Public Citizen, Inc. et al v. Louisiana Attorney Disciplinary Board et al

Filing 103

APPEAL TRANSCRIPT of Motion Hearing held on July 29, 2009 before Judge Martin L.C. Feldman. Court Reporter/Recorder Toni Tusa, Telephone number [phone]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 21 days from the filing of this transcript to file with the Court a Redaction Request. Release of Transcript Restriction set for 2/15/2010. (Reference: BOTH CASES)(clu, )

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES:

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

* * versus * * LOUISIANA ATTORNEY * DISCIPLINARY BOARD, et al * ****************

PUBLIC CITIZEN, INC., et al

Docket 08-CV-4451-F New Orleans, Louisiana July 29, 2009

ORAL ARGUMENT BEFORE THE HONORABLE MARTIN L.C. FELDMAN UNITED STATES DISTRICT JUDGE

For Public Citizen, Inc., Morris Bart, and William N. Gee III:

Public Citizen Litigation Group BY: GREGORY A. BECK, ESQ. 1600 20th Street NW Washington, DC 20009 Sher Garner Cahill Richter Klein & Hilbert, LLC BY: JAMES M. GARNER, ESQ. JOSHUA S. FORCE, ESQ. CHRISTOPHER CHOCHELES, ESQ. 909 Poydras Street, 28th Floor New Orleans, Louisiana 70112 The Wolfe Law Offices, LLC BY: SCOTT G. WOLFE JR., ESQ. ERNEST E. SVENSON, ESQ. 4821 Prytania Street New Orleans, Louisiana 70115

For Morris Bart, LLC and Morris Bart:

For Scott G. Wolfe Jr. and Wolfe Law Group, LLC:

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APPEARANCES: For Louisiana Attorney Disciplinary Board, Charles B. Plattsmier, and Billy R. Pesnell: Stone Pigman Walther Wittmann, LLC BY: PHILIP A. WITTMANN, ESQ. KATHRYN M. KNIGHT, ESQ. MATTHEW S. ALMON, ESQ. 546 Carondelet Street New Orleans, Louisiana 70130 Toni Doyle Tusa, CCR, FCRR 500 Poydras Street, Room HB-406 New Orleans, Louisiana 70130 [phone]

Official Court Reporter:

Proceedings recorded by mechanical stenography, transcript produced by computer.

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PROCEEDINGS (July 29, 2009) THE DEPUTY CLERK: All rise.

Be seated, please. THE COURT: Good morning. Call the case, please.

THE DEPUTY CLERK:

Civil Action 08-4451,

Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board, et al.
THE COURT: Appearances, Counsel. Good morning, Your Honor. Phil

MR. WITTMANN:

Wittmann, Kathryn Knight, and Matt Almon here on behalf of defendants Louisiana Attorney Disciplinary Board, Mr. Plattsmier, and the chairman of the committee. MR. GARNER: James Garner, Joshua Force, and Chris

Chocheles for Morris Bart, LLC and Morris Bart personally. THE COURT: MR. BECK: Welcome all. I'm Greg Beck, Your Honor. I'm

representing Public Citizen, Morris Bart, and William Gee. MR. WOLFE: Your Honor, Scott Wolfe Jr. and Ernest

Svenson representing Scott Wolfe Jr. and Wolfe Law Group. THE COURT: MR. WOLFE: THE COURT: You're the Internet people. Yes. You may leave; either that or be prepared You have a judge who

to say things in very, very simple terms.

studied English literature, anthropology, and Spanish, so

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assume I don't even know what an "on" button is. said that once to some patent lawyers. seriously. Mr. Garner. MR. GARNER:

All right?

I

They didn't take me

Mr. Beck is going to go first, I'm going to go second, 20 minutes. If Steve so designates,

Your Honor, 25 minutes.

Mr. Wolfe will go third at 15 minutes. I will keep the time. MR. WITTMANN:

I would just rise to point out,

Your Honor, we have a motion to dismiss that I think should go first before any of theirs go. THE COURT: MR. GARNER: Mr. Garner. It really wraps up into two issues. I

don't know why we can't deal with it all at once. THE COURT: I can multitask, Mr. Wittmann. I know that.

MR. WITTMANN: THE COURT:

Wearing a bow tie reminds me of a case I

once had when I was practicing and I had a case before Judge Roberts in Civil District Court. We were walking to

court and my partner asked me why I was wearing a bow tie to court because he had never seen me wear a bow tie in court before. Judge Roberts came in and opened court wearing a bow Unfortunately, I'm not wearing a bow tie

tie, and I won. today.

MR. GARNER:

That doesn't bode well.

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THE COURT: out of the way.

I think we should get some preliminaries

Why don't we assume for the sake of this

morning that there is standing -- and I presume that ends your argument right now -- and that the state does have a substantial interest in trying to regulate lawyer advertising. I'm really more interested in the rules themselves. MR. BECK: I'm happy to talk about that, Your Honor,

and specifically how the rules are tailored to fit the interest that is supposed to be served here, which I think is the most important question. THE COURT: Give me an example of how the proposed Let's take a specific

rules would inhibit a current lawyer ad. ad. You must have something in mind.

Tell me how these

proposed rules would inhibit that particular ad. MR. BECK: Well, we actually brought some examples There's two kinds of restrictions that

that might be helpful.

are at issue now because there used to be only blanket restrictions, but now there are some blanket restrictions and some disclosure disclaimer requirements. speech, we think, but in different ways. They both inhibit So the prohibitions,

we don't have any examples to show you today, but they include things like past results and -THE COURT: MR. BECK: Sorry? Statements about past results in a case,

for example, verdict awards in particular cases.

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THE COURT: MR. BECK:

Oh, past results. Right. There's a number of our clients'

ads, as we set forth in the declarations, that contain that information that would be prohibited under the rules. So a

statement from, for example, a former client saying that they recovered this amount of money would appear in both of my clients' ads. THE COURT: You disagree with the LSBA finding that

that could suggest, without regard to the facts of a particular case, that the result might be the same? MR. BECK: Well, the argument, I guess, that they are We have put

asserting is that it's inherently misleading.

forth some examples in our brief of cases where past results are used on the websites of law firms and others where it's pretty patently not misleading. You can look at those. It's

not apparent why anyone would be misled. So I think what they are really arguing here is not that there's an inherently misleading nature to these kinds of ads but that they are potentially misleading. In some cases

they are going to be misleading; in many cases they won't, perhaps most cases they won't. Although it's now called

inherently misleading, that's really the argument that's being made here as to a potentially misleading form of advertising. In fact, the Louisiana Supreme Court, when it put out a second press release actually announcing the change

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in effective date of the rules, it said straight-out that the rules were geared towards potentially misleading advertising. The Supreme Court said again and again -- because states keep raising this argument again and again -- that potentially misleading is not good enough because, after all, every kind of communication is potentially misleading. You can always find a

way to mislead someone using an image like in Zauderer, or using a dramatization, or any kind of communication tool can also be misused. So the idea is that the state is supposed to

make that case-by-case effort to find the cases that are actually misleading and not just have the potential to mislead. THE COURT: Is that the test, do you think, under

Bates and Central Hudson, that there must be evidence of actual
misleading? MR. BECK: I think almost always the answer to that I can't say for certain that there In Zauderer, for example, the

would probably be yes. won't be other cases.

Supreme Court did -- and this is the only time this has ever happened -- use the phrase inherently misleading, and this is where this all comes from. It said that when a lawyer

advertised that there were no fees for services but left out the fact that the client would be responsible for costs, because that is sort of a technical/legal profession use of terminology that the average person would not necessarily understand, that it at least justified imposing a disclaimer

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requirement.

So it upheld a disclaimer requirement there

without requiring showing actual evidence. I think that's telling because the defendants are arguing that lawyers are somehow special, that they have to be treated in a different way than other kinds of professions and businesses. I think that that could be true -- because the

Supreme Court has applied Central Hudson to lawyer ads so many times now -- only in those cases where there's something about being a lawyer that makes it difficult for ordinary people to understand what the lawyer is talking about. If a lawyer is using terminology that means something to the public and means something else to lawyers, then you could make the argument that there should be a different rule for lawyers. When you're talking about past

results, that could happen in any industry, and there's no reason to believe people are going to be more misled with lawyers than any other kind of industry. THE COURT: industry? So the profession of law is now an

You have just made a very big error, Counsel, at

least with this Court. MR. BECK: I apologize for that, Your Honor. I

understand that the professions have had a long-standing special status. THE COURT: How do you react to the material that the

bar association apparently put together as a first step toward

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trying to promulgate some sort of rules about lawyer advertising, at least tightening the rules? about the findings of the LSBA? MR. BECK: Well, I think that the finding and How do you comment

recommendation of the LSBA -THE COURT: I will overlook our disagreement that law

is a profession or an industry. MR. BECK: All I can do for that, Your Honor, is

refer you to Bates, where the Supreme Court very realistically looks at what's happening to the legal profession -- and it is still a profession -- but how it has become part of the daily economy, like many other kinds of professions, and part of daily industry for many people. lawyers. THE COURT: LSBA. MR. BECK: So the LSBA has the findings and I know that. Well, let's get to the I don't mean to demean

recommendations, which I think is what you're referring to. THE COURT: Maybe your argument will be persuasive

enough to even get Sher Garner and Stone Pigman to advertise. MR. BECK: Well, you know, Sher Garner and

Stone Pigman do advertise on the World Wide Web, and they will be affected by these rules. THE COURT: over there. Well, I have these guys off to one side

I think you should just treat me as though I'm

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ignorant of everything, but I'm certainly ignorant of the World Wide Web. We'll get to that in a little while. That's fine, Your Honor. Tell me in just a few simple sentences:

MR. BECK: THE COURT:

How do you react to the methodology of the bar association prerules before they suggested the rules to the Louisiana Supreme Court? MR. BECK: It was inconsistent. They set out in the

minutes recognizing that there is a burden, that the First Amendment imposed a burden, and that they better get some evidence. Of course, by that point they had already written So even at

the rules that they wanted to find evidence for.

the very beginning of this evidence accumulation process, it was already post hoc rationalizations for what had already happened. So they set about doing that by looking at a couple things. They looked at a survey that was done in

Florida, and they determined that it had no applicability to the rules here. Then they took comments from the public.

There were some lawyers, of course, who felt strongly that there shouldn't be lawyer advertising. who felt the other way. The Federal Trade Commission submitted a lawyer saying that they thought that the rules would be harmful to consumers and that they would not protect consumers and that, There are also lawyers

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in its role as the agency in charge of interpreting the unfair competition law, that it did not think these rules were a good idea. That was the extent of the record. There were

public hearings, as well, but no evidence was presented at those, and that was the extent of the record at the time that the initial draft of the rules went to the Louisiana Supreme Court and was approved. I would characterize it as having no evidence whatsoever, and that is reflected in the briefing because there hasn't been any evidence from that time period that's been identified. So after the lawsuit is filed is when the evidence

accumulation process really begins because they had put off doing a survey before, now they have to do one, but they have already decided that they need to do a survey that will -THE COURT: together? When was the anecdotal evidence put

Was that after the lawsuit was filed or before? MR. BECK: I wouldn't characterize it as "anecdotal

evidence," but it was before, I think, what you're talking about. bar. You're talking about the comments from members of the

It's not so much anecdotal evidence as lawyers' opinions I read them

about whether the rules are a good idea or not. all.

I didn't see anecdotal evidence, but that's my reading. That was before, so that was the state of the

record when the rules were enacted, and then the lawsuit was

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filed, and then a survey began.

After that survey was

completed, the report and recommendation was written, and this was during a time period when the case had been stayed because the rules had been pushed back until October 1. The thing about the survey, the most striking thing to me is that it didn't ask about most of the rules that were enacted. It doesn't ask anything about past results. It

asks about testimonials, which could be related in some cases but often not, and even then I don't think those questions are really relevant. It asks about scenes only to the extent that It does not ask about slogans or

they are accident scenes.

mottos that imply an ability to achieve results. THE COURT: Are there ads involving slogans -- well, Are there ads

slogans, yes, but mottos and things like that? that do that? MR. BECK: THE COURT:

Well, I think, you know, this -I know in the New York case there were

wispy things of smoke -MR. BECK: THE COURT: Wispy smoke, right. Special effects.

-- and all sorts of theater that

Judge Scullin said was okay. MR. BECK: THE COURT: Well, he did, but -Are there firms here that -- I'm familiar I don't think he does that.

with Mr. Bart's things. MR. BECK:

Well, special effects --

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THE COURT: basketball. try. MR. BECK:

I've often wondered how he shot that

Being a short person, I would never even bother to

Well, they can keep doing retakes until it

THE COURT: MR. BART:

How did you shoot that basketball? Morris Peterson's sister was standing on a

stepladder off the side, so I threw the ball out of frame, and then she took the ball and dunked it. THE COURT: Now, see, that's inherently misleading.

What would the Supreme Court say about that? MR. BART: see her hand. MR. BECK: It's an "incompetently done misleading" Well, Judge, if you look closely, you can

That's also, we would argue, not material to the

selection of a lawyer. In any case, yes, there are all sorts of different lawyer ads that are going on here, but I would note that there's no rule that specifically bans special effects in this jurisdiction. THE COURT: What about the portrayal of judges and

MR. BECK:

I know that there is at least one that's

running in the market now. THE COURT: There were some political ads at one

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time.

Whenever somebody wanted to appear smart and was running I'm not so

for some office, they had a judge in a courtroom. sure that made them look so smart.

Have there been ads out in

which there are portrayals of judges and juries in a scene in a lawyer ad? MR. BECK: There's at least one ad out there that's I would note that -- the defendants

doing that right now.

point this out -- the judicial code of conduct would generally prohibit a judge from being in a commercial for a lawyer for obvious reasons. So if we are going to be talking about a

judge appearing in an advertisement, it's going to be an actor playing a judge or perhaps a retired judge. THE COURT: portrayals. MR. BECK: now, yes. Mike Hingle is the one that we know of That's what I mean. There are

The portrayal is by an actor and, as you know, the

rules prohibit actors in a variety of circumstances -- judges, clients, and lawyers -- but for some reason the rules will allow only the depiction of the client when accompanied by a disclaimer, but will not allow a depiction of the judge without a disclaimer. The report concludes, without explaining why,

that it would be impossible to provide an adequate disclaimer for that. THE COURT: As to the disclaimer, the rules that

focus disclaimer, is it your position that disclaimers are

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inherently or per se constitutionally tainted or that factually, as the rules are written, that the disclaimers present an undue burden? MR. BECK: I think that in every case the state is

going to need some reason to impose a disclaimer, and I think in many cases it will be substantially less of a burden. I

don't think that the state can impose disclaimers for no reason because it is at least some imposition on speech. Now, in this case we have a big imposition on speech. Actually, I'm going to show you. In general, I think

disclaimers are a good idea because, as the Supreme Court says, you get to have more information rather than less, and it achieves the goals of the First Amendment by making sure everyone knows what the truth is. So, in general, I think they are a good idea. But when they are enacted for the purpose of making it difficult to speak, then that's a bad idea. I think that's

what we have here because the rules require that the disclaimer be in a font size that's at least as large as the largest -THE COURT: MR. BECK: THE COURT: In a what size? A font size. What is that? I've already warned you

that I'm a English lit, anthropology, and linguist major. Speak English. What is a font? Typesetting. The letters.

MR. BECK:

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THE COURT:

Thank you.

That wasn't too difficult,

MR. BECK:

You will ink them up and then stamp them

on the page, but it's on the computer screen. THE COURT: MR. BECK: THE COURT: MR. BECK: Okay. So the size of those letters has to be -Don't be afraid to talk down to me. I was half joking. Those letters have to

be at least as big as the largest text size anywhere in the advertisement. So if you have a very big headline -I understand. You measure fonts in point size. If

THE COURT: MR. BECK:

there's a 36-point, you have to have a 36-point. examples.

We have some

In addition to that, there has to be a verbal It has

disclaimer if it's on the television at the same time. to be spoken at a reasonable speed. THE COURT:

It has to be spoken at a reasonable I must have missed that. Is that

Is that in the rule?

in the rule? MR. BECK: Something to that effect. I might have

got the exact language wrong. speed.

It basically says reasonable

(WHEREUPON the video was shown in open court.) THE COURT: MR. BECK: Can you turn it up? I've given you a printed-out copy of the

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screenshot of this as well. THE COURT: MR. BECK: THE COURT:

It should be up there. Try it again.

Hold on one second.

So there's two disclaimers here now. Wait, can you play it again.

(WHEREUPON the video was shown in open court.) MR. BECK: This is a 10-second advertisement. More As

than half is taken up by the reading of the disclaimers.

you can see, about three-quarters of the screen, I would say, is taken up by this. There's two kind of disclaimers here. One is

the requirement that you disclaim a spokesperson, which is new. That's one of the amendments that we are challenging. In the

process of going about addressing our complaint and making those modifications, they changed some of the prohibitions to disclaimers but at the same time adding this rule that all disclaimers under the rules -- not just the ones that were recently enacted but all disclaimers under the rules must be in a font size at least as large as the largest text otherwise in the ad. So now there's a variety of other kinds of disclosures that are required by the rules. You always have to You have

put the name of a responsible attorney, for example. to put the location of a bonafide office address. variety of other ones.

There's a

After a while, when you start adding He has an office in

those in -- the second one was an example.

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Lafayette, Louisiana.

That's a disclaimer that's also now

required to be in gigantic letters. The best case I'm pointing to for this is Ibanez by the Supreme Court.

Ibanez was about a lawyer and CPA, and

she simply wanted to say that she was licensed by this certain organization of financial people. The rule required that if

she did that, she had to use explanations of what that meant. The Court noted that it was simply impossible to add those kinds of explanations in the space of a business card or a letterhead or any of a number of other places where they are required to be. So what you end up having is a substantial

burden on her ability to advertise at the same time the state hadn't shown that it was accomplishing any benefit. I think my microphone has got a lot louder. THE COURT: imposing. That's okay. It makes you seem more

You think Ibanez is factually similar to this case? MR. BECK: I do. The reason is both require some

sort of disclosure of information that's triggered by an inclusion of some other information. That disclosure

requirement was burdensome enough that it made it difficult to communicate the original message. THE COURT: didn't it? MR. BECK: THE COURT: Right. How does that square with what you just It almost eliminated the business card,

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showed me? MR. BECK: Well, we could fit it on that page. We

could fit it on the screen, but it ate up the majority of the message, the space for the message by the lawyer. So the

lawyer, out of ten seconds of advertising time, is only going to have a few seconds of advertising time and a tiny bit of screen space. THE COURT: Basically, what you're saying is a

reasonable person wouldn't know that that was an ad by William Gee III, Attorney-at-Law? MR. BECK: THE COURT: Well, even -Isn't that what Mr. Gee wants to convey

to potential consumers? MR. BECK: I don't think so. That's Robert Vaughn,

The Man from U.N.C.L.E.
is not to be the lawyer. on already.

He is a minor celebrity, but his role In fact, Mr. Gee has that disclaimer It's not in a

He has always run that disclaimer.

gigantic type size so he can continue to do his regular advertising. This is why I say the reasonable fit part of the

Central Hudson test is so important.

Even assuming that it was

misleading in some cases for lawyers to use a spokesperson, that just means that the state should be doing some sort of reasonableness disclaimer instead of making it impossible to advertise all together.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yes. down now. I had for you?

Your Honor, did you get the other printouts that

THE COURT: MR. BECK: THE COURT:

I don't think so. May I approach? Sure. Maybe we could turn the volume

MR. BECK:

The first one there is the screenshot of You can see what That's just because the

the disclaimer that was on the video. proportion of the screen is taken up.

font size of his name there, as in most ads, is relatively large because that is what is going to be the attention grabber. THE COURT: are saying. Let me make sure I understand what you

This is the one you're talking about? I thought we had changed the order, but

MR. BECK:

We'll go to that one first. THE COURT: MR. BECK: Tell me the one you want me to look at. Well, there's one that should be a picture

of Robert Vaughn. THE COURT: Just show it to me. Let's see what you

are talking about and then I will find it. Okay. MR. BECK: Hold on. Yeah. That's this one?

That was just to point out to you

that the proportion of the screen that's taken up here looks like about three-quarters. I didn't measure it, but I'm

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estimating it. The other one that you are looking at is the Web site for Morris Bart. relatively -THE COURT: MR. BECK: THE COURT: That's this one? Yes, that one, yes. This one -Now, the font size on this page is

This is a current ad, one you claim would

be inhibited by the rules or one that you claim is compelled by the rules? MR. BECK: Everything on this ad is current except Otherwise,

that I took it and I added these disclaimers to it. it looks likes it does.

It has a picture of a car crash and it

has this person, and these disclaimers are some of the ones that are required. MR. WITTMANN: This is not an ad. MR. BECK: I going to object to this, Your Honor. There's a difference.

Its a Web site.

I'm willing to agree that it's a Web site,

Your Honor, but I still believe that it's relevant. THE COURT: I'm willing to agree that I don't know

what the difference is. MR. WITTMANN: information by request. to request it. THE COURT: MR. BECK: Oh, I see. My point, Your Honor -Well, one, on a Web site, it's It's not an advertisement. You have

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THE COURT: MR. BECK:

Go ahead.

What's your point?

My point is that is the information --

there is a category of advertising that's called "information delivered upon request" or some such thing, but it doesn't make any exception for depiction of scenes or actors playing clients. So the same rules would apply to the ad if it's on

the Web or anywhere else. THE COURT: Maybe I'm confused. Do the rules deal

with requests for information? MR. BECK: THE COURT: MR. BECK: THE COURT: MR. BECK: Yes. They do? Everything -Except other than on the Internet? Right. So everything, I think, is There is this other category of

considered an advertisement.

semiadvertisement called solicitation, and that's where the lawyer reaches out and communicates actually with the client. Everything else, I think, is considered an advertisement or a subset of advertisement. One kind of advertisement is information provided upon request. THE COURT: MR. BECK: The rules governing that --

Which is what this is? Yes, because the rules specifically say

that a Web site will be considered information delivered upon request. The relevant exception for that kind of ad in this

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case is that information provided upon request is allowed to include information about past results. So you can put on your

Web site that you won $10 million for so-and-so. THE COURT: MR. BECK: THE COURT: MR. BECK: You can? You can. You're allowed to do that.

If it's truthful. If it's truthful. It must always be

truthful, that's true.

I think that's another mark against

these rules, though, because it's not at all clear to me why someone is likely to be misled if they read a verdict in the Yellow Pages but not likely to when they read it on a Web site. It's the exact same kind of information. There's an exception

made here for the Web for some reason, probably because a lot of the large law firms wouldn't want to be regulated in their advertisement. I do believe that is advertising, Your Honor. You can call it what you want. It's considered more civilized

and it's more acceptable by many lawyers, but I do think that Web sites are advertising. I do think going to whatever social In fact,

functions and networking is a form of advertising.

that's in-person solicitation and prohibited by many states, although it's not enforced in that way. These are all ways that lawyers use to get their names out to the public or relevant clients. In some cases,

the lawyers are marketing to a group of people who aren't

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likely to hire them after seeing them on TV. true for many law firms here.

That's doubtless

There are other kinds of lawyers

who are trying to solicit or advertise for clients who are likely to hire lawyers they see on TV because they don't know any other way to reach a lawyer, and that's the kind of lawyer advertisement that's more effective because -- by this past result rule in particular. THE COURT: I will grant you that I'm about to put

what might be an absurd example to you, but it might also implicate the same constitutional issues. What if Mr. Garner

put out an ad saying that he appears regularly in federal court, that he wears bow ties before a judge who also wears bow ties, that he has been very successful in federal court; would that be prohibited or would that be permissible constitutionally? Everything that I just said is true. The question is could you constitutionally

MR. BECK:

create a rule that would prohibit that kind of advertising? THE COURT: No, no. The question is whether these

rules would prohibit that and whether that would be unconstitutional if they did. MR. BECK: I don't think that any of the rules that

we are challenging in this case would have anything to do with that advertisement, but I think that there are existing rules on the books about misleading advertisements, which include advertisements where you suggest an ability to improperly

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influence a judge. be prohibited.

I think that's quite right that that should

Now, you present obviously a tough fact question which would be good for a law school exam. I think you have a

pretty good argument in a case-by-case basis to say that's a misleading advertisement, but then again -THE COURT: MR. BECK: You could? You would say that?

I think maybe, but the point is, though,

Your Honor, that that's a decision that has to be made by disciplinary authorities when they see an ad that's misleading, not when they think that there might someday be an ad that's misleading like that and, therefore, we should prohibit all other ads that are similar. That's the critical difference as

Zauderer sets out. Zauderer makes clear that, yes, it's going to be
more expensive, it's going to be more difficult, it's going to take more resources for a state to go through the ads one by one and only get rid of the misleading ones. That's, as

Zauderer says flat out, the price that the First Amendment
demands, that you cannot just take a category of speech and just totally prohibit it because there might -THE COURT: That's true except the category of speech

that you're seeking to protect is not entitled to the same dignity as other categories of speech. MR. BECK: It's not entitled to the same dignity,

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Your Honor? THE COURT: That's right. Commercial speech is not

held on the same pedestal, when measured against the First Amendment, as other forms of speech. MR. BECK: Somewhat lower. The Supreme Court has

always said, though, it's still very important. THE COURT: MR. BECK: I'm not suggesting it's not. I understand that, but I do think the I think that the

defendants are suggesting that it's not.

level of protection that they think commercial speech gets is something more akin to the level of First Amendment protection that prisoners and school children get where the government, if it thinks it's in the best interest of everybody, can go ahead and restrict that speech at will. I think that, as the

Supreme Court said, advertising is very, very important to the capitalist economy and it's vital to -THE COURT: MR. GARNER: THE COURT: that your time is up. MR. BECK: Yes. Unless there's further questions, Do we still have a capitalist economy? That's an issue for another day. I think Mr. Garner is trying to tell you

Your Honor, I will hand off. THE COURT: Thank you.

Mr. Garner, who is next, you? MR. GARNER: I am, Your Honor. I'm going to pick up

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with your example, except I would suggest we delete the bow tie comment because that actually implicates another rule about influence with a particular judge. I'm going to give a

real-life example, then I'm going to modify yours. If I want to take a full page ad out in

The Times-Picayune and say in this Court, the United States
District Court for the Eastern District of Louisiana, I got bad-faith sanctions against a lawyer, which is true, and it went to the Fifth Circuit and was affirmed and therefore -THE COURT: working. MR. GARNER: Good. It was his case. Under these rules, I If you're trying to pander to me, it's

All that is truthful. could not say that. THE COURT: MR. GARNER:

I got affirmed on every issue. Every issue. Every issue.

These rules could be constitutional if they said past results if not accurate and not misleading, because the state interest is to regulate provably untruthful and provably misleading. THE COURT: MR. GARNER: interest. Right. I know you said assume there is a state We have

I don't think there is a state interest. They're all great platitudes.

platitudes. platitudes.

I agree with the

I'm sure Mr. Wittmann agrees with the platitudes.

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You agree with the platitudes, I know.

Even Justice Scalia

agrees with the platitudes, but he has said -THE COURT: Why is it that every time I'm in court

somebody likes to remind me of my friendship with Justice Scalia? MR. GARNER: First Amendment. THE COURT: MR. GARNER: I'm friendly with Justice Breyer too. He doesn't have as good of quotes. Let's talk about his view of the

In the 44 Liquormart case, which is Rhode Island, in commercial speech regulating the liquor industry, Justice Scalia said, "We have an aversion to a paternalistic regulation of commercial speech that assumes people will make bad decisions." THE COURT: I was waiting for that one to come out. It only took 38

I was wondering how long it would take. minutes. MR. GARNER:

Jim Garner says, "I have gotten I'm not going to suggest a "The Fifth Circuit has That is prohibited by these

sanctions in this Court."

particular judge in this Court.

affirmed it, therefore, hire me."

rules even though there's nothing inaccurate in what I said. The argument they make is people are stupid, although I don't think their evidence shows that, and that's been rejected. That was rejected by the Court in Bates. It

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was rejected since then.

Just because people will make a bad

decision -- you know, they hear the moniker "One Call, That's All." ad. By the way, the basketball ad was not actually a legal

It was showing support for the Hornets -THE COURT: MR. GARNER: I know. -- and his prowess with the basketball

with Morris Peterson's sister's help. THE COURT: attorney, however. It just so happens that he is an

That didn't hurt. "One Call, That's All" is arguably

MR. GARNER:

prohibited by these rules. THE COURT: MR. GARNER: might suggest: How is that misleading? It's not. I think their view is that

You make one phone call, and I'm going to solve

all your problems. THE COURT:

Bates said commercial speech that is

false, misleading, or deceptive can be regulated. MR. GARNER: THE COURT: But it has to be provably misleading. Yes. Well, of course. I was at some

point going to ask you to tell me the difference between imply and infer. The struggle I have is: What should the bar That really

association have done that it didn't do? implicates your argument about -MR. GARNER: THE COURT: Past results?

Well, proving misleading, deceptive, or

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false, in which case commercial speech, notwithstanding your colleague's inference, is entitled to less constitutional dignity than other speech. Other than the power of reason, For example, in

what should the bar association have done?

Cahill, in that New York case, the judge said they didn't do
anything, basically. There was hardly any evidence that the What

four people who put out the rules had done anything.

should the bar association have done here that they didn't do? MR. GARNER: that question. Let's see where we came from to answer

This started with a legislator going into the Then somebody

house in Baton Rouge saying, "Can't do this."

reminded him of Marbury v. Madison and separation of powers, then we come over to Royal Street. potato. They articulated -- and these are in the exhibits, Exhibit 1 -- "We want to regulate. We have become We have this political hot

undignified, and it poses a threat to the way attorneys are perceived in this state." That's the starting statement, Exhibit 1. "The

manner in which some members of the Louisiana state bar are advertising their services in this state has become undignified and poses a threat to the way attorneys are perceived in this state." That's not good enough. "Look, we have a problem. They should have said,

We have done real research that has

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analyzed whether it's Mr. Garner saying he has got sanctions or Mr. Bart saying, 'One Call, That's All,' and the people he is advertising to are being misled. Here's the concrete evidence,

so this is why we need to change the rules." THE COURT: I think it would be impossible to say

that "One Call, That's All" is misleading. MR. GARNER: violate the rules. They won't agree that that doesn't

My point is, rather than starting from

platitudes, enacting a bunch of rules we don't really need because they can -- without these rules, they can regulate misleading speech or untruthful speech. that. What can they do? Enforce the rules they have. These rules go beyond

As Mr. Plattsmier said, they haven't even had an issue in enforcing the rules they have. It's probably not relevant to

the constitutional issue, but this is a political thing. People wanted to come out and say, "We don't like 'One Call, That's All.'" What do I think the bar association should do? Go find a real problem. Don't start with platitudes and try to Go find a real

deal with political issues in Baton Rouge. problem.

Back it up with real evidence and then state, "This

type of real advertising is misleading, is untruthful, these are the harms, and this is the rule that's going to fix it," rather than starting with this general platitude, coming up

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with a bunch of rules that are very paternalistic and inconsistent, and the Web issue is that. I know Mr. Wittmann says, "That's invitation for information. I'm going to get it." But if Jim Garner says, "I

have gotten sanctions" on my Web site, it's perfectly okay. But if I put it on billboard, I can't do it. That shows the

inconsistency, and that's what I think happens when you start with a platitude with no real evidence, try to satisfy a political cause, and then ex post facto try to prove it with the survey, which was done after litigation. THE COURT: So basically your argument is that there

must be actual evidence of -MR. GARNER: THE COURT: Yes. -- false, misleading, or deceptive. Is it impossible to say that a Does

there have to be a victim?

particular ad is, in and of itself, misleading without evidence of a victim? MR. GARNER: Yes. I say, "I've gotten sanctions. Hire me because I will

They have been affirmed by the court. get you sanctions in every case." misleading.

That's not truthful and it's They can say on the face

You don't need a victim.

you can't do that. THE COURT: MR. GARNER: So don't always need a victim? You don't always need a victim. "One

call, that's all, and I guarantee you will get a million

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dollars if I represent you," you don't need a victim in that. THE COURT: MR. GARNER: these rules. He doesn't say that. He doesn't say that. They don't need

That's really my opinion, as a lawyer, reading

all the constitutional case law. The Supreme Court says provably; provably untruthful, provably misleading. last night. Greg said it, and I read it

The idea that something is potentially misleading

is not good enough, just like protecting the dignity of our great profession is not good enough. I may disagree with that,

but the First Amendment stops you even in commercial speech. THE COURT: Let me ask you this: All right. I understand your argument.

Are there any other cases -- beyond this

case, of course -- other than Cahill, the New York case, involving lawyer advertising? MR. GARNER: THE COURT: MR. GARNER: on four. Anything else, Greg? MR. BECK: rules. MR. GARNER: MR. BECK: I'll end with one. You know all the cases. Currently pending? No. Decided.

Decided on these issues?

Cahill is dead

Probably not right on point as to these

I would say Zauderer is about images, That's all.

which is very similar to dramatization.

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THE COURT: MR. GARNER:

Thank you. A late Irish lawyer once told me in his

Irish brogue -- and you know who I'm talking about -- "James, the road to hell is paved with good intentions." I think here

the road to violating the First Amendment is paved with good intentions. I don't question the motive and intent of the However, they just didn't do

seven justices on Royal Street. it the right way. trial.

Because of that, I don't think we need a

I think given the case law, given Bates, given the

progeny on commercial speech, these rules are facially unconstitutional and we should win today. Your Honor. THE COURT: plaintiffs' side? The Internet people. me something. MR. WOLFE: THE COURT: different. Sure. Good morning. Come speak to me. Teach Thank you very much. Anybody else on the Thank you,

I assume that the Internet stuff is I have to tell you

If I'm wrong, someone tell me.

of my ignorance of technology, so don't use technical terms, please. MR. WOLFE: I'm going to try to use as little bit of When I do, I'm going to try to

technical terms as possible. explain them. THE COURT:

Tell me why, as to the Internet, these

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rules are verboten. MR. WOLFE: Okay. Well, let's look at the rules. Rule 7.6, as we

Rule 7.6 is the rule we are talking about.

have alluded to during some of the previous conversations, (a), (b), and (c), regard what lawyers post on their Web site like Morris Bart's Web site that was shown on the screen. It also

regards e-mails, unsolicited e-mails that lawyers will send to potential clients. These types of advertisements are considered information provided upon request and they are subject to a different type of rule. They can't be false, they can't be

misleading, but they don't have to be submitted for evaluation, for example, under Rule 7.7 and pay a $175 fee. THE COURT: I know you give an example where, I

think, the amount involved in doing it is less than the penalty -MR. WOLFE: THE COURT: The fee of doing it. What did the bar association do to

investigate this aspect of lawyer advertising? MR. WOLFE: distinguishes -THE COURT: MR. WOLFE: THE COURT: That's why I make so much money. -- our case. I get to ask the really seemingly That's one of the key things that

brilliant questions --

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MR. WOLFE: THE COURT: MR. WOLFE:

That's what distinguishes our --- thanks to my law clerks. -- case from the other plaintiffs' case There's an argument here There's an argument

because there's an argument here.

about whether the state has shown a harm.

about whether the contents of their advertisements are harmful. There's an argument. I'm not going to say whose side I come

down on, but there's no argument with regard to Internet advertising. No one is going around and saying: "Man, all those Internet advertisements, they're

"Those Internet advertisements, they disgrace the profession. They're misleading." No one has looked into it.

No one said that. No one has investigated it.

They have conducted a survey, and

they didn't ask a single person from the survey if they had seen an Internet advertisement. What happened was, they produced these regulations with a goal of restricting certain types of speech in certain mediums: Broadcast television and print television.

They didn't come to that goal trying to restrict anything with the Internet, but what they did was they created 7.6 and said, "All the regulations that apply to television and that apply to radio, they are going to apply to the Internet, too, without any reason, without any investigation.

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So that's one of the distinguishing factors of our argument is that there's a debate about whether there's a harm here. There's a debate about whether these regulations There's really They

were necessary and whether they were tailored.

no debate from our standpoint because there is no harm.

haven't shown a harm, they haven't alleged a harm, and I don't even know if they fear a harm. I'm going to get back to the rules themselves. I talked about the seminal rule, 7.6, information upon request. I'm not concerned about that stuff. THE COURT: MR. WOLFE: THE COURT: MR. WOLFE: 7.6(d)? 7.6(d). Advertising. It basically says if you are not I'm concerned with 7.6(d).

advertising on your Web site or you're not sending an e-mail, everything else you do online is subject to all the rules. That's not information provided upon request. to all the rules. That's subject It has to

It has to go through evaluation.

have the required information. It has to have everything.

It has to have the disclaimers.

This is a problem.

There's a disconnect between

the rules and the reality of what's going on of how people advertise online, and that's where we're going to get slightly technical because we are going to talk about the one most popular way that people use the Internet to advertise and

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that's with Google. THE COURT: MR. WOLFE: THE COURT: embarrassed once. Believe it or not, I know what Google is. You don't know what Google is? I do know what Google is. I was very

Being a widower, I had been fixed up with One of my colleagues here said, That's

someone in Philadelphia.

"Well, Google her," and I thought he was being vulgar. how I discovered what Google means. MR. WOLFE: them, though; right? Go ahead.

So I do know.

Since then you have probably read about Because they are a hugely successful

company, and they're one of the biggest companies in the world. The reason why they are a huge company is because they sell Internet advertisements. That's all they do. All their income

comes from Internet advertisements, so this is the best example to look at and say, "Do these regulations work?" If the state was interested in regulating Internet advertisements, a prudent thing they would have done was said, "Well, how do people advertise online? out how to regulate that." Let's figure

Since they didn't do that, they

didn't tailor their rule to how the world actually works online. There's a disconnect between how the rules are and

what the reality of Internet advertising is. An Internet advertisement through Google is through what's called targeted search advertisement. different from what is known as a banner ad. It's

The reason why

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I'm bringing up banner ads is because they were mentioned by the defendants in the handbook, the Louisiana handbook. When

these rules were promulgated in Florida, they were concerned with banner ads because that was popular at the time. If you have ever visited nola.com, for example, you see all these advertisements. are there all the time. Those are banner ads. They

I would go to nola.com.

I'd say, "I'm

going to give you $5,000 a month. all the time on this page." advertising online.

You display this single ad

That is a dying form of

That's why Google is so enormously successful, because they changed the way that advertising works. Most

advertisements online are through Google, where you pay Google every time your ad is clicked. THE COURT: MR. WOLFE: words. Every hit. Every hit. You pay them for certain key

I practice construction law, so I would say, "When

someone searches for a construction lawyer, I want my ad to appear." Your ad appears, and it's about that big. THE COURT: MR. WOLFE: What does it say? My particular ad? I have a few. I have

a bunch of them, actually.

Some of them would say: File A Lien. Protect Your

"Wolfe Law Group. Rights."

"Learn more about construction liens."

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"Do you have a construction dispute?" "Are you having trouble getting paid on your construction project?" Things like that, and the key thing about it is it can't say much. The reason why -Because it's too small. Because it's like trying to advertise on You don't have very much room to say what

THE COURT: MR. WOLFE: a mini Post-It note.

you are going to say; but immediately, when they click on your advertisement, they are being thrown to your Web page. THE COURT: MR. WOLFE: THE COURT: Switch sides for a second. Sure. Argue to me what is wrong with that and

what should be regulated. MR. WOLFE: regulated? THE COURT: MR. WOLFE: should be regulated. You're now Mr. Wittmann. All right. Well, attorneys' speech What's wrong with that and what should be

Commercial speech should be regulated. The government

It's clear the government has a right to do it.

has a right to regulate commercial speech when it's going to be misleading, and they should put rules together that are going to try to prevent that on the Internet. Just because it's on the Internet doesn't mean that the attorney can speak something that's untruthful. It

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doesn't mean he can use a jingle or an actor or an image, although those things don't exist on the Internet through the Google advertisements, for example, but they still have a right to regulate that. One of the things I would presume that Mr. Wittmann is going to argue is that the harms of an attorney communicating incorrectly and untruthfully are the same regardless of where it applies. THE COURT: Which of your ads -- I'm sorry.

"Mr. Wittmann," which of Mr. Wolfe's ads are harmful and misleading? MR. WOLFE: THE COURT: that? MR. WOLFE: THE COURT: No. He may. I can tell None, and that's why -You think Wittmann is going to tell me

I've known him for 50 years.

you he is not going to tell me that. MR. WOLFE: He may because I don't know of any of my That's one of the cases

ads that are harmful and misleading.

that distinguishes us from the plaintiffs' case; not that their ads are harmful and misleading, but that we are not concerned about content. At the end of the day, my ads will likely be

compliant because I'm not saying anything -- I don't use jingles. I don't use slogans. THE COURT: I don't --

You're arguing the pure constitutional

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theory of regulation and how it came about in the case of the Internet. MR. WOLFE: In one sense, yes, but the other sense is

the problem that the rules themselves are flawed in how they are applied to the Internet, and that creates a problem for me. THE COURT: MR. WOLFE: I understand. With Google advertisements, the required

information such as your name and town, well, now I have to take 50, 60, 70 percent of my ad space where I can't communicate very much. I don't even get 10 seconds. I get,

like, this tiny, tiny space.

I'm not going to be able to say

what we need to say in the ad. One of the bigger problems with how these rules apply to Google ads is the evaluation process. A Google

advertisement is an Internet advertisement, is a way for companies -THE COURT: When you say "the evaluation process,"

you mean the evaluation process by the bar association? MR. WOLFE: THE COURT: MR. WOLFE: Correct. Okay. Rule 7.7. Every time that you have an

advertisement, it's $175. evaluating it. this reason:

I'm not concerned about them

I'll really concerned about the $175 and for

The reason is that when you advertise online, You don't spend $5,000 to

it's not a television commercial.

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produce it.

You don't spend $3,000 every week to run it.

A

billboard -- you don't print a big canvas and spend money on it and leave it up there for six months. completely opposite. Advertising on the Internet is completely opposite to how you advertise in the other broadcast mediums because these little-bitty ads, they take so long to get right. What Google does, it goes and it learns about what people are searching for. It learns that when they are searching for So when you start a Google The Internet is

this, these ads are more effective.

campaign, you use a number of variations. One of the examples I gave in my brief is in 2008 we ran a three-month ad. Three months. We had 17

variations, 17 different ways of saying our message, advertising the different key words. As we learned the success

of those variations, we would change it and say, "Well, you know what? This ad, when I say lien, I'm 30 percent effective.

But when I say mechanic's lien, that gets people's attention more." So I changed it to say mechanic's lien. The result is, over a three-month period, I spent $160 on a Google ad campaign. If I had to go through an

evaluation process, it would have cost me $2,900 to go through an evaluation process. campaign. This is a tiny, tiny advertising And it's not

It's not a big advertising campaign.

to say that they can't regulate it.

They can regulate it.

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THE COURT: MR. WOLFE: THE COURT: MR. WOLFE:

What do other states do? Nothing. Nothing?

Do you know?

In the other states, they don't have the

evaluation period except for Florida, because these rules are from Florida. here. They don't have the evaluation period like we do

Basically, in New York, Internet advertisements are

regulated; but since there's no evaluation, there's not as much harm, and they don't have the required information which restrict the space on the small advertisement. There are

better ways for the defendants to regulate this. THE COURT: What happened in Cahill after Did it ever go to the Second

Judge Scullin's decision? Circuit? MR. WOLFE:

It's pending.

I think that

Judge Sotomayor was sitting on that case, and there's been no decision yet. MR. GARNER: MR. WOLFE: That's correct. So it's pending. Our particular

argument, as it relates to the Internet, wasn't really put before then. THE COURT: MR. WOLFE: THE COURT: your position. I know that. This is a unique -I do read cases. Look, I'm familiar with

I don't mean to cut you off, but I don't know

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that you have anything to add.

People might want to take about

a five-minute stretch, including some of the people from the public, so we are going a five-minute recess. the plaintiffs are finished? MR. GARNER: THE COURT: Unless you have more questions. "Finished" is a very poor choice of Be back I assume that

words, but I just want to let people have a stretch. in five minutes. minutes. THE DEPUTY CLERK: All rise. All right.

We will be adjourned for five

(WHEREUPON the Court took a brief recess.) THE DEPUTY CLERK: All rise.

Be seated, please. THE COURT: Mr. Wittmann. Good morning, Your Honor. Phil

MR. WITTMANN:

Wittmann on behalf of the defendants. The point that Mr. Wolfe was making when we broke a moment ago is sort of a good lead-in to what I would like to argue to the Court this morning. He was talking about

the Google ads on the Internet that neither you nor I are particularly familiar with. In any event, those Google ads can

all fit within the safe harbor provisions of the rules and are not subject to prefiling requirements. As long as they're

truthful, you don't have to go through any filing requirements at all. So they have created a problem without looking at any

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concrete example to show you why it's a problem. THE COURT: Are you saying that these rules don't

apply to the Internet? MR. WITTMANN: THE COURT: What's that?

Are you saying that these don't apply -Oh, no, they do, but I am saying there

MR. WITTMANN:

are safe harbor provisions, like in Rule 7.2 of these rules, where you don't have to go through any prefiling requirement. You can go ahead and run your Google ad and there's no problem. That leads into the basic problem we have here because, in each of these cases, they're asserting a facial challenge to the rules which don't become effective until October 1 of this year. Your Honor, the Court presently lacks

subject matter jurisdiction because there's no actual controversy that presently exists. THE COURT: jurisdiction. Let's just assume that I do have

What about the adequacy under the Constitution

of the rules themselves? MR. WITTMANN: The adequacy of the rules themselves,

the rules were adopted after careful study by the Louisiana State Bar Association -THE COURT: They say that --- promulgated by the Supreme Court.

MR. WITTMANN: THE COURT:

They say no careful study. Look at the United States

MR. WITTMANN:

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Supreme Court's decision in Florida Bar v. Went For It, which is one of the cases we cite. The Court said you don't have to What you do is you

prove everything down to a gnat's eyelash.

look at the wealth of information that you have available to you. The case law doesn't require empirical data accompanied

by a surfeit of background information but instead has permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales all together. So their criticism of our relying on the Florida They also overlook the public hearings that

work is misplaced.

were conducted by the bar association before the rules were adopted. THE COURT: Maybe I used the wrong word, but that's

what I was referring to regarding anecdotal material. MR. WITTMANN: was evidence that -THE COURT: correct? MR. WITTMANN: Yes, there were. There were. Lots of There were public hearings; is that There was anecdotal material. There

people had an opportunity to come and speak at those hearings, including these plaintiffs. So the bar association did

carefully consider and then -THE COURT: Did Garner wear a bow tie? I don't know whether Mr. Garner made

MR. WITTMANN: it or not.

But then the Supreme Court withdrew the rules and

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restudied them again, did further empirical work, came back -they changed some of the rules and repromulgated. So the

criticism that no one had any evidence to go forward with these disciplinary rules, Your Honor, just isn't right. THE COURT: Mr. Garner's shoes. Let me ask you to step over into How could the rules have been drafted

narrower in order to support or meet the test of

Central Hudson?

You're now Jim Garner. If the ad is inherently misleading,

MR. WITTMANN:

Central Hudson doesn't even apply.
THE COURT: That's true. My particular point to make to

MR. WITTMANN:

Your Honor is that one of the difficulties we are having in this argument this morning is that the plaintiffs have shown no injury in fact. They haven't shown any concrete and

particularized ad that they have proposed that has been turned down by the committee, that has been threatened with some action -THE COURT: do that. Well, I don't think they should have to If

If Mr. Bart wants to -- as he probably is.

someone is advertising and they are planning an advertising campaign to reach consumers -- in Mr. Bart's case, let's say personal injury cases -- it seems to me the fear of offending the rules is enough. Quite frankly, I've sort of overcome any

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hesitancy about these preliminary questions.

I'm much more

interested in getting right to the constitutional issues. MR. WITTMANN: Well, I understand that, Your Honor,

but I would call Your Honor's attention to the recent case of

Harrell v. The Florida Bar, where the federal court in the
Middle District of Florida, I believe it was, found that plaintiffs' fears about what might or might not happen with respect to ads that have not been submitted for review by the committee of the bar were simply based on rank speculation. THE COURT: I know. I'm not minimizing district

court opinions because I think mine are the most important in the world, but the fact of the matter is, if I'm going to discount Cahill and wonder whether it's a helpful guide, I don't know that that case is any more helpful to me than

Cahill.
MR. WITTMANN: THE COURT: One final point.

This is a very important case. One final point I want to make on

MR. WITTMANN:

causal connection, though, if I may, Your Honor -THE COURT: All right. -- is it's a standing requirement to Even if the plaintiffs could establish

MR. WITTMANN: be a causal connection.

a concrete injury -- and we don't concede that they have -there's no causal connection between any injury and the actions of these defendants.

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These defendants -- Mr. Plattsmier, the disciplinary board, the chairman of the board -- did not draft these rules. The Louisiana State Bar Association rules These defendants didn't adopt the rules. The

committee did.

Louisiana Supreme Court did.

These defendants are not charged

with making the initial determination as to whether any particular ad complies or doesn't comply with the rules. The

Louisiana State Bar Association rules committee or a designated subcommittee has that job. These facts are not disputed, and these facts establish that these plaintiffs can't establish the causal connection required for standing in this case. I think that's

an important point, Your Honor, that needs to be considered because without standing you're right back into the Harrell case. The case here is even more compelling than it was in Harrell. In Harrell, the rules were in effect. They

are not in effect here.

In Harrell, the plaintiffs raised an

anticipatory challenge based on their assessment that planned future advertisements might run afoul of the rules. The

plaintiffs in that case had not sought an advisory opinion as to whether planned future advertisements would comply with the rules, and the district court held that the plaintiffs didn't have standing and their claims were not ripe. should apply here. The same results

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 advertisement. screen.

We are not dealing with any specific You saw a few that were flashed up on the

That was their interpretation of how the rules

committee might interpret what the rules say, but the rules committee may well reach a different result. could have been set on separate frames. Those disclaimers

They didn't have to be

flashed over the face of the person who is paying for the ad. The committee is going to have the responsibility for doing all that. What they are really asking Your Honor to do is render advisory opinions on how these rules should apply to ads that have not yet been crafted or developed and for which they have not requested any assistance from the bar association. So

you are in a situation, Your Honor, where you really are sort of taking over a role that I think courts have traditionally been unwilling to take over, that is, ruling on ads in a vacuum. As to Public Citizen, they also lack associational standing, Your Honor. I mention that in passing.

I think I have covered that in the brief, so I won't beat that to death here. They have failed to identify any specific and

particularized harm that their members have suffered or that they are