Allen, Allen, Allen & Allen v. Williams

• Decision Date: 19 March 2003
• Docket Number: No. CIV.A. 3:02CV632.,CIV.A. 3:02CV632.
• Citation: 254 F.Supp.2d 614
• Court: U.S. District Court — Eastern District of Virginia
• Parties: ALLEN, ALLEN, ALLEN & ALLEN, et al., Plaintiffs, v. Barbara WILLIAMS, in her official capacity as Bar Counsel of the Virginia State Bar, Defendant.

254 F.Supp.2d 614

ALLEN, ALLEN, ALLEN & ALLEN, et al., Plaintiffs, v. Barbara WILLIAMS, in her official capacity as Bar Counsel of the Virginia State Bar, Defendant.

No. CIV.A. 3:02CV632.

United States District Court, E.D. Virginia, Richmond Division.

March 19, 2003.

Thomas Winfield Williamson, Jr., Williamson & Lavecchia LC, Rodney Alan Smolla, T.C. Williams School of Law, University of Richmond, Richmond, VA, for Allen, Allen, Allen & Allen, W. Coleman Allen, Jr., plaintiffs.

Kevin Osborne Barnard, Office of the Attorney General, Richmond, VA, for Virginia State Bar, Barbara Williams, in her official capacity as Bar Counsel of the Virginia State Bar, defendants.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, Senior District Judge.

This matter is before the Court on the defendant's motion to dismiss and the plaintiffs' motion for a preliminary injunction.

The plaintiffs, Allen, Allen, Allen & Allen, and W. Coleman Allen, Jr. (hereinafter collectively referred to as "the Aliens," "the Allen Firm," or "plaintiffs"), brought this suit against the defendant, Barbara Williams, in her capacity as Bar Counsel of the Virginia State Bar (for simplicity, the Court refers to the individual defendant and the entity the Virginia State Bar as "the Bar" or "defendant"), pursuant to 42 U.S.C. § 1983. The Aliens challenge the constitutionality of Rule 7.1(a)(3) of the Virginia Rules of Professional Conduct as applied by the Bar's Standing Committee on Lawyer Advertising in its Legal Advertising Opinion A-0114. The Aliens seek a declaratory judgment that their advertisements are expression protected by the First Amendment and that any attempt by the Bar to enforce Rule 7.1(a)(3) against the plaintiffs for the advertisements at issue would violate the First Amendment. They also seek an injunction ordering the Bar to withdraw the offending advisory opinion and permanently enjoining the Bar from enforcing Rule 7.1(a)(3) against the plaintiffs for these advertisements.

In their motion for a preliminary injunction, the Aliens ask this Court to enjoin the Bar from enforcing Rule 7.1 against the Allen Firm for its past and future advertising of the material set forth in paragraph 11 of its complaint pending the conclusion of this litigation. Paragraph 11 recites the text of three advertisements currently in use by the Allen Firm. The defendant moves to dismiss this lawsuit pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that this Court lacks subject matter jurisdiction over the controversy and that the plaintiffs' complaint and supplemental complaint¹ fail to state a claim upon which relief may be granted.

Oral argument on the motion to dismiss and motion for a preliminary injunction was heard on February 20, 2003. After supplemental briefing, these matters are ripe for decision. For the reasons that follow, the defendant's motion to dismiss is denied and the plaintiffs' motion for a preliminary injunction is granted.

I. FACTS

A. The Bar's structure for reviewing advertisements and the disciplinary process

The Virginia State Bar is an administrative agency of the Supreme Court of Virginia and is responsible for regulating the legal profession in the Commonwealth, including monitoring legal advertising and enforcing the Virginia Rules of Professional Conduct promulgated by the Supreme Court of Virginia. Va.Code § 54.1-3910. The Virginia Rules of Professional Conduct is the code of ethics that governs lawyers in Virginia, and Rule 7.1 pertains to advertising.² The portion of that Rule relevant to this litigation states:

(a) A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim. For example, a communication or advertisement violates this Rule if it:

(3) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

S.Ct. of Va. R., Part Six, § II, Rule 7.1(a)(3).

The powers of the Bar are exercised by its Council, which has general administrative responsibility for the disciplinary system of the Bar. S.Ct. of Va. R., Part Six, § IV, ¶ 5,13.B.2.a. Responsibility for monitoring the advertising of lawyers in Virginia has been delegated by the Council to the Standing Committee on Lawyer Advertising and Solicitation ("SCOLA"). Id. at ¶ 10. In carrying out that responsibility, SCOLA performs three functions that are particularly relevant to this litigation. First, SCOLA is available to pre-screen advertisements to ensure compliance with the Rules of Professional Conduct. (SCLA Mission Statement, http://www.vsb.org I committees!standing I advertising/index, html, Pls.' Br. Opp. Mot. Dismiss, Ex. A.) Any lawyer may voluntarily submit an advertisement to SCOLA for review prior to it being published or broadcast. Id. Second, SCOLA independently monitors lawyer advertising for compliance with the Rules. This function of SCOLA is summarized in the Committee's mission statement as follows:

The committee meets regularly to review yellow pages, radio, television and Internet advertising and issues non-compliance letters to those lawyers whose advertising appears to violate the rules. Typically the lawyers receiving such letters voluntarily comply with the committee's suggestion to rectify the problems identified with their advertising. In those few instances where a lawyer disagrees with the committee's interpretation of the rules, the matters are referred to the disciplinary department of the bar.

(SCOLA Mission Statement, Pls.' Br. Opp. Mot. Dismiss, Ex. A.) SCOLA requires lawyers and firms to retain copies of their advertisements to be made available to SCOLA for this purpose upon request. S.Ct. of Va. R., Part Six, § II, Rule 7.1(b).³

The third function of SCOLA important to this litigation is the issuance of written legal advertising opinions. Any member of the Bar may request an advisory opinion on a particular issue by submitting a written request to SCOLA. S.Ct. of Va. R., Part Six, § IV, ¶ 10(b)(i). The request must be in the form of a hypothetical, but it may include the specific advertisement in question. Id. at ¶ 10(b)(ii). Any such request is reviewed by the Bar's Ethics Counsel who determines whether to refer the request to the Committee. Once the Committee reviews the request and determines that it presents an unresolved issue, the Committee shall issue an advisory opinion. Id. at ¶ 10(c)(i). "The Committee may in its discretion decline to render an opinion regarding any matter which is currently the subject of any disciplinary proceeding or litigation or which presents an issue beyond its purview." Id. at ¶ 10.(c)(ii). The Committee may publish the advisory opinion informally or transmit it to the Bar's Council for approval, modification, or disapproval. Id. at ¶ 10(c)(iii). Even if the Committee chooses not to submit the opinion to the Council for consideration, any party who filed the request for the opinion, if dissatisfied with the result, may appeal the Committee's opinion to the Council. Id. at ¶ 10(c)(v). No advisory opinion has any binding legal effect until it is approved by the Council and ultimately by the Supreme Court of Virginia. Id. at ¶ 10(c)(vi), (f)(iv), (g)(iv). When advisory opinions are submitted to the Council, the Bar must issue a press release and allow for public comment in accordance with the Rules of the Supreme Court of Virginia. Id. at ¶ 10(d), (e). The Attorney General of Virginia shall also file written comments analyzing whether adoption of the opinion would result in a restraint on competition. Id at ¶ 10(e)(ii). Upon review of an opinion, the Council may approve, modify, or disapprove it. Id. at ¶ 10(f). If an opinion is approved or modified, it may be published as an advisory opinion or transmitted to the Supreme Court of Virginia for further review. Id. A similar process of publication and allowance for public comment is required before the Supreme Court of Virginia's review. Id. at ¶ 10(g). Like the Council, the Supreme Court of Virginia may approve, modify, or disapprove an opinion. Id, at ¶ 10(g)(iv). Once the Supreme Court of Virginia reviews an opinion and either approves or modifies it, the opinion becomes a binding decision of the Supreme Court of Virginia. Id.

Whether an opinion remains advisory or becomes a binding opinion of the Supreme Court of Virginia, it may result in a lawyer being subjected to disciplinary action. Under the administrative oversight of the Council, all disciplinary proceedings are investigated and prosecuted by Bar Counsel. Id. at ¶ 13.B.2.a, 13.B.7.a. In performing her prosecutorial functions, Bar Counsel is to "act independently and exercise prosecutorial autonomy and discretion." Id. at ¶ 13.B.7.a(1). Bar Counsel is bound by the terms of an advertising opinion only if it has been approved by the Supreme Court of Virginia, id. at ¶ 10(g)(iv), but completing all stages of review of an advisory opinion is not a prerequisite for a disciplinary complaint. Id. at ¶ 13. As revealed in its mission statement, SCLA's review of advertisements, whether as part of its independent monitoring function or in response to a request for an advisory opinion, may result in a referral for disciplinary proceedings if SCOLA determines that an advertisement fails to comply with the Rules and the lawyer or firm fails to modify the advertisement in accordance with SCOLA's request. (Pls.' Br. Opp. Mot. Dismiss, Ex. A.) In addition to complaints that are referred from SCLA, complaints may be filed by any member of the public or by other attorneys, and they may be referred from other Bar committees. S.Ct. of Va. R., Part Six, § IV, ¶ 13. Bar Counsel reviews all complaints of misconduct filed with the Bar, and she determines the level of investigation they warrant, if any, and...