Norris v. Turner
| Citation | 637 F. Supp. 1116 |
| Decision Date | 30 June 1986 |
| Docket Number | No. 85-AR-3192-S.,85-AR-3192-S. |
| Parties | Robert McKim NORRIS, Jr., Plaintiff, v. Edward P. TURNER, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Ralph Ogden, M. Anne Wilcox, Wilcox & Ogden, Golden, Colo., Edward Still, Reeves and Still, Birmingham, Ala., for plaintiff.
Roger H. Bedford, Sr., Bedford, Bedford & Rogers, P.C., Russellville, Ala., pro se.
William H. Morrow, Jr., General Counsel, Ala. State Bar, Montgomery, Ala., for all defendants.
The court has for consideration the application of plaintiff, Robert McKim Norris, Jr., for attorney's fees and expenses pursuant to 42 U.S.C. § 1988 against defendants, the members of the Board of Bar Commissioners of the State Bar of Alabama, and the members of its Disciplinary Commission. The court conducted an evidentiary hearing on May 22, 1986, limited to the question of plaintiff's disputed entitlement to such fees and expenses. In finding the following facts leading to an answer of this question, the court has not read nor considered the deposition of Norris which was not offered by defendants until after the record was closed. However, because at the evidentiary hearing both plaintiff and defendants referred to matters, including an affidavit, contained in briefs, although not previously filed by the Clerk, the court considered these materials without objection and therefore will order the materials to be filed by the Clerk and included in the official record.
On and prior to May 17, 1983, Disciplinary Rule 2-101(A)(7)(d), governing certain conduct of members of the Alabama Bar, provided:
Another Disciplinary Rule then existing required the following disclaimer in every attorney's advertisement:
No representation is made about the quality of legal services to be performed or the expertise of the lawyer performing such service. (emphasis supplied).
All such Disciplinary Rules were then and are now promulgated by the Supreme Court of Alabama, which is vested with the sole power to legislate the rules of conduct for attorneys in Alabama and is the ultimate tribunal for administering discipline to members of the Bar. Neither the Board of Bar Commissioners nor its Disciplinary Commission has any power except the power to recommend rules, to interpret rules, and to bring charges for alleged violations of rules.
On September 8, 1983, R.B. Jones, a licensed attorney admitted to practice in the State of Alabama, filed a petition with the Supreme Court of Alabama asserting that said Disciplinary Rule 2-102(A)(7)(d) was unconstitutional in that it denied Jones "and all others desiring the use of electronic advertising their Constitutional Rights". Jones' petition asked that he be allowed to advertise by electronic media and that the Supreme Court "revise the Disciplinary Rules to conform with the decisions of Bates vs. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); In the matter of R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982), and other cases decided by the United States Supreme Court".
As of September 8, 1983, DR 2, as noted, limited lawyer advertising to the print media and required that any advertising contain a disclaimer to the effect that no representation was being made about the quality of the legal services or the expertise of the lawyer. On May 16, 1983, prior to filing his petition with the Supreme Court, Jones had sought an ethics opinion from the Disciplinary Commission which would, in effect, have allowed him to advertise in the electronic media. The reaction of the Disciplinary Commission was to advise Jones of its intent to enforce the prohibition against non-print advertising. Jones' request for an opinion by the Disciplinary Commission was in compliance with procedures available to him prior to petitioning the Supreme Court for a rule change.
On January 26, 1984, the Board of Bar Commissioners, in light of Jones' petition to the Supreme Court of Alabama, changed its mind and formally recommended to the Supreme Court, inter alia:
Our Committee met and deliberated at length. It has studied every available rule in other jurisdictions in which the code permits electronic media advertising. The Committee made an extensive report to the Board of Bar Commissioners. Following that report, the Board of Bar Commissioners would recommend to the Court amendments to the Code of Professional Responsibility of the Alabama State Bar relative to DR 2 thereto to provide for the inclusion of electronic media advertising.
On February 9, 1984, the Alabama Broadcasters Association filed with the Supreme Court of Alabama an amicus curiae brief in support of Jones' petition. This brief discussed most, if not all, of the judicial decisions bearing on the subject of electronic media advertising by lawyers.
On April 2, 1984, the Supreme Court of Alabama published a notice in the Southern Reporter of a proposed revised rule to permit electronic media advertising and set a public hearing to be held on June 11, 1984, before the Court.
On June 5, 1984, the Federal Trade Commission filed with the Supreme Court of Alabama materials on the subject of the public hearing as advertised, including an amicus curiae brief which had been filed by the FTC with the Supreme Court of Iowa, and drawing particular attention to proposed changes in the ABA Model Rules.
The Board of Bar Commissioners and a special committee of the Bar entitled "Task Force To Evaluate Advertising And Solicitation In Alabama Of The Alabama State Bar" presented voluminous materials to the Supreme Court of Alabama bearing in depth on the proposed rule change.
Prior to the public hearing which was held on June 11, 1984, several Alabama lawyers filed statements with the Supreme Court of Alabama setting forth their differing positions respecting the proposed rule change. Norris was not among them.
On October 25, 1985, the Supreme Court of Alabama amended the Code of Professional Responsibility of the Alabama State Bar insofar as here pertinent, so that the here pertinent rules thereafter read:
All of the procedures which Jones employed, and by which he succeeded in obtaining the above noted change in the Disciplinary Rules, were clearly made available by the Rules of the Alabama State Bar and by the laws of Alabama.
On December 13, 1985, Norris, without having invoked or having attempted to invoke any remedy or procedure available to him under the Alabama State Bar Rules or the laws of Alabama, filed his complaint in this court invoking 42 U.S.C. § 1983 and charging the Board of Bar Commissioners and its Disciplinary Commission with a potential deprivation under color of law of Norris' right to freedom of speech in that the Disciplinary Commission allegedly could be expected to enforce Temporary DR 2-102(E), which Norris alleged to constitute an unconstitutional prior-restraint in light of Norris' intention to run a television advertisement which he feared would not comply with Temporary DR 2-102(E). Inter alia, Norris' complaint contained the following paragraphs attacking Temporary DR 2-102(E):
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