioned the Supreme Court of New Jersey, which remanded the matter to a state trial court

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to develop a factual record. 1 The state trial court conducted an adversary proceeding and recommended that the "dignity" standard be retained, but that the prohibition against the use of drawings, animations, dramatizations, music or lyrics be eliminated from the rule.

The parties briefed and argued the merits of the trial court's recommendations to the New Jersey Supreme Court. For public policy and federal constitutional reasons, the Supreme Court significantly revised the attorney advertising rule. Petition of Felmeister & Isaacs, 104 N.J. 515, 518 A.2d 188, 189 (1986). The new rule, New Jersey Rule of Professional Conduct 7.2, provides in pertinent part:

Subject to the requirements of RPC 7.1. a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through mailed written communication. All advertisements shall be predominantly informational. No drawings, animations, dramatizations, music, or lyrics shall be used in connection with televised advertising. No advertisement shall rely in any way on techniques to obtain attention that depend upon absurdity and that demonstrate a clear and intentional lack of relevance to the selection of counsel; included in this category are all advertisements that contain any extreme portrayal of counsel exhibiting characteristics clearly unrelated to legal competence.

Id. 2

The Supreme Court also created a new administrative agency, the Supreme Court of New Jersey Committee on Attorney Advertising (the "Committee"), to implement the rule. Id. at 205-07. The Committee's delegated authority included the power, inter alia, (1) to promulgate rules and regulations and monitor compliance therewith; (2) to establish guidelines for application of the new rule's "predominantly informational" and "extreme portrayal" standards; (3) to render advisory opinions in advance of publication; (4) to review at its discretion, prior to publication, any attorney advertisements prepared with the assistance of advertising professionals; and (5) to report annually (beginning January 1, 1988), after public hearings, "on the desirability of retaining, revising or repealing the new rule, or adopting any other proposed rule." Id. at 205-07.

On January 5, 1987, following the Supreme Court's decision, plaintiffs filed an amended complaint in the district court. In this complaint they joined as defendants the individual justices of the Supreme Court and the directors of the Office of Attorney Ethics and the Administrative Office of the Courts. App. at 30a-31a. Plaintiffs challenged the revised rule, claiming that it violated their first amendment rights. App. at 31a. They attacked the new rule's "predominantly informational" standard as unconstitutionally vague and the Committee's prepublication review function as an unlawful prior restraint. App. at 31a-32a. The defendants countered with a motion to dismiss on the grounds, inter alia, of abstention and lack of ripeness for adjudication.

In the district court's view it was unnecessary to reach the merits of plaintiffs' application for a preliminary injunction because the amended complaint was dismissible on the ground of Burford abstention. Relying on the state Supreme Court's characterization of its decision as "tentative and subject to change based on future experience,"

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518 A.2d at 189, and the Supreme Court's creation of the Committee to administer the rule, the district court...

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