Texans Against Censorship v. State Bar of Texas
| Decision Date | 31 March 1995 |
| Docket Number | No. 3:94 cv 61.,3:94 cv 61. |
| Parties | TEXANS AGAINST CENSORSHIP, INC., et al., Plaintiffs, v. STATE BAR OF TEXAS, James A. McCormack, and the District 1A Grievance Committee of the State Bar of Texas, Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
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Charles L. Babcock, Alan N. Greenspan, Susan L. Weiss, Dallas, TX, Ken Poland, Houston, TX, for plaintiffs.
Tracey Crawford, Michael A. Hatchell, Tyler, TX, James E. Coleman, Jr., George M. Kryder, Dallas, TX, Elizabeth D. Whitaker, David S. Coale, Dallas, TX, Russell H. McMains, Corpus Christi, TX, James M. McCormack, Austin, TX, for defendants.
JUSTICE, District Judge.
This civil action, brought pursuant to 42 U.S.C. § 1983, presents many complicated and thorny issues concerning whether regulations which restrict the manner in which lawyers licensed to practice law in Texas may advertise their services, or otherwise solicit business, abridge, inter alia, the right to freedom of expression under the First Amendment. The Supreme Court of Texas recently promulgated these regulations as amendments to the Texas Disciplinary Rules of Professional Conduct, and they are scheduled to become effective on April 1, 1995.
Plaintiff Texans Against Censorship, Inc. ("TAC"), is a nonprofit Texas corporation whose stated purpose is to inform the public on issues relating to attorney advertising and to oppose the adoption of regulations restricting the right of attorneys to advertise. Plaintiffs Jim S. Adler, Wynne L. Creekmore, Jr., Charles Newton, Paul Weinstein, and J.M. (Mick) Bandy (the "individual plaintiffs") are attorneys licensed to practice law in the state of Texas.
As Texas lawyers, the professional conduct of the individual plaintiffs, as well as the attorney-members of TAC, is governed by the Texas Disciplinary Rules of Professional Conduct (the "Texas rules"). The individual plaintiffs have advertised their services, or otherwise solicited business in the past, and wish to continue advertising and soliciting in the future. They contend the amendments to the Texas rules will unconstitutionally interfere with their rights to engage in such advertising and solicitation.
The Supreme Court of Texas entered the order promulgating the amendments to the Texas rules on November 4, 1994, and plaintiffs filed this civil rights action on November 10, 1994. Motions for expedited discovery were granted, and this action proceeded at an accelerated pace. A hearing on defendants' motions to dismiss was conducted on January 5, 1995, and was denied on January 12, 1995. Trial commenced on January 30, 1995, and continued through February 3, 1995.1
Plaintiffs seek an adjudication from this court that the amended rules are, in whole or in part, unconstitutional, and an injunction prohibiting defendant the State Bar of Texas ("state bar"), defendant James M. McCormack, the Chief Disciplinary Counsel of the state bar, and defendant The District 1A Grievance Committee of the state bar from enforcing the amended rules.2
In Texas, the power to regulate the practice of law resides in the Supreme Court of Texas, and derives from both a statutory grant of power, see Tex.Govt.Code Ann. § 81.011(c) (Vernon 1988), and the Supreme Court of Texas' inherent judicial power. See generally Eichelberger v. Eichelberger, 582 S.W.2d 395, 397-98 & n. 1 (Tex.1979). In regulating the legal profession in the state, the Supreme Court of Texas has the responsibility of ensuring that Texas lawyers maintain appropriate standards of professionalism and responsibility. See Tex.R.Disciplinary P. preamble (1992), reprinted in Tex.Govt.Code Ann., tit. 2, subtit. G app. (Vernon Supp. 1995).
To discharge this responsibility, the Supreme Court of Texas and the state bar have worked in concert to develop appropriate regulations governing the professional conduct of Texas lawyers. In 1984, the state bar began actively evaluating the American Bar Association's model rules of professional conduct for possible adoption in Texas. See Schuwerk & Sutton, A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hous.L.Rev. 1 (1990). In 1989, after an extensive drafting process, which involved numerous committees of the state bar, as well as comment by individual lawyers, the Texas Supreme Court adopted the Texas rules, which have been aptly described as a "Texanization" of the American Bar Association's model rules to fit the particular forms and styles of practice common in Texas. See id. at 1-7. The Texas rules became effective January 1, 1990, and have governed the professional conduct of attorneys licensed to practice law in Texas since that date. See id.
The Texas rules are mandates, that speak in terms of "shall" or "shall not." See Tex.Disciplinary R.Prof.Conduct preamble ¶ 10, reprinted in Tex.Govt.Code Ann., tit. 2, subtit. G app. (Vernon Supp.1995). A Texas lawyer who fails to conform his professional conduct to the Texas rules commits professional misconduct and may be suspended or disbarred from practice. See Tex.R.Disciplinary P. 1.06(Q) (). As Chief Disciplinary Counsel of the state bar, defendant McCormack is responsible for enforcing and prosecuting violations of the Texas rules. See Tex.R.Disciplinary P. 5.02 (). Although the Texas rules were adopted by the Supreme Court of Texas, and are not a product of the Texas legislature, the Supreme Court of Texas has determined that the Texas rules should be construed as statutes. O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 399 (Tex.1988).
Part VII of the Texas rules, entitled "information about legal services," regulates the manner in which Texas lawyers may advertise their services or otherwise solicit business. The version of part VII of the Texas rules adopted in 1990 restricts lawyer advertising and solicitations in several respects: lawyers are prevented from making false or misleading communications about their services or firm; lawyers may advertise their specialties in only limited ways; lawyers are required to disclose certain information, if the lawyer advertises that he or she practices in any area of the law; lawyers are prevented from sending written communications to prospective clients in certain circumstances; lawyers are forbidden from contacting certain potential clients in person or telephonically, when a significant motivation for the solicitation is the lawyer's desire for pecuniary gain; and lawyers may practice under only certain names. See Tex.Disciplinary R.Prof.Conduct 7.01-7.04. Defendants assert that the foregoing version of part VII needed amending, because it did not sufficiently protect Texas citizens from false or deceptive lawyer advertising and solicitation.
Apparently, the Texas legislature also had concerns with lawyer advertising and solicitation in the state. During the 1993 regular legislative session, the Texas legislature considered House Bill 2506 which, if passed, would have enacted substantially more restrictive regulations regarding legal advertising and solicitations than existed in part VII of the Texas rules. The state bar reacted swiftly to what it perceived as a legislative encroachment on its sphere of concern, and members of the state bar, including Lonnie Morrison, Esquire, then the president-elect of the state bar, sought to convince the legislature that any problems concerning lawyer advertising were more appropriately addressed through the state bar's self-enforcement regime.
In conjunction with their lobbying efforts, members of the state bar began drafting more restrictive legal advertising and solicitation rules. Morrison produced the first draft, referred to as "draft A" during the trial of this action, and derived his product largely from the lawyer advertising rules already in existence, the rules under consideration in the Texas legislature, and similar rules in other states. Draft A was distributed to the Board of Directors of the state bar at its April 1993, meeting. Still concerned about potential legal advertising legislation, the board of directors of the state bar created the "Special Committee on Lawyer Advertising," whose purpose was to put the finishing touches on part VII of the Texas rules, and thereby assuage any doubts the legislature might have as to the state bar's commitment to reforming the legal advertising rules.3
The Special Committee on Lawyer Advertising, utilizing draft A as a roughcast, embarked on a hastened factfinding process to determine what changes to the legal advertising rules were needed, and what changes were appropriate. It conducted public hearings in eight Texas cities,4 substantially modified Draft A in several additional drafts, and consulted with John F. Sutton, Jr., formerly the Dean of the University of Texas School of Law, concerning the wording and constitutionality of the proposed amendments to the Texas Rules.5 After the public hearings, the special committee, as well as its individual members, received numerous comments and criticisms, from both within and without the legal profession. The special committee also reviewed various suggestions contained in decisions of the United States Supreme Court as to how lawyer advertising and solicitation might be lawfully regulated.
Apparently, the state bar's efforts persuaded the Texas legislature not to enact the legal advertising legislation, and the 1993 regular legislative session ended without a vote on the legislation. The Texas legislature, however, instructed the state bar to adopt rules and regulations...
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