Rubenstein et al v. The Florida Bar et al
Filing
43
MEMORANDUM OPINION and ORDER denying 30 Motion for Summary Judgment. Signed by Judge Beth Bloom on 11/20/2014. (ls)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-CIV-20786-BLOOM/Valle
ROBERT RUBENSTEIN and
RUBENSTEIN LAW, P.A.,
Plaintiffs,
v.
THE FLORIDA BAR and ARLENE K. SANKEL,
in her official capacity as Chief Branch Discipline
Counsel of the Miami Branch of The Florida Bar,
Defendants.
________________________________________/
MEMORANDUM OPINION AND ORDER
ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court upon the Motion for Summary Judgment, ECF No. [30]
(the “Motion”), filed by Defendants The Florida Bar and Arlene K. Sankel (“Defendants” or the
“Bar”). Plaintiffs Robert Rubenstein and Rubenstein Law, P.A. (“Plaintiffs” or “Rubenstein”)
timely responded. ECF No. [36] (the “Response”). The Court has reviewed the Motion, all
supporting and opposing filings and submissions, and the record in the case. For the reasons that
follow, Defendants’ Motion for Summary Judgment is DENIED.
I.
FACTUAL BACKGROUND
Through this action, Plaintiffs challenge, on First Amendment grounds, certain rules and
guidelines concerning attorney advertising designed and implemented by the Bar and seek
injunctive and declaratory relief.
In January 2013, the Florida Supreme Court adopted a completely revised set of attorney
advertising rules as proposed by the Bar. See In re Amendments to the Rules Regulating The
Florida Bar, 108 So.3d 609 (Fla. 2013). The 2013 rule amendments resulted from extensive
internal and public study and deliberation. In 2007, following the Bar’s 2004 recommendation
of only minor changes to its rules pertaining to attorney advertising, the Florida Supreme Court
directed the Bar to “undertake an additional and contemporary study of lawyer advertising,
which shall include public evaluation and comments about lawyer advertising.”
In re
Amendments to The Rules Regulating The Florida Bar – Advertising, 971 So. 2d 763, 765 (Fla.
2007). The Bar presented its petition to comprehensively amend the rules in 2011. See ECF No.
[29-3] (“2011 Petition”). The new rules for the first time permit attorney advertising to reference
past results so long as statements regarding such results are “objectively verifiable.” Rule 47.13, Rules Reg. Fla. Bar (2013) (the “Rules”). The Rules do not restrict past results statements
based on the advertising medium.
Attorneys governed by the Rules are required to submit all non-exempt advertisements to
the Bar for evaluation as to rule-compliance. Rule 4-7.19, Rules Reg. Fla. Bar (2013). An
attorney may obtain an advisory opinion from the Bar concerning the compliance of a
contemplated advertisement, but may also begin advertising prior to Bar review. Id. Advisory
opinions “are advisory only and are not the basis for action by [the Bar’s] grievance
committees.”
Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer
Advertising or Solicitation § 1 (2002) (“Opinion Procedures”). The Bar must advise the attorney
as to its evaluation of all filed advertisement by issuing a Notice of Compliance or Notice of
Noncompliance. Rule 4-7.19. The Bar may subsequently change its finding of compliance, and
must then provide notification of noncompliance. Id. A finding of compliance by the Bar is
binding on the Bar in any subsequent grievance proceeding, such that a favorable opinion serves
as a safe harbor, protecting the advertising attorney from discipline arising out of dissemination
2
of the subject advertisement. Id. By contrast, the Rules provide that “[a] lawyer will be subject
to discipline as provided in these rules for . . . dissemination of a noncompliant advertisement in
the absence of a finding of compliance by The Florida Bar,” and where a Notice of
Noncompliance is issued, require that the Bar “advise the lawyer that dissemination or continued
dissemination of the advertisement may result in professional discipline.” Id.
Evaluation of attorney advertising submissions are handled by the Bar’s Ethics and
Advertising Department. Notices and opinions issued by the Ethics and Advertising Department
under Rule 4-7.19 may be appealed to the Bar’s Standing Committee on Advertising, and from
there to the Bar’s Board of Governors. Opinion Procedures §§ 3(c), 5(a).
The Bar’s Lawyer Regulation Department is responsible for the investigation and
prosecution of ethics complaints and violations of the Rules, including those regulating attorney
advertisement. The Ethics and Advertising Department has no separate authority to commence
disciplinary investigations or proceedings.
ECF No. [31-3] (“First Tarbett Decl.”) ¶ 3.
According to the Director of the Lawyer Regulation Department, the Department “does not
investigate failure to abide by advertising guidelines or advisory opinions issued by the Ethics
and Advertising Department of the Bar and does not initiate disciplinary proceedings based upon
failure to follow guidelines or advisory opinions.” ECF No. [31-7] (“Berry Decl.”) ¶ 2.
Relying on the newly amended Rules, Plaintiffs developed, at great expense, a
comprehensive advertising campaign featuring information regarding past recoveries for clients.
Between May and October 2013, Plaintiffs submitted a series of television advertisements to the
Bar for its evaluation. Tarbett Decl. ¶ 5. The Bar issued opinion letters in which it advised
Plaintiffs that some advertisements were in compliance, some were not in compliance, and that
some which were not in compliance could be brought into compliance with appropriate
3
disclaimers. Id. ¶ 5. Critically, the Bar’s notice to Plaintiffs advised that its advertisements
which included statements regarding past performance or results complied with the revised
Rules, including the general rule against “false and misleading” attorney advertising. See ECF
No. [31-4] at 7-9 (“May 2013 Letter”).
In early 2014, the Bar’s Board of Governors issued new “Guidelines for Advertising Past
Results.” ECF No. [29-3] Exh. 6 (“Guidelines”). The Guidelines were issued “to assist lawyers
in complying with these requirements [the relevant Rules] when advertising past results.” Id.
The Guidelines provide that:
The inclusion of past results in advertising carries a particularly high risk of being
misleading. Such advertising will require the inclusion of more information than
most types of advertising in order to comply with Rules 4-7.13(a)(2) and 47.14(a). Indoor and outdoor display and radio and television media do not lend
themselves to effective communication of such information. Consequently, the
Bar generally will not issue a notice of compliance for advertisements in such
media that include references to past results.
Id. The Guidelines also contain specific restrictions and instructions regarding, for example,
advertising dollar amounts and aggregating past results. Id.
Shortly following issuance of the Guidelines, the Bar notified Plaintiffs that it had
withdrawn its prior approval of multiple advertisements. See ECF No. [31-1] (“Withdrawal
Letter”). The Withdrawal Letter explained that “subsequent to the issuance to you [Plaintiffs] of
the prior opinion, the Florida Bar Board of Governors issued guidelines on interpretation of Rule
4-7.13(b)(2) regarding past results.” Id. at 1. The Bar then stated that:
The Board of Governors has directed staff to withdraw the Florida Bar staff’s
advisory advertising opinion that was previously issued . . . only as to past results.
The remainder of the prior Florida Bar staff advisory advertising opinion remains
in effect. The Florida Bar staff advisory advertising opinion is that the
advertisement(s) do not comply with the new past results guidelines adopted by
The Florida Bar Board of Governors and therefore do not comply with Rule 47.13(b)(2) . . . .
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Id. at 1. The Withdrawal Letter further instructed that “[r]eferences to past results generally may
not be advertised in indoor and outdoor display media (billboards and other signs) or in
television and radio advertisements. You may not include the reference to past results in the
advertisement(s) as they appear in your submission in these media.” Id. at 3. It advised that
“[u]se of an advertisement that does not comply with the lawyer advertising rules past the time
period noted above [of thirty days] may result in disciplinary action,” but explained that “[t]his
letter does not constitute disciplinary action, nor does it mean that the bar has opened an
investigation.” Id. at 4.
Plaintiffs did not undertake any appeals procedures regarding the Bar’s withdrawal of its
compliance opinion. Rather, they initiated this action in March 2014. Plaintiffs have continued
to disseminate the subject advertisements.
In June 2014, the Bar notified Plaintiffs that they were alleged to have violated the Rules
regarding attorney advertisement, and that the matter had been referred to Bar counsel “to initiate
disciplinary proceedings.” ECF No. [29-3] Exh. 8 (“June 2014 Letter”). The Bar’s June 2014
Letter specified the same advertisement language identified in the Withdrawal Letter, and paired
it with violation of the Rules’ regulation of statements regarding past results. Id. Less than an
hour before filing the instant Motion, the Bar notified Plaintiffs via email that it had “closed” the
“case file” in the pending disciplinary case against them.1
Sometime after both the adoption of the revised Rules and the Bar’s issuance of the
Guidelines – exactly when is not clear from the record – the Bar “engaged the services of Frank
N. Magid Associates, Inc. to conduct a consumer research survey to determine whether attorney
advertisements containing references to recoveries for clients in large dollar amounts are
1
Plaintiffs state this fact several times in its Response; the Bar has not responded. Those facts not
controverted or opposed by the Bar are deemed admitted to the extent the Court finds them supported by evidence in
the record. See S.D. Fla. L. R. Civ. P. 56-1(b).
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misleading to the average consumer and, if so, how effectively the misleading nature of the
advertisements can be mitigated by the use of disclaimers.” ECF No. [32-1] (“Second Tarbett
Decl.”) ¶ 3. The Bar has made a policy decision – again, it is unclear when – to decline to issue
safe harbor opinions regarding past results involving dollar recoveries. Id. ¶ 4. In addition, the
Bar’s Lawyer Regulation Department has not itself “submitted a complaint to a Bar grievance
committee because a lawyer advertised past results on a particular form of media, including
television or billboards, or for advertising recoveries in gross rather than net amounts.” Berry
Decl. ¶ 5.
II.
PROCEDURAL POSTURE
In the instant Motion, the Bar challenges the Court’s jurisdiction over this case on
grounds of standing and ripeness, two related “strands of the justiciability doctrine . . . that go to
the heart of the Article III case or controversy requirement.” Harrell v. The Florida Bar, 608
F.3d 1241, 1247 (11th Cir. 2010). White the Bar has styled its Motion as one for summary
judgment, justiciability is better understood as pertaining to the Court’s subject matter
jurisdiction. See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (holding
that a court lacks subject matter jurisdiction to hear a case if the “case or controversy”
requirements of Article III are not satisfied); Physicians Multispecialty Grp. v. Health Care Plan
of Horton Homes, Inc., 371 F.3d 1291, 1293 (11th Cir. 2004) (contrasting statutory standing with
“the subject-matter-jurisdictional doctrine of justiciability which considers injury, traceability to
the defendant, and redressability”) (citing Northeastern Fla. Chapter of Associated Gen.
Contractors v. City of Jacksonville, 508 U.S. 656, 663-64 (1993) (discussing standing
justiciability as a jurisdictional issue)); TranSouth Fin. Corp. of Florida v. Johnson, 931 F.2d
1505, 1506 n.2, 1510 (11th Cir. 1991) (treating “case or controversy” justiciability issue as
subject matter-jurisdictional); Cox v. City of Dallas, Tex., 256 F.3d 281, 303 (5th Cir. 2001)
6
(holding that standing, as an issue of justiciability, “is a jurisdictional doctrine that . . . must be
decided before the merits of a case”); see also Spectrum Stores, Inc. v. Citgo Petroleum Corp.,
632 F.3d 938, 948 (5th Cir. 2011) (“[T]he concept of justiciability, as embodied in the political
question doctrine, expresses the jurisdictional limitations imposed upon federal courts by the
‘case or controversy’ requirement of Article III.”) (citations omitted).
Justiciability, like subject-matter jurisdiction “is more appropriately addressed in a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1).” See Aqua Log, Inc. v.
Lost & Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d 1055, 1058 (11th Cir. 2013); United
States v. Blue Cross & Blue Shield of Alabama, Inc., 156 F.3d 1098, 1101 (11th Cir. 1998)
(following district court in treating motion for summary judgment as motion to dismiss); Nat’l
Parks Conservation Ass’n v. U.S. Dep’t of Interior, 2014 WL 4724876, at *3 n.8 (M.D. Fla.
Sept. 19, 2014) (considering ripeness challenge, explained that “subject matter jurisdiction is not
a decision on the merits, and is resolved as a motion to dismiss, not summary judgment”). The
Court will therefore consider the Bar’s motion as one for dismissal under Rule 12(b)(1).
Because at issue in a 12(b)(1) motion “is the trial court’s jurisdiction – its very power to
hear the case – no presumptive truthfulness attaches to [the] plaintiff’s allegations, and the
existence of disputed material facts will not preclude the trial court from evaluating for itself the
merits of the jurisdictional issue.” Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir.
2003). The Court’s evaluation of the Bar’s Motion as one for dismissal and not summary
judgment thus affects the sufficiency but not the scope of the evidence considered.
See
Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 n.6 (11th Cir. 2001) (“[T]he district
court properly went beyond the pleadings in order to determine whether it lacked subject matter
jurisdiction, regardless of the label we put on the procedure.”); Bischoff v. Osceola Cnty., Fla.,
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222 F.3d 874, 878 (11th Cir. 2000) (stating that when a court evaluates a summary judgment
motion asserting a lack of standing, facts set forth by the plaintiff will be “taken to be true” with
“disputed facts [] construed in the light most favorable to plaintiff”); Carmichael v. Kellogg,
Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (“where a defendant raises a
factual attack on subject matter jurisdiction, the district court may consider extrinsic evidence
such as deposition testimony and affidavits”); Turcios v. Delicias Hispanas Corp., 275 Fed.
App’x 879, 880 (11th Cir. 2008) (when considering factual attack on subject matter jurisdiction
under Rule 12(b)(1) “the district court is free to independently weigh facts, and may proceed as it
never could under Rule 12(b)(6) or Fed. R. Civ. P. 56”) (quoting Morrison, 323 F.3d at 925 and
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
Because standing and ripeness are jurisdictional inquiries, Plaintiffs, as the party
invoking federal jurisdiction, bear the burden of establishing that that they have standing to sue
and that this case is ripe for review. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992) (“The party invoking federal jurisdiction bears the burden of establishing these
elements.”); Am. Civil Liberties Union of Florida, Inc. v. Dixie Cnty., Fla., 690 F.3d 1244, 1247
(11th Cir. 2012) (“Standing is a jurisdictional inquiry, and a party invoking federal jurisdiction
bears the burden of establishing that he has standing to sue.”).
III. ANALYSIS
The Bar challenges the justiciability of Plaintiffs’ First Amendment claim both as to
standing and ripeness. The Court will address each issue in turn.
A.
Plaintiffs Have Standing to Sue
“Standing for Article III purposes requires a plaintiff to provide evidence of an injury in
fact, causation and redressibility.” Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir.
2010) (citing Lujan, 504 U.S. at 560-61); see also Kelly v. Harris, 331 F.3d 817, 819-20 (11th
8
Cir. 2003) (“To have standing, a plaintiff must show (1) he has suffered an injury in fact that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to conduct of the defendant; and (3) it is likely, not just merely
speculative, that the injury will be redressed by a favorable decision.”). Plaintiffs meet all three
prongs required for Article III standing.
1.
Plaintiffs Have Suffered an Injury In Fact
Under controlling case law, the injury-in-fact requirement is applied “most loosely where
First Amendment rights are involved, lest free speech be chilled even before the law or
regulation is enforced.” Harrell, 608 F.3d at 1254 (citing Hallandale Prof’l Fire Fighters Local
2238 v. City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991) (“The injury requirement is most
loosely applied—particularly in terms of how directly the injury must result from the challenged
governmental action—where first amendment rights are involved, because of the fear that free
speech will be chilled even before the law, regulation, or policy is enforced.”)). Thus, the
justiciability of a First Amendment claim does not require the plaintiff to already have been
subjected to prosecution; rather, the plaintiff must show that “(1) he was threatened with
prosecution; (2) prosecution is likely; or (3) there is a credible threat of prosecution.” ACLU v.
The Florida Bar, 999 F.2d 1486, 1492 (11th Cir. 1993). A First Amendment plaintiff therefore
“has standing if he demonstrates a realistic danger of sustaining direct injury as a result of the
statute’s operation or enforcement.” Jacobs v. The Florida Bar, 50 F.3d 901, 904 (11th Cir.
1995) (quoting Graham v. Butterworth, 5 F.3d 496, 499 (11th Cir. 1993)). The “credible threat
of prosecution” standard sets a “low threshold,” requiring the plaintiff only to show that the
“probability that the challenged provisions . . . will be enforced” is more than “chimerical”,
“imaginary or speculative.” Int’l Soc. for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d
9
809, 821 (5th Cir. 1979). As the Eleventh Circuit most recently explained, to show a credible
threat of prosecution a plaintiff need only demonstrate “first, that he seriously wishes to engage
in expression that is ‘at least arguably forbidden by the pertinent law;’ and second, that there is at
least some minimal probability that the challenged rules will be enforced if violated.” Harrell,
608 F.3d at 1254 (citing Hallandale, 922 F.2d at 762 and Eaves, 601 F.2d at 818 n. 6).
The Bar argues that Plaintiffs have not established a credible threat of prosecution. First,
it notes, the Ethics and Advertising Department – the Bar’s subdivision responsible for review of
attorney advertisements and issuance of advertising opinions – has no disciplinary authority.
That authority is housed in the Bar’s Lawyer Regulation Department. Second, it maintains that
the Withdrawal Letter did not itself threaten disciplinary action, but rather advised that noncompliance “with the lawyer advertising rules . . . may result in disciplinary action” and
explicated that “[t]his letter does not constitute disciplinary action, nor does it mean that the bar
has opened an investigation” (emphasis added). The Bar stresses that, in any event, noncompliance letters are inadmissible against an attorney in a disciplinary proceeding. Third, the
Bar emphasizes that the Guidelines do not prohibit attorney advertising of past results or
represent the Bar’s authoritative position on whether such advertising would subject an attorney
to discipline, but merely provides advice to lawyers seeking to comply with the Rules. A proper
consideration of the facts here does not support the Bar’s arguments.
The Guidelines in and of themselves substantiate a credible threat of prosecution against
Plaintiffs for violation of the Rules. The Guidelines do state their purpose to assist lawyers in
complying with the Rules regarding advertising past results. But they also represent the Bar’s
own interpretation of its Rules regarding attorney advertisement of past results. The Bar may
have to convince itself that clear and convincing evidence of deceptive or misleading
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information in an attorney’s advertisement exists before commencing disciplinary proceedings in
an individual case. However, it is reasonable to expect the Bar to adhere to its own instruction in
the Guidelines that billboard and television advertising which reference past results cannot,
inherently, comply with the Rules. In other words, the Guidelines establish that such speech is at
least arguably forbidden. Since Plaintiffs are engaging in such speech, they face a credible threat
of prosecution in the form of disciplinary investigation and sanction.
The very actions taken by the Bar against Plaintiffs reify the Court’s conclusion. The
Withdrawal Letter states that Plaintiffs’ “advertisement(s) do not comply with the new past
results guidelines adopted by The Florida Bar Board of Governors and therefore do not comply
with Rule 4-7.13(b)(2)” (emphasis added). The Bar thus interpreted the Rules in accordance
with the Guidelines to determine that Plaintiffs speech was non-compliant.
In fact, the
Withdrawal Letter stresses that its revised opinion as to Plaintiffs’ advertisements results from
the newly issued Guidelines. The Bar’s departmental structure – i.e., that the Withdrawal Letter
was issued by a Bar attorney with the Ethics and Advertising Department – does not alter the
injury in fact analysis. The Guidelines were issued by the Bar’s Board of Governors, which has
exclusive authority to formulate and adopt matters of policy and is the reviewing and controlling
entity for both the Ethics and Advertising and Lawyer Regulation Departments. It is thus
reasonable to conclude that the Bar’s disciplinary arm will, like its Advertising Department,
interpret the Rules in conformity with the Guidelines.
In fact, the Bar did exactly that in the June 2014 Letter. There, the Bar notified Plaintiffs
that they were alleged to have violated the Rules regarding attorney advertisement – specifying
the same advertisement language identified in the Withdrawal Letter, and pairing that language
with violation of the Rules regarding advertising past results. The Letter stated that the matter
11
had been referred to Bar counsel “to initiate disciplinary proceedings.” The June 2014 Letter
concretely establishes that the Bar’s Lawyer Regulation Department has applied, and in all
likelihood will continue to apply, the Rules as interpreted by the Guidelines to prohibit attorney
advertisement of past results as practiced by Plaintiffs, and engage in disciplinary action to
enforce that prohibition. To understate, there is at least a minimal probability that the Rules will
be enforced against Plaintiffs with respect to their past results advertisements.
Even if the Guidelines, standing alone, did not make credible Plaintiffs’ threatened
prosecution, the Withdrawal Letter and June disciplinary action both establish an injury in fact
sufficient to provide Plaintiffs standing.
The Withdrawal Letter does disclaim that it alone “does not constitute disciplinary action
[or] that the bar has opened an investigation.”
And it provides only that “[u]se of an
advertisement that does not comply with the lawyer advertising rules . . . may result in
disciplinary action.” But the Letter itself instructed that Plaintiffs’ advertisements do not comply
with the Rules: “[T]he advertisement(s) do not comply with the new past results guidelines
adopted by The Florida Bar Board of Governors and therefore do not comply with Rule 47.13(b)(2);” “You may not include the reference to past results in the advertisement(s) as they
appear in your submission in these media.” Both statements must be considered together. The
Letter states that Plaintiffs’ advertisements fail to comply with the Rules, and that noncompliance may result in disciplinary action. That instruction, standing alone, is sufficient to
support a credible threat of enforcement.
Furthermore, the Rules themselves state that that “[a] lawyer will be subject to discipline
as provided in these rules for . . . dissemination of a noncompliant advertisement in the absence
of a finding of compliance by The Florida Bar.” Rule 4-7.19(f)(2). On their face, the Rules
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appear to mandate disciplinary action for use of advertisement not found by the Bar to be Rulecompliant. The Withdrawal Letter invalidated the Bar’s previous finding of compliance as to
Plaintiffs’ advertisements, and further characterized them as noncompliant. It therefore created a
credible threat of prosecution under Rule 4-7.19(f)(2).
At the very least, the Bar’s actual initiation of enforcement proceedings in June 2014
establishes a reasonable basis for Plaintiffs to anticipate prosecution. As explained above, the
June 2014 Letter indicated that Plaintiffs’ use of past results in their television advertisements
was prohibited by the same Rules, and for the same reasons, as directed in the Guidelines. In
other words, actual disciplinary prosecution of Plaintiffs by the Bar was driven by enforcement
of the Rules as interpreted by the Guidelines to prohibit advertisement of past results in indoor,
outdoor and televised media. The Bar’s last minute tactic to close the disciplinary case against
Plaintiffs does not undermine Plaintiffs’ standing. As the Eleventh Circuit explained, a sudden
reversal of course by the Bar, in the midst of litigation and without supporting reasoning or
change in policy, gives no assurance “that the challenged conduct has permanently ceased” and,
on the contrary, “raise[s] a substantial possibility that the defendant has . . . changed course
simply to deprive the court of jurisdiction.” Harrell, 608 F.3d at 1267.
Plaintiffs have clearly demonstrated a very real threat of prosecution for engaging in their
advertisement of past results.
2.
Plaintiffs Have Established Causation and Redressability
The Bar has not raised the issue of causation for standing purposes, and only obliquely
challenged the Court’s ability to redress Plaintiffs’ injury by a favorable decision. In any event,
the facts here establish both causation and redressability.
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In the context of standing, causation requires “a causal connection between the injury and
conduct complained of,” Elend v. Basham, 471 F.3d 1199, 1206 (11th Cir. 2006), and the injury
must be “fairly traceable to the challenged action” and not the result of the “independent action
of some third party not before the court.” Bischoff, 222 F.3d at 883. Here, Plaintiffs’ injury –
enforcement of the Guidelines’ reading of the Rules to prohibit their commercial speech and
impose sanctions on Plaintiffs for noncompliance with the Rules – is directly caused by the Bar.
The causation element is satisfied.
“Redressability is established when a favorable decision would amount to a significant
increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury
suffered.” Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1290 (11th Cir. 2010) (citations
omitted); see also Utah v. Evans, 536 U.S. 452, 464 (2002). The Bar has suggested that the
ultimate relief sought by Plaintiffs – enjoining the Bar from enforcing the Guidelines – would
serve no purpose because the Guidelines are not enforceable to begin with. Again, the Bar
stresses that its advertising opinions are not self-activating and that the Guidelines are advisory
and do not themselves establish rules permitting or prohibiting any attorney conduct. The Bar
construes too narrowly both the Guidelines’ function and the Court’s power to redress Plaintiffs’
complained-of injury. As the discussion above indicates, Plaintiffs’ requested relief is best
understood as an injunction preventing the Bar from enforcing the Rules regarding attorney
advertisement as articulated in the Guidelines. Plaintiffs are justified in concluding that the Bar
has and will enforce the Rules per the Guidelines to prohibit attorney advertising referencing past
results in outdoor, indoor and television media, such as the advertisements disseminated by
Plaintiffs. It is likely that if that expression of the Rules is held unconstitutional, Plaintiffs will
be allowed to run many or not all of their advertisements at issue without risking disciplinary
14
action. See Harrell, 608 F.3d at 1260 n.7 (rejecting requirement that attorney demonstrate
compliance of proposed advertisements with all other relevant rules, held that attorney’s claim
was redressable because “it is likely that if the challenged rules are held unconstitutional,
[attorney] will be allowed to run many or all of the advertising campaigns he has outlined in his
affidavit”). Plaintiffs’ injury may, therefore, be redressed by available judicial relief.
B.
Plaintiffs’ Case Is Ripe For Review
“Generally, ‘a claim is not ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at all.” Nat’l Parks Conservation,
2014 WL 4724876 at *3 (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). “The
ripeness doctrine protects federal courts from engaging in speculation or wasting their resources
through the review of potential or abstract disputes.” Digital Props., Inc. v. City of Plantation,
121 F.3d 586, 589 (11th Cir. 1997). The ripeness inquiry, therefore, addresses the “timing of the
suit.” Elend, 471 F.3d at 1205 (explaining distinction between standing, which goes to identity
of parties, and ripeness, which goes to timing).
“To determine whether a claim is ripe, [a court must] assess both the fitness of the issues
for judicial decision and the hardship to the parties of withholding judicial review.” Harrell, 608
F.3d at 1258 (emphasis in original) (citing Coal. for the Abolition of Marijuana Prohibition v.
City of Atlanta, 219 F.3d 1301, 1315 (11th Cir. 2000)). The fitness prong is typically concerned
with “questions of finality, definiteness, and the extent to which resolution of the challenge
depends upon facts that may not yet be sufficiently developed.” Mulhall, 618 F.3d at 1291.
“The hardship prong asks about the costs to the complaining party of delaying review until
conditions for deciding the controversy are ideal.” Harrell, 608 F.3d at 1258.
15
As with standing, “the doctrine of ripeness is more loosely applied in the First
Amendment context.” Cheffer v. Reno, 55 F.3d 1517, 1523 n.12 (11th Cir. 1995); see also
Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227-28 (11th Cir. 2006) (“Because this case
involves an alleged violation of the First Amendment, our review of this suit’s ripeness is at its
most permissive.”); Harrell, 608 F.3d at 1258 (“[W]e apply the [ripeness] doctrine most
permissively in the First Amendment context.”); Hallandale, 922 F.3d at 762 n.5 (“The broader
the First Amendment right and, therefore the more likely it is that a governmental act will
impinge on the [F]irst [A]mendment, the more likely it is that the courts will find a justiciable
case when confronted with a challenge to the governmental act.”).
1.
Plaintiffs’ Claim Does Not Raise Fitness Concerns
In addressing the question of fitness for judicial review, a First Amendment plaintiff may
be required to “seek determinations with varying degrees of finality from agencies whose rules
or decisions they seek to challenge on an as-applied basis.” Harrell, 608 F.3d at 1261-62; see
also Nat’l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (“One of the basic
rationales for the ripeness doctrine is to protect the administrative agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a concrete
way by the challenging parties.”) (citations omitted); Digital Props., Inc. v. City of Plantation,
121 F.3d 586, 590 (11th Cir. 1997) (“Without the presentation of a binding conclusive
administrative decision, no tangible controversy exists and, thus, we have no authority to act.”).
This requirement “is not a form of administrative exhaustion, but rather a requirement that ‘an
administrative action must be final before it is judicially reviewable.’” Harrell, 608 F.3d at 1262
(quoting Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1574 n. 8 (11th Cir. 1989)).
16
The Eleventh Circuit has “recognized an exception to this requirement in cases where
there is nothing to be gained from an agency’s interpretation of a rule because the rule’s
application is clear on its face.” Harrell, 608 F.3d at 1262; see also Pittman v. Cole, 267 F.3d
1269, 1278-79 (11th Cir. 2001) (holding that plaintiffs’ claims were not fit for adjudication
where the agency’s complained-of policy was articulated only by the informal opinion of its
general counsel and not by any official position, raising fundamental factual questions regarding
the agency’s actual position). Thus, in Jacobs, the Eleventh Circuit rejected a ripeness challenge
to an attorney’s First Amendment claim against the Florida Bar because application of the
complained of rule – a blanket prohibition – was certain. See Jacobs, 50 F.3d 906 n.18. By
contrast, in Harrell, the court determined that because the attorney did not avail himself of the
Florida Bar’s administrative procedures, his claims as to the enforcement of several rules raised
serious fitness concerns which rendered those claims nonjusticiable. See Harrell, 608 F.3d at
1262-64.
Here, the Bar’s position with respect to the Rules on attorney advertisement of past
results and to Plaintiffs’ commercial speech in question is sufficiently clear, eliminating any
fitness concerns.2 Plaintiffs admittedly did not pursue the Bar’s internal appellate process after
receiving the Withdrawal Letter. And, the Bar discontinued its disciplinary investigation and
proceedings with respect to Plaintiffs without generating a “final” disciplinary decision. But the
2
The Court need not determine at this time whether Plaintiffs have presented a facial or an as-applied
challenge to the Guidelines and the Rules. Plaintiffs and the Bar both discuss the claim as an as-applied challenge.
However, the Court is “not bound by [Plaintiffs’] designation of [their] claims, and we look to the complaint to
determine what claims, if any, [their] allegations support.” Harrell, 608 F.3d at 1259 (citing Jacobs, 50 F.3d at 905
n.17). Construing Plaintiffs’ claim as a facial challenge to the Guidelines on First Amendment grounds does not
implicate any ripeness concerns: a facial challenge cannot depend on whether Plaintiffs have elicited from the Bar
its definitive interpretation of the Rules or how the Bar has enforced the Rules against Plaintiffs. By contrast, in as
much as Plaintiffs “argue[] through [their] First Amendment claim that the rules affirmatively prohibit certain
conduct . . . it is very important to know whether the rules really do prohibit the desired conduct. Thus, this type of
as-applied challenge is most likely to be ripe if the rules clearly apply on their face, or if the enforcing authority –
here, the Bar – has told us that they apply.” Harrell, 608 F.3d at 1264 n.8. As discussed, infra, Plaintiffs’ claim is
fit for review as an an-applied challenge for those very reasons.
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straightforward language in the Guidelines as to attorney advertisement of past results, coupled
with the Bar’s enforcement of the Rules against Plaintiffs in direct accordance with the
Guidelines, renders the Bar’s interpretation and implementation of the Rules abundantly clear.
That is, because the Bar interprets the Rules in accordance with the Guidelines, the Rules are
clear on their face; and the Bar has spoken to the issue by actually enforcing the Rules, pursuant
to the Guidelines, against Plaintiffs. Unlike the circumstances in Pittman, the Guidelines are not
merely advisory – they fairly represent the Bar’s official interpretation of the Rules. That the
Bar has interpreted the Rules in line with the Guidelines to withdraw its compliance opinion
from Plaintiffs’ advertisements and initiate disciplinary proceedings against Plaintiffs reinforces
that determination. In Harrell, the attorney had not received any communication or instruction
from the bar regarding its application of the rules in question. Here, in contrast, Plaintiffs
received both the Withdrawal Letter and the June 2014 Letter – both of which clearly
demonstrate the Bar’s position that it interprets the Rules as articulated in the Guidelines.
The fact that the Bar has recently commissioned a study on whether advertisements
containing certain past results information (specifically, dollar amounts recovered) misleads
consumers does not alter the fitness of Plaintiffs’ claims for judicial review. Nor does the Bar’s
declaration that its Lawyer Regulation Department has not (since adoption of the new Rules)
itself submitted an attorney grievance complaint targeting the use of past performance in
advertising. The Bar has not rescinded the Guidelines. It has not expressed an official shift in
policy away from the Guidelines. The Bar’s reading of the Rules are clear from the face of the
Guidelines and from how that interpretation has been put into practice against Plaintiffs, as
evidenced by the Withdrawal Letter and June 2014 Letter. The Bar’s insistence that its Lawyer
Regulation Department has not submitted a complaint regarding attorneys advertising past
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results is misleading and belied by the very disciplinary actions taken by the Bar against
Plaintiffs here. The Bar initiated disciplinary proceedings against Plaintiffs in June 2014 for
violating the Rules regarding advertising past results on the basis of an anonymous complaint by
“concerned bar members.” See June 2014 Letter at 7. Submission of a complaint by the Lawyer
Regulation Department was and is not necessary. The Bar undertook to enforce the Rules –
against Plaintiffs themselves – as interpreted by the Guidelines.
The Rules as issue, and the Bar’s interpretation and enforcement of them, are sufficiently
clear. Nothing will be gained from forcing Plaintiffs to submit to the Bar’s appeals process and
to subject themselves to continued or renewed disciplinary action. Plaintiffs claim is ripe for
adjudication.
2.
Hardship Is Not A Factor Here
“[I]f a dispute otherwise qualifies as fit for review, any lack of hardship is irrelevant.”
Eternal Word Television Network, Inc. v. Sebelius, 935 F. Supp. 2d 1196, 1224 (N.D. Ala. 2013);
see also Harrell, 608 F.3d at 1259 (“[T]he ‘hardship’ prong is not an independent requirement
divorced from the consideration of the institutional interests of the court and agency.”) (citations
omitted); Mulhall, 618 F.3d at 1293 (“[W]here there are no significant agency or judicial
interests militating in favor of delay, lack of ‘hardship’ cannot tip the balance against judicial
review.”) (citations omitted). Because there are no fitness issues, or agency or judicial interests,
mitigating in favor of delaying consideration of Plaintiffs’ claim, the Court need not consider the
hardship to the parties in withholding judicial review.
Plaintiffs do note the difficult position in which they would be placed should the Court
decline to consider their claim at this time. First, they assert that they would be forced to
withdraw their advertisements, at significant cost. Second, they explain that were they to appeal
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the Withdrawal Letter or wait for the Bar to reinitiate an enforcement action against them, the
Bar would likely argue that the federal courts must abstain from considering their First
Amendment claim in favor of the ongoing state process. See ECF No. [38] (Pls. Reply to Defs.
Mtn. for Summ. J.) at 5 (citing Middlesex Cnty. Ethics Comm. V. Garden State Bar Ass’n, 457
U.S. 423, 436-37 (1982)). Both of these represent the type of practical hardship that is relevant
to the ripeness inquiry. See Harrell, 608 F.3d at 1264 n. 10 (noting that the time and expense of
appealing a bar decision and creating new advertisement could constitute hardship); Pittman, 267
F.3d at 1281 (considering “hardship in the ‘practical’ sense or hardship resulting from being
forced to modify behavior”).
IV. CONCLUSION
For the foregoing reasons, the Court rejects the Bar’s standing and ripeness challenges to
Plaintiffs’ First Amendment claim. Plaintiffs’ claim is justiciable, and the Court will consider
Plaintiffs’ pending motion for summary judgment in due course.
Accordingly, it is hereby ORDERED and ADJUDGED that the Bar’s Motion for
Summary Judgment, ECF No. [30], is DENIED.
DONE and ORDERED in Fort Lauderdale, Florida, this 20th day of November, 2014.
____________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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