v. Consumers Union of United States, Inc, 79-198

Decision Date02 June 1980
Docket NumberNo. 79-198,79-198
Citation64 L.Ed.2d 641,100 S.Ct. 1967,446 U.S. 719
Parties., Appellants, v. CONSUMERS UNION OF the UNITED STATES, INC., et al
CourtU.S. Supreme Court
Syllabus

Appellant Virginia Supreme Court, which claims inherent authority to regulate and discipline attorneys, also has statutory authority to do so. Pursuant to these powers, the court promulgated the Virginia Code of Professional Responsibility (Code) and organized the Virginia State Bar to act as an administrative agency of the court to report and investigate violations of the Code. The statute reserves to the state courts the sole power to adjudicate alleged violations of the Code, and the Supreme Court and other state courts of record have independent authority on their own to initiate proceedings against attorneys. When one of the appellees sought to prepare a legal services directory, the attorneys who were canvassed refused to supply the requested information for fear of violating the Code's prohibition against attorney advertising (DR 2-102(A)(6)). Appellees then brought an action in Federal District Court under 42 U.S.C. § 1983 against, inter alios, the Virginia Supreme Court and its chief justice (also an appellant) in both his individual and official capacities, seeking a declaration that the defendants had violated appellees' First and Fourteenth Amendment rights to gather, publish, and receive factual information concerning the attorneys involved, and a permanent injunction against the enforcement and operation of DR 2-102(A)(6). Ultimately, after the Virginia Supreme Court declined to amend DR 2-102(A)(6) despite the State Bar's recommendation to do so and despite the intervening decision in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810, holding that enforcement of a ban on attorney advertising would violate the First and Fourteenth Amendment rights of attorneys seeking to advertise fees charged for certain routine legal services, the District Court declared DR 2-102(A)(6) unconstitutional on its face and permanently enjoined defendants from enforcing it. The court further held that the Civil Rights Attorney's Fees Awards Act of 1976, which provides that in any action to enforce 42 U.S.C. § 1983, inter alia, a district court, in its discretion, may award the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, authorized in proper circumstances the award of fees against the Virginia Supreme Court and the chief justice in his official capacity, and that here such an award was not unjust because the Supreme Court had denied the State Bar's petition to amend the Code and had also failed to amend it to conform to the holding in Bates, supra.

Held :

1. In promulgating the Code, the Virginia Supreme Court acts in a legislative capacity, and in that capacity the court and its members are immune from suit. Pp. 731-734.

2. But the court and its chief justice were properly held liable in their enforcement capacities. Since the state statute gives the court independent authority on its own to initiate proceedings against attorneys, the court and its members were proper defendants in a suit for declaratory and injunctive relief, just as other enforcement officers and agencies are. Pp. 734-737.

3. The District Court abused its discretion in awarding attorney's fees against the Virginia Supreme Court premised on acts or omissions for which appellants enjoy absolute legislative immunity. There is nothing in the legislative history of the Civil Rights Attorney's Fees Awards Act to suggest that Congress intended to permit an award of attorney's fees to be premised on acts for which defendants would enjoy absolute immunity. Pp. 737-739.

470 F.Supp. 1055, vacated and remanded.

Marshall Coleman, Atty. Gen., Richmond, Va., for appellants.

Ellen Broadman, Washington, D.C., for appellees.

Mr. Justice WHITE delivered the opinion of the Court.

This case raises questions of whether the Supreme Court of Virginia (Virginia Court) and its chief justice are officially immune from suit in an action brought under 42 U.S.C. § 1983 challenging the Virginia Court's disciplinary rules governing the conduct of attorneys and whether attorney's fees were properly awarded under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, against the Virginia Court and its chief justice in his official capacity.

I

It will prove helpful at the outset to describe the role of the Virginia Court in regulating and disciplining attorneys. The Virginia Court has firmly held to the view that it has inherent authority to regulate and discipline attorneys. Button v. Day, 204 Va. 547, 552-555, 132 S.E.2d 292, 295-298 (1963). It also has statutory authority to do so. Section 54-48 of the Code of Virginia (1978) authorizes the Virginia Court to "promulgate and amend rules and regulations . . . [p]rescribing a code of ethics governing the professional conduct of attorneys-at-law . . . ." 1

Pursuant to these powers, the Virginia Court promulgated the Virginia Code of Professional Responsibility (State Bar Code, Bar Code, or Code), the provisions of which were sub- stantially identical to the American Bar Association's Code of Professional Responsibility. Section 54-48 provides no standards for the Virginia Court to follow in regulating attorneys; it is apparent that insofar as the substantive content of such a code is concerned, the State has vested in the court virtually its entire legislative or regulatory power over the legal profession.

Section 54-48 also authorizes the Virginia Court to prescribe "procedure for disciplining, suspending, and disbarring attorneys-at-law"; and § 54-49 authorizes the court to promulgate rules and regulations "organizing and governing the association known as the Virginia State Bar, composed of the attorneys-at-law of this State, to act as an administrative agency of the Court for the purpose of investigating and reporting . . . violation[s] . . . ." 2 Acting under this authority, the Virginia State Bar (State Bar or Bar) has been organized and its enforcement role vested in an ethics committee and in various district committees. Section 54-51 reserves to the courts the sole power to adjudicate alleged violations of the Bar Code,3 and hence the role of the State Bar is limited to the investigation of violations and the filing of appropriate complaints in the proper courts. Under § 54-74, the enforcement procedure involves the filing of a complaint in a court of record, the issuance of a rule to show cause against the charged attorney, the prosecution of the case by the commonwealth attorney, and the hearing of the case by the judge issuing the rule together with two other judges designated by the chief justice of the Virginia Supreme Court.4 Appeal lies to the Virginia Supreme Court.

The courts of Virginia, including the Supreme Court, thus play an adjudicative role in enforcing the Bar Code similar to their function in enforcing any statute adopted by the Virginia Legislature and similar or identical to the role they would play had the Bar Code been adopted by the state legislature.

The Virginia Court, however, has additional enforcement power. As we have said, it asserts inherent power to discipline attorneys. Also, § 54-74 expressly provides that if the Virginia Court or any other court of record observes any act of unprofessional conduct, it may itself, without any complaint being filed by the State Bar or by any third party, issue a rule to show cause against the offending attorney. Although once the rule issues, such cases would be prosecuted by the commonwealth attorney, it is apparent that the Virginia Court and other courts in Virginia have enforcement authority beyond that of adjudicating complaints filed by others and beyond the normal authority of the courts to punish attorneys for contempt.

II

This case arose when, in 1974, one of the appellees, Consumers Union of the United States, Inc. (Consumers Union), sought to prepare a legal services directory designed to assist consumers in making informed decisions concerning utilization of legal services. Consumers Union sought to canvass all attorneys practicing law in Arlington County, Va., asking for information concerning each attorney's education, legal activities, areas of specialization, office location, fee and billing practices, business and professional affiliations, and client relations. However, it encountered difficulty because lawyers declined to supply the requested information for fear of violating the Bar Code's strict prohibition against attorney advertising. Rule 2-102(A)(6) of the Code prohibited lawyers from being included in legal directories listing the kind of legal information that Consumers Union sought to publish.5

On February 27, 1975, Consumers Union and the Virginia Citizens Consumer Council brought an action pursuant to 42 U.S.C. § 1983 against the Virginia Court, the Virginia State Bar, the American Bar Association, and, in both their individual and official capacities, the chief justice of the Virginia Court, the president of the State Bar, and the chairman of the State Bar's Legal Ethics Committee. With respect to the Virginia Court, the complaint identified its chief justice and alleged only that the court had promulgated the Bar Code. The other defendants were alleged to have authority to enforce the Code. Plaintiffs sought a declaration that defendants had violated their First and Fourteenth Amendment rights to gather, publish, and receive factual information concerning attorneys practicing in Arlington County, and a permanent injunction against the enforcement and operation of DR 2-102(A)(6).

A three-judge District Court was convened pursuant to 28 U.S.C. § 2281 (1970 ed.). Defendants moved for indefinite continuance of the trial on the grounds that the ABA and the State Bar were preparing amendments to relax the...

To continue reading

Request your trial
832 cases
  • BJRL v. State of Utah
    • United States
    • U.S. District Court — District of Utah
    • January 28, 1987
    ...whatever policy determinations are made by Attorney General Wilkinson. See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 736, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980) ("Prosecutors ... are natural targets for § 1983 injunctive suits since they are the state officials who ar......
  • NAACP v. State of Cal.
    • United States
    • U.S. District Court — Eastern District of California
    • April 3, 1981
    ... ... Civ.No. S-79-857 MLS ... United States District Court, E. D. California ... Lake Country Estates, Inc. v. Tahoe Reg. Plan., 440 U.S. 391, 99 S.Ct ... cannot be applied to the states of the Union consistently with the fundamental principle that ... Supreme Court of Virginia v. Consumers Union, etc., 446 U.S. 719, 731-732, 100 S.Ct ... ...
  • Fletcher v. U.S. Parole Com'n
    • United States
    • U.S. District Court — District of Columbia
    • May 6, 2008
    ...are an exercise of quasi-legislative administrative authority." Id. at 395 (citing Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 733-34, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), and Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 405 & n. 30, 99 S.Ct.......
  • Croatan Books, Inc. v. Com. of Va.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • November 4, 1983
    ...relief against Attorney General Baliles. As the Supreme Court pointed out in Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 736-37, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980): Prosecutors enjoy absolute immunity from damages liability, Imbler v. Pachtman, 424 U.S. 409 96 S.Ct.......
  • Request a trial to view additional results
6 books & journal articles
  • A blessing in disguise: protecting minority faiths through state religious freedom non-restoration acts.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 23 No. 2, March 2000
    • March 22, 2000
    ...for legislative acts, whether the relief sought is legal or equitable); see also Supreme Court of Virginia v. Consumers Union of the U.S., 446 U.S. 719, 731-32 (1980) (holding judges immune when performing legislative (318.) See Mireles v. Waco, 502 U.S. 9 (1991) (per curiam) (holding judge......
  • Judicial restraints on illegal state violence: Israel and the United States.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 35 No. 1, January 2002
    • January 1, 2002
    ...(amending [section] 1983 to bar injunctions against judicial officers in most circumstances); Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 732, 736 (1980) (noting prosecutors "are natural targets for [section] 1983 injunctive suits since they are the state officers who are threate......
  • Review Proceedings
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...379 (1951) (legislators are immune from suit when acting in a legislative capacity); see also Sup. Ct. of Va. v. Consumers Union of U.S., 446 U.S. 719, 733-34 (1980) (Virginia Supreme Court’s regulation of the state bar involved justices acting in a legislative capacity, rendering them immu......
  • AN UNEXPECTED CHALLENGE: THE CONSEQUENCE OF A LIMITED TRIBAL APPELLATE CASELOAD.
    • United States
    • Journal of Appellate Practice and Process Vol. 23 No. 1, January 2023
    • January 1, 2023
    ...(23.) Larsen v. Senate of Penn., 152 F.3d 240, 252 (3d Cir. 1998) (citing Sup. Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33 (24.) Tribes often enact limited waivers of sovereign immunity in employment settings, but a plaintiff will succumb to an asserted immunity de......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT