Hirschkop v. Virginia State Bar

• Decision Date: 30 July 1976
• Docket Number: Civ. A. No. 74-0243-R.
• Citation: 421 F. Supp. 1137
• Parties: Philip J. HIRSCHKOP v. The VIRGINIA STATE BAR et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

421 F. Supp. 1137

Philip J. HIRSCHKOP v. The VIRGINIA STATE BAR et al., Defendants.

Civ. A. No. 74-0243-R.

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

July 30, 1976.

COPYRIGHT MATERIAL OMITTED

Philip J. Hirschkop, Alexandria, Va., Richard C. Shadyac, Annandale, Va., Jeremiah S. Gutman, New York City, for plaintiff.

Anthony F. Troy, Deputy Atty. Gen., Richmond, Va., for defendants.

John W. Riely, James E. Farnham, Jack E. McClard, Richmond, Va., for Snead, I'Anson, Carrico, Harrison, Harman, Cochran and Poff.

MEMORANDUM ORDER

WARRINER, District Judge.

This action seeks a declaratory judgment that Disciplinary Rule DR7-107 of the Code of Professional Responsibility, as adopted by defendant Supreme Court of Virginia, is facially unconstitutional.

Plaintiff, Phillip J. Hirschkop, is an attorney duly licensed to practice law in Virginia. As an attorney he is required to be and is a member of the Virginia State Bar. Va. Code Ann. §§ 54-42 et seq. (Repl.Vol. 1974). As a member of the Bar, his conduct is governed by the Code of Professional Responsibility which includes DR-7-107, the disciplinary rule in issue.

Defendant Supreme Court of Virginia adopted the Code on 23 October 1970 and made it applicable to all members of the Virginia State Bar on 1 January 1971. The Supreme Court acted pursuant to Va. Code Ann. § 54-48(b) (Repl.Vol.1974) which authorizes the Court to promulgate "a code of ethics governing the professional conduct of attorneys" and which charges the Court with the responsibility of prescribing and overseeing the procedure for disciplining, suspending and disbarring attorneys who violate any of the Code's provisions.

Jurisdiction is attained pursuant to 28 U.S.C. §§ 1343(3), 2201; 42 U.S.C. § 1983; and the First and Fourteenth Amendments.

I CASE OR CONTROVERSY

Preliminary to consideration of the merits of plaintiff's complaint as to the constitutionality of DR-7-107 the Court directs its attention to whether or not a "case or controversy" still exists herein within the meaning of Art. III, § 2 of the Constitution and of the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.

Prior to the outset of this suit complaints had been instituted before appropriate ethics committees of the Virginia State Bar alleging violations by plaintiff of DR-7-107. As the Court interprets the initial pleadings, plaintiff asked this Court to declare DR-7-107 unconstitutional and make a finding of fact that, notwithstanding this infirmity, it had been selectively or conspiratorially enforced against him in violation of his constitutional rights.

During the pendency of this case a compromise and settlement was reached between certain of the parties on all matters except the constitutionality of DR-7-107 upon which the matter proceeded as against the Supreme Court of Virginia, only. As a part of the settlement agreement defendant Virginia State Bar acknowledged that the grounds upon which past ethics charges had been lodged against plaintiff did not constitute violations of DR-7-107 and that the charges appeared to have had arisen in cases where complainants may have disagreed with the causes supported and espoused by plaintiff. Further, it was agreed that all parties defendant to this action other than the Supreme Court of Virginia would be, and accordingly were, dismissed.

The Court, having considered sua sponte the possibility that the controversy between the parties herein may have become moot upon the resolution of the controversy between plaintiff and the now dismissed defendants, concludes that it has jurisdiction to decide the merits of the request for declaratory relief. The question is "whether the facts alleged under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment" Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941).

The admission in the settlement agreement that "an unusual number of complaints" under DR-7-107 had been filed against plaintiff would justifiably cause him apprehension that more complaints may be filed against him in the future. The settlement agreement does not preclude such complaints. Successful prosecution of such complaints could well result in grave consequences to plaintiff. Under these circumstances, the Court finds that the controversy remains sufficiently substantial, immediate and real so as to require retention of jurisdiction. See, Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1964); Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911).

II HISTORY OF DR 7-107

The genesis of DR 7-107 was the mandate laid down by the United States Supreme Court, speaking through Mr. Justice Clark, in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) that:

The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors nor counsel for defense . . . should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures. 384 U.S. at 363, 86 S.Ct. at 1522, 16 L.Ed.2d at 620.

The American Bar Association, (ABA) had already taken the initiative by creating an Advisory Committee on Fair Trial and Free Press which, in effect, was assigned the task of formulating regulations that would implement the directives of Sheppard.¹

The Committee studied the available literature. It sent a representative to England to study how the problem was dealt with there. It also made extensive studies of the problem in three sample cities and less extensive studies in 20 others. Judges, prosecuting attorneys and defense counsel were interviewed and responded to questionnaires with regard to the effect of counsels' comments on potential or actual jurors, albeit no empirical data was accumulated to determine what actually prejudiced jurors. Further, a number of meetings were held with news media representatives and law enforcement agencies. After this survey a tentative draft of the regulation was distributed. Eight thousand copies were forwarded to various presumably interested individuals and organizations, among those were the A.C.L.U. and various news media organizations.

All suggestions that resulted from this distribution of the draft were considered and a series of additional meetings was held by the Committee in which the initial draft was amended numerous times. The Committee subsequently approved a final draft of regulations from which DR 7-107 of the Code of Professional Responsibility was drawn.² Thereafter the Code was approved by the ABA and was adopted by virtually every State, including Virginia.

III DR 7-107 INVOKES STATE ACTION

If all we had were Bar adopted ethical standards this case would be before us in a decidedly different posture since the Bar can (and should) voluntarily provide ethical guidelines for the conduct of lawyers in the interest of justice. Indeed, it may well be that the best policy for all lawyers to follow would be that one adopted by many if not most lawyers — many of them the best we have — that no matter in litigation may ever be the subject of comment to the press. Most lawyers hold strictly to the concept of trial in the courtroom, not on the T.V. tube. See Reardon Report at p. 81. (Tentative Draft 1966).

Energy, thought and effort expended in public relations campaigns is more often for the pecuniary and ego benefit of the lawyer and at the expense of the best interests of his client — though there may be exceptions to this rule. There is a cult of lawyers who have sought and received nationwide notoriety and have attracted thereby lucrative clients. It could be that such lawyers are particularly interested in securing First Amendment rights to publicize themselves. Other lawyers may sincerely believe that justice cannot be found in the courtroom unless coerced by the power of the popular press.

But we are not dealing with voluntary ethical standards nor are we dealing with motivations. We are dealing with Disciplinary Rules adopted by the Supreme Court of Virginia and imposed with the force of law on all lawyers in Virginia. Va. Code Ann. § 54-48 (Repl.Vol.1974). Under these circumstances, we must concern ourselves not with what lawyers should do but instead what they are constitutionally permitted to do.

The Reardon Committee considered the constitutional implications of their proposals and concluded that they raise no constitutional problem.³ Mr. Hirschkop differs with the Committee's conclusion. His position, as the Court perceives it, is that the Reardon proposal⁴ is unconstitutionally vague and overbroad and that, a fortiori, DR-7-107 suffers from the same infirmities as it not only incorporates these speech restrictions but extends them to cover juvenile and administrative hearings and civil jury and bench trials notwithstanding the fact that these areas were not within the scope of the research and analysis upon which the Committee's proposal was based.⁵

IV VAGUENESS AND OVERBREADTH

A. Traditional Analysis

Plaintiff's labeling of this cause as a vagueness and overbreadth case invites us to apply procedural and substantive due process analysis in the First Amendment context as the Supreme Court has done in a long line of First Amendment cases⁶ and as the 7th Circuit has done with respect to DR-7-107.⁷ The accepted phrases of art used with respect to these issues are that the language of the regulation must be clear, precise, narrowly tailored and the least drastic means to achieve a constitutionally permissible end. The Courts, however, have wisely acknowledged the difficulty...