O'Quinn v. State Bar of Texas

• Decision Date: 14 December 1988
• Docket Number: No. C-6790,C-6790
• Citation: 763 S.W.2d 397
• Parties: John M. O'QUINN, Appellant, v. STATE BAR OF TEXAS, Appellee.
• Court: Texas Supreme Court

Page 397

763 S.W.2d 397

57 USLW 2434

John M. O'QUINN, Appellant, v. STATE BAR OF TEXAS, Appellee.

No. C-6790.

Supreme Court of Texas.

Dec. 14, 1988.

Luther H. Soules, III, Law Offices of Luther H. Soules, III, San Antonio, Richard Haynes, Haynes & Fullenweider, T. Gerald Treece, Dean, South Texas College of Law, David Berg, Berg & Androphy, Stanley B. Binion, Baker, Brown, Sharman & Parker, James R. Leahy, Reynolds, Shannon, Miller, Blinn, White & Cook, Houston, for appellant.

Tom Alexander, Alexander & McEvily, Houston, Steven M. Smoot, First Asst. Gen. Counsel, Steven D. Peterson, State Bar of Texas, Jim Mattox, Atty. Gen., Javier P. Guajardo, Atty. General's Office, Austin, for appellee.

KILGARLIN, Justice.

This direct appeal, filed by John M. O'Quinn against the State Bar of Texas, is brought pursuant to Tex. Const. art. V, § 3-b, Tex. Gov't Code Ann. § 22.001(c) (Vernon 1988), and Tex.R.App.P. 140. ¹ In response to the State Bar's disciplinary petition against him, attorney O'Quinn requested in district court a temporary and permanent injunction against prosecution of the action based on alleged federal and state constitutional deficiencies in the State Bar Act and certain disciplinary rules. The trial court denied O'Quinn's request for injunctive relief and, in its order, expressly found that the statute and rules complained of were constitutional, which serves as the basis for conferring direct appeal jurisdiction on this court. We now affirm the order denying injunctive relief and remand to the trial court for further proceedings.

On February 26, 1987, the State Bar filed its disciplinary action against O'Quinn pursuant to the State Bar Act, Tex.Rev.Civ.Stat.Ann. art. 320a-1 (repealed), and certain disciplinary rules promulgated by this court. (Effective September 1, 1987, the State Bar Act was codified as chapter 81 of the Texas Government Code.) To put the matter in context, we quote from the thus far unproved allegations against O'Quinn in the State Bar's disciplinary petition:

II.

Various non-lawyers, including, but not limited to, Robert Loving, James C. McNeilley, Joe Coddington, Lloyd Donner, Terry Clark, and Gary Thomas, have at Respondent's behest recommended employment of Respondent to various potential clients who had not sought their or Respondent's advice regarding employment of an attorney. Some of such recommendations resulted in Respondent's employment and some did not. In instances where employment resulted, Respondent paid some of these non-lawyers sums of money for recommending

and securing such employments. Respondent also promised to pay and/or paid some of these non-lawyers a share of Respondent's fee in the cases. Such conduct violates Disciplinary Rules 1-102(A)(1)(2)(3)(6), 2-103(A)(C), and 3-102(A), and constitutes professional misconduct under State Bar Rules art. X, § 7(1)(5).

ISSUE OF JURISDICTION

Before proceeding to the constitutional issues, we must address the State Bar's contention that this direct appeal should be dismissed for want of jurisdiction. Its principal argument is that the trial court did not deny injunctive relief "on the ground of the constitutionality of a statute of this state." Tex. Gov't Code Ann. § 22.001(c). According to the State Bar, disciplinary rules are not statutes because they are promulgated by this court pursuant to its inherent power to regulate the legal profession. See Tex. Gov't Code Ann. §§ 81.024, 81.071, 81.072. We have considered this argument but nonetheless conclude that our disciplinary rules should be treated like statutes. See Touchy v. Houston Legal Found., 417 S.W.2d 625, 629 (Tex.Civ.App.--Waco 1967), rev'd on other grounds, 432 S.W.2d 690 (Tex.1968); Cochran v. Cochran, 333 S.W.2d 635, 640 (Tex.Civ.App.--Houston 1960, writ ref'd n.r.e.); cf. Freeman v. Freeman, 160 Tex. 148, 154, 327 S.W.2d 428, 433 (1959) (Texas Rules of Civil Procedure have the same force and effect as statutes). Having concluded that jurisdiction lies under Tex. Gov't Code Ann. § 22.001(c), we need not decide whether we would have jurisdiction under the "implied" and "inherent" powers derived from the Texas Constitution, as additionally urged by O'Quinn. We now proceed to the merits of the constitutional challenge.

ISSUE ON APPEAL

Appellant O'Quinn brings a single point of error in our court, as follows:

The trial court erred in denying appellant's application for injunction by its failure to acknowledge that the State Bar Act, Tex.Civ.Stat.Ann. art. 320a-1 (1979) and certain State Bar Rules, Supreme Court of Texas, Rules Governing the State Bar of Texas art. X, § 7(1)(4)(5)(9) (1979), violate the Texas and United States constitutional rights to commercial free speech, equal protection of the laws, and open access to the courts.

We begin by emphasizing the narrowness of our review. The rule governing direct appeals to our court expressly recognizes that our jurisdiction is constitutionally confined "to questions of law only," and that a direct appeal to the supreme court "may present only the constitutionality of a statute of this State when the same shall have arisen by reason of the order of a trial court granting or denying an interlocutory or permanent injunction." Tex.R.App.P. 140(a), (b) (Vernon 1987 Special Pamph.). The same rule provided that "[i]f the case involves the determination of any contested issue of fact, even though the contested evidence should be adduced as to constitutionality or unconstitutionality of a statute, ... such an appeal will be dismissed." Tex.R.App.P. 140(c) (Vernon 1987 Special Pamph.) (emphasis added). Even as amended effective January 1, 1988, the clear language of Rule 140 prohibits us from adjudicating constitutional claims that would require additional factual development below. We assume O'Quinn and his counsel are familiar with the limitations of a direct appeal to our court. Consequently, we conclude that he has, for the purpose of this instant appeal, voluntarily waived any constitutional objections that would require fact findings in his favor. Otherwise, we would have no option but to dismiss the appeal.

THE ARGUMENTS FOR AND AGAINST SOLICITATION

O'Quinn argues that it is unconstitutional for the State Bar to prosecute him for soliciting business through subsequently compensated intermediaries, or "runners," as the State Bar calls them. Citing actions by Abraham Lincoln and others, O'Quinn maintains that times have changed and solicitation The State Bar, joined by the Texas Trial Lawyers Associtation as an amicus curiae, counters that the potential for fraud and invasion of privacy supports a broad prohibition against in-person solicitation. The State Bar also points out that no one has control over a lawyer's "runners" and that the lawyer is not responsible for their actions or representations.

                should now be permitted.  It is not enough, says O'Quinn, for the State Bar to argue that anti-solicitation rules protect the legal community from embarrassing, undignified behavior;  further, O'Quinn contends that the ban against solicitation serves to prohibit competition among lawyers and is especially burdensome upon young lawyers or lawyers in smaller firms.  O'Quinn also asserts that none of his clients have been harmed and none have complained.  O'Quinn asks:  why shouldn't attorneys be allowed to solicit business for pecuniary gain?   Urging a so-called "retreat to reality," O'Quinn says we should break from tradition and allow lawyers to solicit business in-person or through intermediaries.  This is especially true, O'Quinn argues, because accident victims are vulnerable to unscrupulous insurance adjusters
                

FEDERAL AND STATE FREE SPEECH

In Bates v. State Bar of Arizona, 433 U.S. 350, 383-84, 97 S.Ct. 2691, 2708-09, 53 L.Ed.2d 810 (1977), the Supreme Court held that advertising by attorneys may not be subjected to blanket suppression. However, the Court emphasized the narrowness of its ruling and expressly reserved the issue before us:

[W]e also need not resolve the problems associated with in-person solicitation of clients--at the hospital room or the accident site, or in any other situation that breeds undue influence--by attorneys or their agents or "runners." Activity of that kind might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising.

Bates, 433 U.S. at 366, 97 S.Ct. at 2700.

The Court answered part of the question so reserved in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), in which it squarely held that the state, or appropriate Bar authorities, "constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent." Id. 436 U.S. at 449, 98 S.Ct. at 1915. Ohralik is the leading case addressing what is sufficiently misleading in the manner of advertising to permit restraint of an attorney's first amendment free speech rights. In Ohralik, the United States Supreme Court upheld a state's prophylactic rule prohibiting in-person solicitation by an attorney. See id. at 467, 98 S.Ct. at 1924. The Court noted that the manner of in-person solicitation was inherently conducive to overreaching and misconduct. Id. at 464, 98 S.Ct. at 1922. The Court reasoned that in-person solicitation (as opposed to printed advertisement) is still protected but at a lower level of judicial scrutiny of the restrictive legislation. Id. at 457, 98 S.Ct. at 1919. In distinguishing printed advertising from in-person solicitation, the court stated:

Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection. The aim and effect of in-person solicitation may be to provide a one-sided presentation and to...