Dowling v. Alabama State Bar

• Decision Date: 23 September 1988
• Citation: Dowling v. Alabama State Bar, 539 So.2d 149 (Ala. 1988)
• Parties: Brian W. DOWLING v. ALABAMA STATE BAR. 87-228.
• Court: Alabama Supreme Court

Page 149

539 So.2d 149

Brian W. DOWLING v.ALABAMA STATE BAR.

87-228.

Supreme Court of Alabama.

Sept. 23, 1988.

Rehearing Denied Jan. 13, 1989.

Harry Lyon, Pelham, for appellant.

John A. Yung IV, Montgomery, for appellee.

PER CURIAM.

This case involves an action brought by the Alabama State Bar against the appellant, Brian Dowling, alleging failure to comply with DR2-101(A) and DR 1-102(A)(4) of the Alabama Code of Professional Responsibility.The case was heard on October 16, 1987, and the Disciplinary Board found appellant guilty of both charges and held the appropriate discipline to be public censure.The Board denied appellant's motions for directed verdict at the close of the Bar's case and at the close of all the evidence, and denied his motion for JNOV or new trial.

Appellant was a practicing attorney in Dothan at the time this action arose, and he was a Republican candidate for Houston County district judge in the 1986 election.As part of his campaign, appellant had printed several cards reading "Judge Brian Dowling for District Judge, Houston County."Appellant, admittedly, is not, and has never been, a judge.

Appellant marked several of these cards with the notation "November 4th" and placed them on his secretary's desk so that visitors to his office might take them.On May 27, 1986, a substantially similar card was mailed to the Judicial Inquiry Commission with the anonymous complaint that Dowling was not, and had never been, a judge.The complaint was forwarded to the Alabama State Bar.

The Bar's case against appellant under the Disciplinary Rules cited above consisted of the card and the anonymous letter, together with the testimony of the clerk of the Supreme Court and other exhibits showing the path these items had followed from the Judicial Inquiry Commission to the Alabama State Bar.

Appellant answered the complaint as follows:

(1) the copy of the card attached to the Bar's complaint was not a "true copy";

(2)he never delivered a misleading card to anyone;

(3) no one was ever misled by any such card;

(4) no proof existed that the cards were misleading; and

(5) the cards are not in any way improper or misleading, especially when they"clearly" indicated on the reverse side that appellant was not, and never had been, a judge.

Appellant testified that he meant to use the word "judge" as a verb, asking the voters to "judge" him to be the best candidate based on his credentials listed on the reverse side of the card.He further testified that no one could have been misled by the cards because "everybody" in Dothan knew he was a lawyer and not a judge, although he conceded that, taken "out of context," the cards could be misleading.Appellant added that he thought his prosecution was a politically motivated attempt by Houston County Democrats, to whom he referred as "the old Wallace crowd," to discredit and destroy his campaign.

The Disciplinary Board found appellant guilty of the violations charged.He appeals from the denial of his motion for directed verdict at the close of the Bar's case and the denial of his motion for JNOV.The appellant asserts three bases for overturning the Disciplinary Board's decision, which are all addressed individually below.

I.The appellant argues that the Disciplinary Board erred in denying his motion for directed verdict or his motion for JNOV because, he says, sufficient evidence was not presented.

A charge brought against an attorney in a disciplinary proceeding must be proved by clear and convincing evidence.Jackson v. Alabama State Bar, 462 So.2d 365(Ala.1985).The appellant contends that the charges brought against him were not proved by clear and convincing evidence.However, Dowling did not deny the essential factual allegations that were specified in the disciplinary charges against him.The complaint contained essentially the following allegations:

1.That the appellant was a licensed practicing attorney at all pertinent times;

2. that the appellant was a candidate for district judge;

3. that as part of his campaign, the appellant had printed and distributed a certain campaign card, a copy of which was attached to the complaint; that the card read, in big letters on the front of the card, "Judge Brian Dowling for District Judge";

4. that the appellant has never been a judge in any judicial system;

5. that in doing the above described acts the appellant made a false or misleading communication about himself, thereby violating DR2-101(A)andDR1-102(A)(4).

The appellant denied in his answer ever delivering a misleading card to anyone, but when he testified before the Bar he admitted that he had distributed the campaign card.He claimed in his answer that the copy of the card attached to the complaint was not a true copy of the card at issue.He did not specify how the copy attached to the complaint was different from the card at issue.It is apparent from the hearing that the only difference the appellant claims is that "November 4th" was not handwritten on the card.

Therefore, we must conclude that the charge that the appellant was guilty of a misrepresentation was proved by clear and convincing evidence, based on the following facts: 1) the substantive charges were not denied, and were, therefore, admitted (Rule 8(d), A.R.Civ.P.); 2) Dowling testified that he approved the final design of the cards; 3) he admitted that the cards could be misleading; and 4) he admitted that he had distributed the cards before he wrote the Bar on July 7, 1988.

II.The appellant argues that DR2-101(A)andDR1-102(A)(4) are so vague or overbroad as to violate the First Amendment to the United States Constitution when applied to him in this case.

In First Amendmentcases, an overbroad statute or rule is one that is designed to burden or punish activities that are not constitutionally protected, but which also includes within its scope activities that are protected by the First Amendment.3 Rotunda, Nowak, Young, Treatise on Constitutional Law Substance and Procedure, § 20.8(1986);NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405(1963).However, the overbreadth of a statute or rule must be not only real, but substantial as well, judged in relationship to the statute or rule's plainly legitimate sweep.Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830(1973).

A statute or rule is void for vagueness when its prohibition is so vague as to include protected speech or as to leave an individual without knowledge as to the nature of speech that is prohibited.SeeKolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903(1983);NAACP v. Button, 371 U.S. 415, 432, 433, 83 S.Ct. 328, 337, 338, 9 L.Ed.2d 405(1963);3 Rotunda, Nowak, Young, Treatise on Constitutional Law Substance and Procedure, § 20.9(1986).Clear guidelines must exist regarding what is illegal, so that there will be no "chilling" effect on the exercise of free speech.NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405(1963).

While the First Amendment guarantees the right to free speech, government is not prevented from proscribing certain speech.To be precise, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements.Brown v. Hartlage, 456 U.S. 45, 60, 102 S.Ct. 1523, 1532, 71 L.Ed.2d 732(1982);Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789(1974).In Vanasco v. Schwartz, 401 F.Supp. 87, 91-92(S.D.N.Y.1975) the federal district court, tracking the language of the Supreme Court, held:

" 'That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution.For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.Calculated falsehood falls into that class of utterances which are "no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed...."Chaplinsky v. New Hampshire, 315 U.S. 568, 572, [62 S.Ct. 766, 769, 86 L.Ed. 1031(1942) ].Hence the knowing false statement and the false statement made with the reckless disregard of the truth, do not enjoy constitutional protection.' "

Vanasco v. Schwartz, 401 F.Supp. 87, 91-92(S.D.N.Y.1975), quotingGarrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125(1964).Therefore, even speech made in a political context may be prohibited.However, "laws regulating campaign advertisements must aim specifically at evils within the allowable area of governmental control ... and not sweep within their ambit other activities that constitute an exercise of protected rights."Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093(1940).

The language of DR2-101(A)andDR1-102(A)(4) is clear:

DR 2-101:

"A lawyer shall not make or cause to be made a false or misleading communication about the lawyer or the lawyer's services.A communication is false or misleading if it:

"(A) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading...."

DR 1-102:

"(A) "A lawyer shall not:

"...

"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, nor be guilty of willful misconduct."

DR2-101(A) is clear in its meaning that misrepresentations are prohibited by a lawyer where they involve the lawyer or his services.However, misrepresentations made by a lawyer in a political context must be shown to have been made with knowledge of their falsity or with reckless disregard of the truth.Cf.New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686(1964);Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789(1974)....