Wilson v. State Bar of Ga., 96-9116
| Decision Date | 16 January 1998 |
| Docket Number | No. 96-9116,96-9116 |
| Citation | 132 F.3d 1422 |
| Parties | 11 Fla. L. Weekly Fed. C 960 Jim WILSON, individually and on behalf of all persons similarly situated, Robert K. Finnell, Kenneth C. Fuller, Kenneth J. Rajotte, individually and on behalf of all persons similarly situated, Plaintiffs-Appellants, v. STATE BAR OF GEORGIA, Defendant-Appellee, Forrest L. CHAMPION, JR., Amicus. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
R. Keegan Federal, Jr., Atlanta, GA, for Appellants.
Robert L. Goldstucker, Paul Jay Pontrelli, Nall, Miller, Owens, Hocutt & Howard, Atlanta, GA, for Appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST *, Senior District Judge.
Appellants brought this lawsuit pursuant to 42 U.S.C. § 1983 claiming that two of the Rules and Regulations for the Organization and Government of the State Bar of Georgia, Standard 73 to Rule 4-102(d) and Rule 4-219(c)(2), constitute impermissible bills of attainder, abridge their First Amendment rights, and are void for vagueness under the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment for appellee State Bar of Georgia ("the State Bar"), and appellants now challenge the court's rulings as to their First and Fourteenth Amendment claims. We affirm.
The Rules and Regulations for the Organization and Government of the State Bar of Georgia govern the conduct of lawyers in that state. The Georgia Supreme Court adopts and amends the rules and regulations upon recommendation of the State Bar, and the State Bar enforces them. See, e.g., O.C.G.A. §§ 15-19-30-31, 33-34 (1994); Rules & Regulations for the Org. & Gov't of the State Bar of Ga. ("State Bar Rules & Regulations"), Rule 4-101 (1996). On September 14, 1995, the Georgia Supreme Court, acting in response to a motion the State Bar filed in 1992, adopted two related amendments to the rules and regulations. These amendments went into effect on October 15, 1995. The first, Standard 73 to Rule 4-102(d), provides:
A lawyer shall not allow any person who has been suspended or disbarred under Part IV of these Rules and who maintains a presence in an office where the practice of law is conducted by the lawyer, to:
(a) represent himself or herself as a lawyer or person with similar status;
(b) have any contact with the clients of the lawyer either in person, by telephone, or in writing; or
(c) have any contact with persons who have legal dealings with the office either in person, by telephone, or in writing.
A violation of this Standard may be punished by disbarment.
State Bar Rules & Regulations, Rule 4-102(d), Standard 73 (emphasis added to language under challenge). The second, Rule 4-219(c)(2), states in relevant part:
(c)(2) After a final judgment of disbarment or suspension under Part IV of these Rules, ... the respondent [the suspended or disbarred lawyer] shall take such action necessary to cause the removal of any indicia of the respondent as a lawyer, legal assistant, legal clerk or person with similar status. In the event the respondent should maintain a presence in an office where the practice of law is conducted, the respondent shall not:
(i) have any contact with the clients of the office either in person, by telephone, or in writing; or
(ii) have any contact with persons who have legal dealings with the office either in person, by telephone, or in writing.
State Bar Rules & Regulations, Rule 4-219(c)(2) ().
In its brief submitted in August 1992 in support of the adoption of these amendments, the State Bar represented to the Georgia Supreme Court that "[t]he continued practice of law by disbarred lawyers in this State aided by members of the Bar is an all too frequent occur[re]nce." The State Bar contended that such illicit activity was difficult to regulate and prosecute. Thus, according to the State Bar,
strict prohibition from client contact is absolutely essential to prevent a former lawyer from crossing the line from permissible paralegal activities to giving legal advice, taking fees and misleading the client. Not only does the client suffer under this scenario but the disciplinary system loses credibility because of its inability to effectively protect the public from unethical attorneys even after their disbarment.
The State Bar asserted that several jurisdictions had more stringent restrictions concerning the activities of suspended or disbarred lawyers. It also stated that the amendments
do not prevent the disbarred lawyer from performing such law-related tasks as legal research and drafting. The [amendments] do not restrict the disciplined lawyer from other types of employment. They are narrowly drawn to insulate the person who has been disbarred from contact with the public with respect to legal matters.
(Emphasis added.)
Appellants fall into two classes: (1) "all suspended or disbarred attorneys who are currently employed by lawyers practicing in the State of Georgia" (hereinafter "disbarred attorneys"); and (2) "all practicing attorneys who currently employ or wish to employ the services of suspended or disbarred attorneys in their law offices in the State of Georgia" (hereinafter "employing attorneys"). On October 12, 1995, in an attempt to enjoin the State Bar from enforcing the amendments, appellants filed a motion for a temporary restraining order and preliminary injunction. 1 The primary argument appellants asserted in support of their motion was that the amendments constituted improper bills of attainder. Appellants also argued that the amendments, as written, chilled protected expression and were unduly vague. After conducting a hearing the following day, the district court denied the motion, concluding that appellants had failed to demonstrate irreparable harm. The court, however, expressed "a possible concern as to the broadness of certain language" in the amendments.
On November 20, 1995, the State Bar filed a motion for reconsideration and clarification in the Georgia Supreme Court, requesting the addition of proposed clarifying language to the amendments. It appears that the district court's comments at the October 13 hearing, as well as the fact that the State Bar had "received some telephone inquiries from bar members regarding activities which may be prohibited by these new rules," precipitated the State Bar's motion. The State Bar proposed that Standard 73 be revised as follows:
A lawyer shall not allow any person who has been suspended or disbarred under Part IV of these Rules and who maintains a presence in an office where the practice of law is conducted by the lawyer, to engage in the following conduct:
(a) represent himself or herself as a lawyer or person with similar status;
(b) have any contact with the clients of the lawyer either in person, by telephone, or in writing; or
(c) have any contact with persons, including but not limited to opposing parties, lawyers, witnesses, and insurance personnel, who have legal dealings with the office either in person, by telephone, or in writing.
This Standard shall not be construed in such a manner as to require the lawyer to prohibit the disbarred or suspended lawyer from:
(1) engaging in social conversation unrelated to the representation or legal dealings of the lawyer's office; or
(2) gathering general information in the course of working in the lawyer's office which would involve limited contact with suppliers of information such as law librarians, the Secretary of State, and clerks' offices.
A violation of this Standard may be punished by disbarment.
The State Bar proposed like changes to Rule 4-219(c)(2):
(c)(2) After a final judgment of disbarment or suspension under Part IV of these Rules, ... the respondent shall take such action necessary to cause the removal of any indicia of the respondent as a lawyer, legal assistant, legal clerk or person with similar status. In the event the respondent should maintain a presence in an office where the practice of law is conducted, the respondent shall not:
(i) have any contact with the clients of the office either in person, by telephone, or in writing; or
(ii) have any contact with persons, including but not limited to opposing parties, lawyers, witnesses, and insurance personnel, who have legal dealings with the office either in person, by telephone, or in writing.
This Rule shall not be construed in such a manner as to prohibit the disbarred lawyer from:
(i) engaging in social conversation unrelated to the representation of clients or legal dealings of the law office; or
(ii) gathering general information in the course of working in a law office which would involve limited contact with suppliers of information such as law librarians, the Secretary of State, and clerks' offices.
The State Bar asserted in its motion that The Georgia Supreme Court summarily denied the motion.
On January 8, 1996, the Georgia Supreme Court addressed Standard 73 in In re Thomson, 266 Ga. 157, 464 S.E.2d 818 (1996) (per curiam). The court framed the issue before it as follows: "The issue in this disciplinary case is whether during his suspension, Thomson should be subject to Standard 73, which prohibits a lawyer from allowing a suspended or disbarred attorney in his employ to have substantial client contact." 464 S.E.2d at 819 (emphasis added). In refusing to grant Thomson an exemption from Standard 73, the court wrote:
Thomson requests that he be exempted from Standard 73. He states that he works in a high volume consumer bankruptcy practice under the supervision of other lawyers; he screens new...
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