CONSUMERS U. OF UNITED STATES v. American Bar Ass'n

• Citation: 470 F. Supp. 1055
• Decision Date: 08 May 1979
• Docket Number: Civ. A. No. 75-0105-R.
• Parties: CONSUMERS UNION OF UNITED STATES, INC., et al., Plaintiffs, v. AMERICAN BAR ASSOCIATION et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

470 F. Supp. 1055

CONSUMERS UNION OF UNITED STATES, INC., et al., Plaintiffs, v. AMERICAN BAR ASSOCIATION et al., Defendants.

Civ. A. No. 75-0105-R.

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

May 8, 1979.

COPYRIGHT MATERIAL OMITTED

James W. Benton, Jr., Hill, Tucker & Marsh, Richmond, Va., Peter H. Schuck and Marsha N. Cohen, Washington, D. C., for plaintiffs.

Stuart H. Dunn, Deputy Atty. Gen., and John F. Rick, Richmond, Va., for all defendants except ABA.

H. Merril Pasco, Richmond, Va., Robt. D. McLean, H. Blair White, Sidley & Austin, Chicago, Ill., for defendant ABA.

Before BRYAN, Circuit Judge, and MERHIGE and WARRINER, District Judges.

MERHIGE, District Judge.

This matter comes before this 28 U.S.C. § 2281 three judge district court on remand from the United States Supreme Court for "further consideration in light of Bates v. State Bar of Arizona 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810." Consumers Union of the United States, Inc. v. Virginia State Bar, 433 U.S. 917, 97 S.Ct. 2993, 53 L.Ed.2d 1104 (1977). In its order, the Supreme Court vacated this court's prior judgment, reported at 427 F.Supp. 506 (E.D.Va.1976).

The facts of the instant case were stated at length in Consumers Union of United States, Inc. v. American Bar Association, 427 F.Supp. 506, 508-512 (E.D.Va.1976), and shall, therefore, be recounted now only briefly. Plaintiffs, Consumers Union of United States, Inc. (hereinafter "Consumers Union") and Virginia Citizens Consumer Council (hereinafter "Consumers Council"), are non-profit consumer organizations which have brought this 42 U.S.C. § 1983 action seeking declaratory and injunctive relief, and reimbursement from defendants for their costs and attorney fees incurred in prosecuting this action.

Defendants, Virginia State Bar (hereinafter "State Bar"), the Supreme Court of Virginia, Howard W. Dobbins, Rothwell J. Lillard and the Honorable Lawrence W. I'Anson, were all responsible, in varying degrees, for the adoption, interpretation, and/or enforcement of the Code of Professional Responsibility of the Virginia State Bar.¹

In 1974, plaintiff Consumers Union, through questionnaires, sought to elicit certain information from all Arlington County, Virginia attorneys who were licensed to practice law in Virginia; Consumers Union planned to use the information it received in publication of a directory that was intended to help consumers select and evaluate Arlington County attorneys. Much of the information which Consumers Union solicited and planned to publish in the directory, however, was data which, if disseminated to the public, would violate certain Virginia Code of Professional Responsibility (hereinafter "State Bar Code") Disciplinary Rule 2-102(A)(6) prohibitions on lawyer advertising.

Plaintiffs, recognizing that few, if any, Arlington County attorneys would risk professional disciplinary sanctions by sending information for use in a publication which would violate State Bar Code rules, ". . . seek a declaration that the defendants have violated the First and Fourteenth Amendment rights of the plaintiffs and their members to gather, publish and receive factual information in reference to attorneys practicing in Arlington County, Virginia, and seek additionally an injunction permanently enjoining the enforcement and operation of State Bar Code Disciplinary Rule 2-102(A)(6). . . . Jurisdiction over the action is premised on 28 U.S.C. § 1343(3)." Consumers Union, supra, 427 F.Supp. at 508.

First Amendment Claims:

In this Court's previous, now vacated opinion, the majority held that both the non-fee information² and the information on attorneys' initial consultation fees which plaintiffs sought to include in their directory was commercial speech protected by the First Amendment, and made applicable to the states through the Fourteenth Amendment. This Court found that State Bar Code Disciplinary Rule 2-102(A)(6) (hereinafter "State Bar Code DR2-102(A)(6)" or "DR2-102(A)(6)") was overbroad and unconstitutionally infringed upon plaintiffs' rights to receive and gather consumer information. The Court therefore permanently enjoined defendants from enforcing the State Bar Rules and Regulations against publishing such information. Consumers Union, supra, 427 F.Supp. at 523.

Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), reinforces our prior opinion as to the unconstitutionality of the State Bar Rules' prohibition against publication of both the non-fee information and attorneys' initial consultation fees information at issue in this case. The Court therefore reinstates and reissues its original opinion and order as to these issues. See Consumers Union, supra, 427 F.Supp. at 517-523.

Furthermore, in light of Bates, this Court holds that plaintiffs are entitled to gather and publish, and their members are entitled to receive, truthful information as to the fees at which the listed lawyers will perform the routine legal services enumerated in plaintiffs' questionnaire.³

The heart of the dispute before us today is whether lawyers may constitutionally advertise the prices at which certain routine services will be performed . . whether the State may prevent the publication in the newspaper of appellants' truthful advertisement concerning the availability and terms of routine legal services. We rule simply that the flow of such information may not be restrained . . ..

Bates, supra, 433 U.S. at 367-68, 384, 97 S.Ct. at 2701-2709. (Emphasis in original).

Attorneys Fees:

Plaintiffs have asked this Court to grant them reasonable counsel fees, as well as their costs in prosecuting this action. Defendants have not opposed plaintiffs' motion that defendants be ordered to pay costs.⁴ Indeed, it is well established that a federal court may tax costs against state parties to federal law suits, in the same way that it may tax costs against any other federal court litigant. See e. g., Rule 54(d), Federal Rules of Civil Procedure; Hutto v. Finney, 437 U.S. 678, 696, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 77, 48 S.Ct. 97, 72 L.Ed. 168 (1926); Samuel v. University of Pittsburgh, 538 F.2d 991, 999 (3rd Cir. 1976).

Defendants do contend, however, that this Court may not, or, in the alternative, should not, allow plaintiffs to recover attorneys fees from defendants. The Civil Rights Attorneys' Fees Awards Act provides that

. . . In any action or proceeding to enforce a provision of Section . . . 1983 . . . of this Title (42 U.S.C.), . . . the Court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

42 U.S.C. § 1988 (1976) (emphasis added).

Despite the broad language of 42 U.S.C. § 1988, giving this Court discretion in "any action or proceeding" under 42 U.S.C. § 1983, to allow the prevailing party attorneys fees as part of costs, the state defendants assert that the doctrines of sovereign immunity, judicial immunity, and "good faith" immunity preclude awarding attorneys fees against them. In Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), decided after defendants filed their brief in this case, the Supreme Court held that neither the sovereign immunity nor "good faith" defenses insulate state defendants, when sued in their official capacities, from liability for attorneys fees under 42 U.S.C. § 1988. See Hutto v. Finney, at 693-700, 98 S.Ct. 2565.

The only remaining issue raised by defendants as to this court's jurisdiction, under 42 U.S.C. § 1988, to order that defendants pay plaintiffs reasonable attorneys fees is whether defendants are protected by judicial immunity from such an award. Defendants I'Anson, Dobbins and Lillard, sued in both their official and their individual capacities, are absolutely immune, in their individual capacities, from personal liability for plaintiffs' attorneys fees. "Awards against the official in his individual capacity, in contrast, were not to be affected by the statute (42 U.S.C. § 1988)". Hutto v. Finney, 437 U.S. at 700, 98 S.Ct. at 2579. Defendant I'Anson, as Chief Justice of the Supreme Court of Virginia, is clearly immune, in his individual capacity, from all liability — damages, attorneys fees and other costs — for all of his "judicial acts."

As early as 1872, the Court recognized that it was "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, should be free to act upon his own convictions, without apprehension of personal consequences to himself."

Stump v. Sparkman, 435 U.S. 349, 355, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978), quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1872).

The record reflects that defendant Supreme Court of Virginia has the jurisdiction to adopt, modify, or refuse to modify the Virginia Code of Professional Responsibility. See Virginia Code § 54-48 (1974). Chief Justice I'Anson's actions, as a member of the Supreme Court of Virginia, relating to the Court's failure to amend or repeal DR2-102(A)(6), were clearly judicial acts within the Court's jurisdiction; Chief Justice I'Anson therefore in the instant case enjoys absolute judicial immunity from individual liability for attorneys fees.

Defendants Dobbins and Lillard likewise have absolute immunity, in their individual capacities, for their acts as officers of the State Bar. The State Bar is the state administrative agency through which the Supreme Court of Virginia regulates the practice of law in that state. The State Bar, in recommending rules and rule changes to the Supreme Court of Virginia, and in interpreting those rules for its members, acts both at the direction of the court and as a quasi-judicial body. Its members, in the exercise of those quasi-judicial functions are immune from personal liability. See Butz v. Economou, 438 U.S....