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

Filing 15

MOTION for Preliminary Injunction by Public Citizen, Inc., Morris Bart, Morris Bart L.L.C., William N Gee, III, William N. Gee, III, Ltd.. Motion Hearing set for 11/19/2008 10:00 AM before Judge Martin L.C. Feldman. (Attachments: # 1 Notice of Hearing, # 2 Memorandum in Support, # 3 Exhibit, # 4 Exhibit Bart Declaration, # 5 Exhibit Berwager Declaration, # 6 Exhibit Gee Declaration, # 7 Exhibit Wolfman Declaration, # 8 Exhibit Beck Declaration, # 9 Exhibit Beck Declaration Exs. 01-10, # 10 Exhibit Beck Declaration Exs. 11-20, # 11 Exhibit Beck Declaration Exs. 21-33, # 12 Exhibit Beck Declaration Ex. 24, # 13 Exhibit Beck Declaration Ex. 25, # 14 Exhibit Beck Declaration Exs. 26-27)(Ciolino, Dane) (Additional attachment(s) added on 10/28/2008: # 15 Exhibit Beck Declaration) (caa, ).

Exhibit 26

2

Exhibit 27

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Comisky told the board that the committee recommended that the board approve a new contract between the Bar and Morgan Stanley. He informed the board that there is an arbitration clause for fee dispute included in the contract and that Morgan Stanley insists on including this in all of their contracts. The board approved the contract. 13. Audit Committee Report Chair Clif McClelland reported that the audit committee continues to look at emergency preparedness. The first action that the Bar needs to take is to spend about $2,500 per month to improve the back up process used by I.S. McClelland said that the committee is looking at proposals to set up emergency generators. The committee will continue to research this and will be bringing a recommendation to the board later in the year. 14. Board Review Committee on Professional Ethics Report Chair Steve Chaykin reported that the committee met and discussed the following items: A Advertising Appeals 06-00301, 06-00303, 06-00409, 06-00410, 06-00459, 06-00460, 0600461, 06-00462, 06-00565, 06-00828, and 06-00829 concern application of Rule 47.2(b)(1)(B), prohibiting statements that are likely to create unjustified expectations, and Rule (b)(2), prohibiting false or misleading statements. Based on guidance from the Standing Committee on Advertising, staff rendered an opinion on September 13, 2005 that the firm's domain name and various statements concerning recovery are likely to create unjustified expectations, and that some statements about the firm's fees as compared with other lawyers' fees were misleading, because they misstate what lawyers can charge in certain contingent fee cases and misstate amendment 3 requirements, among other violations. Based on guidance from the Standing Committee on Advertising, bar staff rendered an opinion on September 15, 2005, that the domain name and other statements about recovery contained in a yellow pages advertisement (file number 06-00565) created unjustified expectations, based on the committee's guidance in the prior files. On January 3, 2006, staff rendered an opinion on two television advertisements (file numbers 06-00828 and 06-00829) that the tag line created unjustified expectations based on the committee's guidance in the prior files. The Standing Committee on Advertising upheld the staff opinions on November 15, 2005 (file numbers 06-00301, 06-00303, 06-00409, 06-00410, 06-00459, 06-00460, 06-00461, 06-00462, and 06-00565) and on February 21, 2006 (file numbers 06-00828 and 0600829). The attorney subsequently requested Board of Governors review. (A) The BRC voted 4 to 2 to reverse the Standing Committee on Advertising, finding that the domain name "youraccidentrecovery.com" is not likely to create unjustified expectations and therefore complies with Rule 4-7.2(b)(1)(B) in file numbers 06-00301, 06-00303, 06-00409, 06-00460, 06-00462, and 06-00565. The board voted to approve the BRC recommendation to reverse the Standing Committee on Advertising's decision. (B) The BRC voted 4 to 2 to reverse the Standing Committee on Advertising, finding that 2. the tag line "It's about you ­ your health, your family and your recovery" is not likely to create unjustified expectations under Rule 4-7.2(b)(1)(B) in file numbers 06-00301, 0600303, 06-00409, 06-00410, 06-00459, 06-00460, 06-00461, 06-00462, 06-00565, 0600828, and 06-00829. The board voted to approve the BRC recommendation to reverse the Standing Committee on Advertising's decision. B. Advertising Appeal 06-00988 Advertising Appeal 06-00988 concerns application of Rule 4-7.2(b)(1)(B), prohibiting statements that are likely to create an unjustified expectation. Staff rendered an opinion on November 22, 2005, that the statement "the lawyer you choose can help make the difference between a substantial award and a meager settlement" was likely to create unjustified expectations, in violation of Rule 4-7.2(b)(1)(B). The Standing Committee on Advertising upheld staff's opinion on February 21, 2006. The attorney subsequently requested Board of Governors review. The filer's position is that the language has been previously approved by the bar and is a true statement that is "universal to all lawyers."

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C.

D.

Note: the language was approved by staff in file number 04-01077, 02-01002 (as revised 3/22/02). Similar language "the lawyer you choose can help make the difference between a large award and a small settlement" was approved by staff in file number 9801297. The BRC voted 6 to 0 to reverse the Standing Committee on Advertising decision, finding that the language "the lawyer you choose can help make the difference between a substantial award and a meager settlement" is not likely to create unjustified expectations and therefore complies Rule 4-7.2(b)(1)(B). The board voted to approve the BRC's recommendation to reverse the Standing Committee on Advertising's decision. REQUEST FOR RECONSIDERATION IN ADVERTISING APPEAL 05-02359 The Standing Committee on Advertising requests that The Florida Bar Board of Governors reconsider the board's decision in advertising appeal 05-02359. Advertising Appeal 05-02359 concerned application of Rule 4-7.2 (b)(1), prohibiting misleading information. Staff rendered an opinion on May 13, 2005, that the advertisement in file number 05-02359 contained misleading information based on the filer's inclusion of the term "Doctor En Leyes." The Standing Committee on Advertising upheld staff's opinion on September 13, 2005. The attorney subsequently requested Board of Governors review. The Board Review Committee on Professional Ethics voted 5-0 to affirm the Standing Committee on Advertising decision that the term "Doctor En Leyes" (Doctor in Laws) is misleading under Rule 4-7.2(b)(1)(A) because it implies the lawyer has qualifications other than a juris doctor degree. The board voted to approve the BRC recommendation on the consent calendar. On January 20, 2006, the Standing Committee reviewed staff's opinion on a yellow pages advertisement filed by another attorney in file no. 06-00996. The committee voted 4-2 to reverse staff's opinion for all three attorneys, determining that listing "Doctor of Law" in the attorneys' qualifications is not potentially false or misleading under Rule 4-7.2(b)(2)(B) because Mr. McMillen and Mr. Reinhart were each awarded a "Doctor of Law" degree from Emory University and Mr. Voght was awarded a "Juris Doctor" from the University of Florida, which can be translated as "Doctor of Law." In light of the committee's January 20, 2006 decision, staff requested that the Standing Committee on Advertising seek the board's reconsideration in advertising appeal 0502359, because it seems inconsistent with the January 20, 2006 decision. The Standing Committee on Advertising voted to request that the board reconsider its decision. The BRC voted to recommend that the board reaffirm the Standing Committee on Advertising decision that "Doctor in Leyes" is misleading in violation of Rule 47.2(b)(1)(A). After discussion, the board voted to defer a decision on the issue until the next board meeting. ADVERTISING REQUESTS FOR GUIDANCE 06-01401 and 06-01453 The Standing Committee on Advertising requests guidance from The Florida Bar Board of Governors concerning two advertising matters. The Standing Committee on Advertising for many years had determined illustrations or photographs of persons in handcuffs violated the lawyer advertising rules, first under the former rule prohibiting dramatizations, then under Rule 4-7.2(b)(4), stating that "visual or verbal descriptions, depictions, or portrayals of persons, things, or events shall not be deceptive, misleading, or manipulative." In 2003, The Florida Bar prosecuted Florida Bar member Gary S. Ostrow for the use of an illustration of hands in handcuffs in a direct mail as a violation of Rule 4-7.2(b)(4). The referee issued a report on March 11, 2003, that the illustration did not violate any bar rule. The board voted not to contest the referee's report. The court issued an order approving the referee's report on June 26, 2003. Since that order, the Standing Committee on Advertising has discussed the issue of illustrations of hands in handcuffs or handcuffed persons numerous times. At the recommendation of the Legal Division Director, the committee has been treating the board's decision not to appeal the referee report as a board decision on the issue and has been finding that illustrations of hands in handcuffs are permissible. The committee is troubled by the use of that type of

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illustration, and a majority of committee members have indicated that they would find that type of illustration in violation of Rule 4-7.2(b)(4) were it not for the board's decision in the Ostrow case. The committee therefore voted to request guidance from the board regarding this issue. (A) The BRC voted 6-0 to recommend that the board inform the standing committee that the board's decision not to appeal the referee's report finding regarding an illustration of hands in handcuffs in a disciplinary case is not precedent that would bind the committee. The board voted to approve the Board Review Committee's recommendation. (B) The BRC voted 6-0 to refer the issue of whether photographs used in recent advertising filings violate Rule 4-7.2(b)(4) back to the standing committee to make its own determination. The board voted to approve the Board Review Committee's recommendation. 15. Special Committee on Website Advertising Rules 2005-2006 Report Chair Chobee Ebbets gave the board a brief history on the advertising rules. He reminded the board that the advertising task force had concluded last year that a website could not be regulated and that the advertising rules would not apply to them. At that time, the board members voted to approve that recommendation and asked for further study of the issue of lawyer websites. President Bookman appointed a new task force to look at lawyer websites. The task force was divided into 4 subcommittees to study the following topics: technology issues associates with websites, constitutional issues regarding the rules, enforcement-related issues, and other states' and American Bar Association's rules. Ebbets told the board that the task force had voted 6-4 that websites be treated as information on request and, under the bar's most recent proposal to the court, not regulated by advertising rules. The task force is now looking at specific rules proposals to determine if some intermediate position would be appropriate. The task force had no recommendations for the board at this time. 16. Lawyer Action Report Chair Manny Morales told the board that the Florida Lawyers Action committee of continuing existence was created about 10 years ago out of the frustration that some of the board members had concerning the legislature. The committee has had both active and dormant years over the last decade. Morales pointed out that he is the committee's president-elect. He told the board that the committee is attempting to collect $250 from each lawyer. Morales also discussed the absence of lawyers in the legislature. He reminded the board members that they need to be making an impact on their local and state governments, as they have the proper training. He told the board that the committee had met and were working on their website. He said that Steve Metz is working on creating a legislator score card, based on how the legislators voted on issues relating to the judiciary. Finally, Morales suggested that the board members go to the committee website to make a donation. 17. Young Lawyers Division Report President Jamie Moses reported that every law school in the state had been visited by the Young Lawyers division at least once, some twice. Moses said that the YLD had held its spring symposium at the University of Florida Law School. The speakers and moderators of the program had lunch with the law students. All of the invited speakers were able to attend and the program was a success. Moses told the board that the YLD has increased its efforts to expand on the speakers used for the practicing with professionalism and their CLE programs. The YLD has approached and invited lawyers from the minority bars, disabled lawyers and government lawyers to speak. Finally, Moses told the board that Scott Atwood was elected to be the President-elect of the YLD for the 2006-2007 year. 18. Certification Plan Appeals Committee Report Chair Nancy Gregoire reported that the Supreme Court had directed that The Florida Bar need file no response because the court is treating the current appeal as a petition or review.