Pub. Citizen Inc. v. La. Attorney Disciplinary Bd.

• Decision Date: 31 January 2011
• Docket Number: No. 09–30925.,09–30925.
• Citation: 632 F.3d 212
• Parties: PUBLIC CITIZEN, INC.; William N. Gee, III; William N. Gee, III, Ltd.; Morris Bart; Morris Bart, L.L.C., Plaintiffs–Appellants,v.LOUISIANA ATTORNEY DISCIPLINARY BOARD; Billy R. Pesnell, in his official capacity as Chair of the Louisiana Attorney Disciplinary Board; Charles B. Plattsmier, in his official capacity as Chief Disciplinary Counsel for the Louisiana Attorney Disciplinary Board's Office of Disciplinary Counsel, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

632 F.3d 212

PUBLIC CITIZEN, INC.; William N. Gee, III; William N. Gee, III, Ltd.; Morris Bart; Morris Bart, L.L.C., Plaintiffs–Appellants,

v.LOUISIANA ATTORNEY DISCIPLINARY BOARD; Billy R. Pesnell, in his official capacity as Chair of the Louisiana Attorney Disciplinary Board; Charles B. Plattsmier, in his official capacity as Chief Disciplinary Counsel for the Louisiana Attorney Disciplinary Board's Office of Disciplinary Counsel, Defendants–Appellees.

No. 09–30925.

United States Court of Appeals, Fifth Circuit.

Jan. 31, 2011.

Gregory Andrew Beck (argued), Public Citizen Lit. Group, Washington, DC, for Plaintiffs–Appellants.Dane S. Ciolino, Dane S. Ciolino, L.L.C., New Orleans, LA, for Public Citizen, Inc., Gee, III and William N. Gee, III, Ltd.James M. Garner, Christopher T. Chocheles, Joshua Simon Force, Sher, Garner, Cahill, Richter, Klein & Hilbert, L.L.C., Terry B. Loup, Morris Bart, New Orleans, LA, for Bart and Morris Bart, L.L.C.Barry W. Ashe (argued), Matthew Steven Almon, Kathryn Marie Knight, Phillip A. Wittmann, Stone, Pigman, Walther & Wittmann, L.L.C., New Orleans, LA, for Defendants–Appellees.Appeal from the United States District Court for the Eastern District of Louisiana.Before HIGGINBOTHAM, CLEMENT and OWEN, Circuit Judges.EDITH BROWN CLEMENT, Circuit Judge:

Before the court is a First Amendment challenge to rules governing attorney advertising in Louisiana. Various Louisiana attorneys and law firms, as well as a national nonprofit organization with Louisiana members, filed suit against the Louisiana Attorney Discipline Board (LADB), a body tasked with investigating lawyer misconduct and making discipline recommendations to the Supreme Court of Louisiana, and two LADB officers. The plaintiffs argued that certain Louisiana Rules of Professional Conduct unconstitutionally infringe on the commercial speech of Louisiana lawyers. The district court granted partial summary judgment to the plaintiffs and partial summary judgment to the defendants. Five plaintiffs appealed, continuing to challenge the constitutionality of six Louisiana rules. We AFFIRM IN PART and REVERSE IN PART.

FACTS AND PROCEEDINGS

In 2006, the Louisiana legislature adopted a resolution directing the Louisiana Supreme Court to study attorney advertising and to revise the related Rules of Professional Conduct. The Louisiana Supreme Court created a committee (LSCT Committee), the membership of which overlapped with that of the Louisiana State Bar Association's existing Rules of Professional Conduct Committee (LSBA Committee). The LSBA Committee was, at that time, already reviewing Louisiana's attorney advertising rules. At the request of the court, the LSBA Committee continued its work with the goal of submitting a set of proposed attorney advertising rules to the LSCT Committee for review.

The LSBA Committee met four times and assembled a series of proposals, which it eventually posted on the LSBA website for public comment. These proposals relied heavily on the rules governing attorney advertising in New York and Florida, as well as a survey of Florida residents undertaken at the request of the Florida Bar Association. The committee also conducted four public hearings in Shreveport, Baton Rouge, New Orleans, and Lafayette. In response to the information it received from these sources, the LSBA Committee added a prohibition on the “portrayal of a ... jury” in an unsolicited communication to its proposed rules and narrowed the scope of various other rules. The LSBA Committee submitted the revised proposals to the LSCT Committee, which recommended two changes, both of which were adopted and neither of which is relevant to this appeal. The Louisiana Supreme Court then accepted the proposed rules without change and incorporated them into Rule 7 of the Louisiana Rules of Professional Conduct (Louisiana Rules).

Shortly thereafter, two challenges to the constitutionality of the new rules were filed in federal district court and were ultimately consolidated. In response to these lawsuits, the Louisiana Supreme Court postponed the effective date of the rules from July 2009 to October 2009 to “allow the LSBA and the Court to further study certain rules in light of the constitutional challenges that have been raised.” The district court continued the consolidated action while the LSBA Committee undertook further study of perceptions of attorney advertising within the state.

It conducted a survey of Louisiana residents and a survey of members of the Louisiana Bar Association (Bar Members) regarding both groups' perceptions of attorney advertising within the state. The survey of Louisiana residents was conducted by telephone and yielded 600 responses from randomly-selected Louisianians from all regions of the state. It was approximately twelve minutes and thirty seconds long and consisted of thirty-two questions. A web survey sent by e-mail to nearly 18,000 Bar Members resulted in almost four thousand completed responses. It contained thirty-one questions. The LSBA Committee also held three focus group discussions, which involved a total of twenty-five respondents and were held in New Orleans, Lafayette, and Shreveport.

The LSBA Committee ultimately presented a report of its findings and conclusions to the Louisiana Supreme Court. The report endorsed the majority of the Louisiana Rules but recommended certain modifications making some rules more stringent and others less so. The Supreme Court adopted all of the proposed revisions and reissued the rules with a press release confirming their October 2009 effective date.

The district court took up the case again. It denied LADB's motion to dismiss for lack of jurisdiction, finding LADB's arguments that the dispute was unripe and that the various plaintiffs lacked standing to be without merit. It then granted partial summary judgment to each group of plaintiffs and partial summary judgment to LADB and its officers. Of the three summary judgment rulings, only one was appealed. Public Citizen, Inc., Morris Bart, Morris Bart LLC, William N. Gee, III, and William N. Gee, III, Ltd. (collectively, the “Louisiana Plaintiffs”), maintain that six sub-parts of Rule 7.2(c) constitute unconstitutional restrictions on commercial speech. Rule 7.2(c) restricts the content of all advertisements and unsolicited written communications concerning a lawyer's services. The portions challenged on appeal are:

Rule 7.2(c)(1)(D) prohibiting communications that “contain[ ] a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer's services provided upon request;”

Rule 7.2(c)(1)(E) prohibiting communications that “promise[ ] results;”

Rule 7.2(c)(1)(I) prohibiting communications that “include[ ] a portrayal of a client by a non-client without disclaimer of such, as required by Rule 7.2(c)(10), or the depiction of any events or scenes or pictures that are not actual or authentic without disclaimer of such, as required by Rule 7.2(c)(10);”

Rule 7.2(c)(1)(J) prohibiting communications that “include[ ] the portrayal of a judge or a jury;”¹

Rule 7.2(c)(1)(L) prohibiting communications that “utilize[ ] a nickname, moniker, motto or trade name that states or implies an ability to obtain results in a matter;”

Rule 7.2(c)(10) requiring “[a]ny words or statements required by these Rules to appear in an advertisement or unsolicited written communication must be clearly legible if written or intelligible if spoken aloud. All disclosures and disclaimers required by these Rules shall be clear and conspicuous. Written disclosures and disclaimers shall use a print size at least as large as the largest print size used in the advertisement or unsolicited written communication, and, if televised or displayed electronically, shall be displayed for a sufficient time to enable the viewer to easily see and read the disclosure or disclaimer. Spoken disclosures and disclaimers shall be plainly audible and spoken at the same or slower rate of speed as the other spoken content of the advertisement. All disclosures and disclaimers used in advertisements that are televised or displayed electronically shall be both spoken aloud and written legibly.”²

The court will review the constitutionality of each of these rules seriatim.³

STANDARD OF REVIEW

We review the district court's decision to grant a motion for summary judgment de novo. Cooper v. Hewlett–Packard Co., 592 F.3d 645, 651 (5th Cir.2009). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

DISCUSSION

The United States Supreme Court recognized that the First Amendment's protections apply to commercial speech in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). It later elaborated that this type of speech merits only “a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, ... allowing modes of regulation that might be impermissible in the realm of noncommercial expression.” Ohralik v. Ohio State Bar Assoc., 436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). The Court specifically applied First Amendment protections to attorney advertising in Bates v. State Bar of Arizona, “holding that advertising by attorneys may not be subjected to blanket suppression ... [but] not ... that advertising by attorneys may not be regulated in any way.” 433 U.S. 350, 383, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). It encouraged the bar to “assur[e] that advertising by attorneys flows both freely and cleanly.” Id. at 384, 97 S.Ct. 2691.

The Court later clarified that different types of commercial speech merit different levels of protection. Advertising that “is inherently likely to deceive or where the record indicates that a...