Public Citizen v. Louisiana Attorney Disciplinary, Civil Action No. 08-4451.
| Decision Date | 03 August 2009 |
| Docket Number | Civil Action No. 08-4451. |
| Citation | 642 F.Supp.2d 539 |
| Parties | PUBLIC CITIZEN, INC., et al. v. LOUISIANA ATTORNEY DISCIPLINARY BOARD, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Richter, Klein & Hilbert, LLC, Terry Bennett Loup, Morris Bart, Ltd., Ernest Enrique Svenson, Svenson Law Firm, New Orleans, LA, Gregory A. Beck, Public Citizen Litigation Group, Washington, DC, for Public Citizen, Inc., et al.
Scott G. Wolfe, Jr., The Wolfe Law Offices, LLC, New Orleans, LA, pro se.
Phillip A. Wittmann, Matthew S. Almon, Stone, Pigman, Walther, Wittmann, LLC, Jessica Davidson Miller, John H. Beisner, O'Melveny & Myers, LLP, Kathryn Marie Knight, Stone, Pigman, Walther, Wittmann, LLC, New Orleans, LA, for Louisiana Attorney Disciplinary Board, et al.
ORDER AND REASONS
MARTIN L.C. FELDMAN, District Judge.
The pending motions orbit one central question: Can Louisiana's proposed Rules regarding lawyer advertising withstand Constitutional scrutiny?
Before the Court are the defendants' Motion to Dismiss and Motion for Summary Judgment; the Motion of Public Citizen, Inc., et al. for Summary Judgment; and the Motion of Scott G. Wolfe, Jr. et al for Summary Judgment. The defendants' Motion to Dismiss is DENIED, and the motions for summary judgment are GRANTED IN PART and DENIED IN PART, subject to the reasons below. The parties shall submit a Judgment within ten days that is consistent with this Order and Reasons.
The Louisiana legislature adopted a concurrent resolution in 2006, stating that "the manner in which some members of the Louisiana State Bar Association are advertising their services in this state has become undignified and poses a threat to the way lawyers are perceived." The resolution called on the Louisiana Supreme Court to establish a committee to study lawyer advertising and to recommend changes to Part 7 of the Louisiana Rules of Professional Conduct, which governs lawyer advertising, by March 1, 2007. The Louisiana Supreme Court created the Committee to Study Attorney Advertising, which obtained a copy of a Florida survey that gauged the public's views on attorney advertising.
The LSBA Rules of Professional Conduct Committee met four times between September 21, 2006 and October 6, 2006 to assemble a series of proposed amendments to lawyer advertising Rules. The Supreme Court Committee then met on October 23, 2006 to consider the proposed amendments and voted to endorse them. The LSBA Committee also held four public hearings on the proposed Rule changes between November 2, 2006 and November 16, 2006. After all that, the Louisiana House of Delegates voted on June 7, 2007 to accept the LSBA Committee's proposal and recommended that the Louisiana Supreme Court incorporate the proposed Rules into the Rules of Professional Conduct. On July 3, 2008, the Louisiana Supreme Court adopted the Rules, to become effective on December 1, 2008.
Plaintiffs filed suit and sought a preliminary injunction against enforcement of the Rules in Fall 2008. In response, the Louisiana Supreme Court postponed the effective date of the Rules until April 1, 2009. During that time, the LSBA commissioned a survey on the attitudes of consumers and lawyers toward lawyers and lawyer advertising in Louisiana. After the completion of the survey, on February 18, 2009, the Louisiana Supreme Court ordered that the effective date of the new Rules be deferred until October 1, 2009 "to allow the LSBA and the Court to further study certain Rules in light of the constitutional challenges that have been raised." On March 11, 2009, the Louisiana Supreme Court asked the LSBA Committee to review several of the challenged Rules.
The LSBA Committee reported back on April 15, 2009, and recommended that the high court modify the Rules prohibiting celebrity spokespeople, non-authentic scenes, and actors playing clients—so as to permit such commercials if accompanied by a special disclaimer or disclosure. On June 4, 2009, the Louisiana Supreme Court adopted the LSBA Committee's final recommendations as drafted and changed during the investigative process; October 1, 2009 is the effective date of the new Rules.
Public Citizen, Inc., Morris Bart, Morris Bart LLC, William N. Gee, III, and William N. Gee, III, Ltd. ("Public Citizen plaintiffs") challenge the following Rules:
Rule 7.2 (c)(1)(D): prohibiting as false, misleading, or deceptive 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 as false, misleading, or deceptive communications that "promise[] results."
Rule 7.2(c)(1)(I): prohibiting as false, misleading, or deceptive 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 as false, misleading, or deceptive communications that "include[] the portrayal of a judge or a jury."1
Rule 7.2(c)(1)(L): prohibiting as false, misleading, or deceptive 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): "Any 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."
Rule 7.5(b)(2)(c): allowing "a non-lawyer spokesperson speaking on behalf of the lawyer or law firm, as long as that spokesperson shall provide a spoken and written disclosure, as required by Rule 7.2(c)(10), identifying the spokesperson as a spokesperson, disclosing that the spokesperson is not a lawyer and disclosing that the spokesperson is being paid to be a spokesperson, if paid."
Scott G. Wolfe, Jr. and Wolfe Law Group, LLC ("Wolfe plaintiffs") challenge the following Rules, as they relate to Internet-based advertising and communications:
Rule 7.2(a): requiring that advertisements and unsolicited written communications contain the name of at least one lawyer responsible for their content and one or more bona fide office location(s), by city or town, of the lawyer or lawyers who will actually perform the services advertised.
Rule 7.2(c)(10): specifying the disclosure requirements: all written disclosures shall be in a type as large as the largest print size used in the advertisement and all advertisements that are televised or displayed electronically shall be both spoken aloud and written legibly.
Rule 7.2 (c)(11): "No lawyer shall, directly or indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the same firm."
Rule 7.6(a): defining "computer-accessed communications" as
Rule 7.6(c)(3): requiring that unsolicited electronic mail communications state "LEGAL ADVERTISEMENT" in the subject line.
Rule 7.7: explaining the duties of the LSBA Committee and the evaluation process for lawyer advertising, including a fee for filing a proposed advertisement for evaluation.
Defendants move to dismiss plaintiffs' complaints; they also seek summary judgment. In their motion to dismiss, defendants assert this Court does not have subject matter jurisdiction to hear the claims because the case is not ripe for adjudication and plaintiffs do not have standing to sue.
Defendants vigorously contend: plaintiffs do not have standing to sue because they have no injury in fact or imminent risk of harm; they have failed to show how any concrete injury is causally connected to any of defendants' actions; and their claims are not redressable by a decision by this Court because they have not shown that their advertisements would comply with the other new lawyer advertising Rules. They add that Public Citizen lacks associational standing because it has failed to identify a willing speaker who would otherwise have standing and alleges only a generalized grievance.
Defendants add that plaintiffs have not submitted any advertisements to the LSBA for review, the LSBA has not found any of their advertisements to be non-compliant, and none of the defendants have...
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