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

Filing 79

EXPARTE/CONSENT MOTION for Leave to File Excess Pages by Public Citizen, Inc., Morris Bart, Morris Bart L.L.C., William N Gee, III, William N. Gee, III, Ltd.. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Proposed Order Motion for Summary Judgment, # 4 Proposed Pleading Memorandum in Support of Motion for Summary Judgment, # 5 Proposed Pleading Statement of Uncontested Facts, # 6 Proposed Pleading Notice of Hearing, # 7 Proposed Pleading Request for Oral Argument, # 8 Exhibit 1-5, # 9 Exhibit 6-7, # 10 Exhibit 8 pt 1, # 11 Exhibit 8 pt 2, # 12 Exhibit 8 pt 3, # 13 Exhibit 8 pt 4, # 14 Exhibit 8 pt 5, # 15 Exhibit 8 pt 6, # 16 Exhibit 9 pt 1, # 17 Exhibit 9 pt 2, # 18 Exhibit 9 pt 3, # 19 Exhibit 9 pt 4, # 20 Exhibit 10 pt 1, # 21 Exhibit 10 pt 2, # 22 Exhibit 10 pt 3, # 23 Exhibit 10 pt 4, # 24 Exhibit 11 pt 1, # 25 Exhibit 11 pt 2, # 26 Exhibit 11 pt 3, # 27 Exhibit 12-15, # 28 Exhibit 16-20, # 29 Exhibit 21, # 30 Exhibit 22)(Reference: 08-4451)(Garner, James)

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mouth shut. I'll try to rely on my best memory of some of the comments in some of the research I thought that was discussed on

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that. MR. PLATTSMIER: Well, and I'm just suggesting to you, it may have been part of the discussion, Beth, about why that ought to have been this rule because this was the subject of a good bit of debate within the Committee. I seem to recall there being a justification, perhaps, or -- that said that, when you bring in the judiciary as a sort of stamp of approval, it lends the honor and the integrity of the judicial side of things, the adjudicative side of things, as standing in your corner and giving you a favorable blessing, which is probably an inappropriate use of the judiciary, and that may well have also been the reason for not permitting -or the proposal did not permit the use of someone who's dressed like a Judge, or to portray a Judge. MS. ALSTON: Well, I don't have a problem with

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there. MS. ALSTON: But an empty courtroom, you know --

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. PLATTSMIER: I'm here to get your comments and observations. MR. LEMMLER: Anyone else on that point? (No response.) MR. LEMMLER: "Resembles a legal pleading, notice, contract or other legal document". This portion actually -- this language actually appears in a couple of places within the rules. It actually already appears within our current rules, as well. "Utilizes a nickname, moniker, motto or trade name that states or implies an ability to obtain results in a matter". "Fails to comply with Rule 1.8(e)(4)(iii)." Basically, the rule now that we have dealing with advertising financial assistance. MR. PITTENGER: Sorry to interrupt you again, Richard, but back to the -- the nickname. Obviously,

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our concern would be the -- that the -- we - we advertise using a nickname. That -would that prohibit us from advertising or -

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 - or even using letterhead that says, "E. Eric Guirard"? MR. LEMMLER: I think under the rule, it perhaps would. MS. SCHABEL: It wouldn't prohibit you from using the name, it would just prohibit you from using the nickname. MS. ALSTON: Well, but -- are you talking about the "E. Guarantee" thing? That's not a nickname. That's a -- that's a -MR. PLATTSMIER: A slogan. MS. ALSTON: -- slogan. MS. SCHABEL: A slogan and slogans are also not allowed. MR. PITTENGER: All right, so Skip Phillips would have

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to change his name back to -MR. PHILLIPS: So it would become anonymous because

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 nobody knows me by my real name. That's my alias. MR. PLATTSMIER: I know who you are, Mr. Phillips. MR. PHILLIPS: I'm afraid that you do. MR. LEMMLER: No. I think -- I think if you reexamine -- let me differ with you on that one point and this is not meant to be debated as much as for absolute or a clarification as to what I think the language might be, "Utilizes a nickname that states or implies an ability to obtain results" -MR. PHILLIPS: I think that's the way they -MR. LEMMLER: -- if you have a -- you know, a nickname you've been using since you were a child, assuming that it doesn't say, you know, "Win all cases," you know, then, I

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suppose it's okay. MR. PHILLIPS: You've got to read the whole phrase

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 together. MR. LEMMLER: Yes, sir? MR. PITTENGER: I think Skip can fly -MR. PHILLIPS: You do? MR. PITTENGER: -- and you're going to win. (An off-the-record discussion followed.) MR. LEMMLER: Okay. Moving forward. Rule 7.2.(b)(2), "Misleading or Deceptive Factual Statements. Any factual statement contained in any advertisement or written communication or any information furnished to a prospective client under this Rule shall not: (A) be directly or impliedly false or misleading; (B) be potentially false or misleading;

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(C) fail to disclose material information necessary to prevent the information supplied from being actually or

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 potentially false or misleading; (D) be unsubstantiated in fact; or (E) be unfair or deceptive." Again, all based on the primary rule that nothing should be false, deceptive or misleading when talking about yourself or your firm. Rule 7.2(b)(3) "Descriptive Statements. A lawyer shall not make statements describing or characterizing the quality of the lawyer's services in advertisements or written communications; provided that this provision shall not apply to information furnished to a prospective client at that person's request or to information supplied to existing clients" so, again, the big exception here is that you can tell your existing clients or prospective clients who ask, whatever, pretty much, they want to know, as long as it, again, is not false, misleading or deceptive.

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"Prohibited Visual and Verbal Portrayals" in 7.2(b)(4). "Visual or verbal descriptions, depictions or portrayals of

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 persons, things, or events shall not be deceptive, misleading or manipulative." All, again, based on the basic premise. Rule 7.2(b)(5), "Advertising Areas of Practice. A lawyer or law firm shall not state or imply in advertisements or communications that the lawyer or law firm currently practices in an areas of practice when that is not the case." Basically, you can't lie about what you do. "Stating or Implying Louisiana State Bar Association Approval" in 7.2(b)(6). "A lawyer or law firm shall not make any statement that directly or impliedly indicate that the communication has received any kind of approval from The Louisiana State Bar Association." We're not endorsing anyone's ads. Rule 7.2(C), "General Regulations Governing Content of Advertisements." We'll just skip the overview and go right to the rules themselves. "Use of Illustrations.

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Illustrations, including photographs, used in advertisements shall contain no features that are likely to deceive, mislead or

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 confuse the viewer." Nothing false, misleading or deceptive. "A lawyer may communicate the fact" -in 7.2(C)(3) -- "That the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is 'certified,' 'board certified,' an 'expert' or a 'specialist' except as follows:" and, again, this is pretty much mirroring what is already in our current rules. It's just augmented a bit. Lawyers certified by the Louisiana Board of Legal Specialization, those may state that they are certified. Lawyers certified by organizations other than the Louisiana Board of Legal Specialization or another state Bar, also, may proclaim that they are experts or specialists. In keeping with that, "Certification by Other State Bars" -MS. HARVEY: I have a question.

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MR. LEMMLER: Yes, ma'am? MS. HARVEY:

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 My name is Brenda Harvey. Where you're talking about the particular fields of law, that would be all right to communicate the particular field of law. Could you give us an example? MR. LEMMLER: Essentially, it's the same as the rule right now. You can say that, "I concentrate my practice in personal injury", "I am focused on family law matters", I limit my practice exclusively to intellectual property." You can't use the buzz words, that, "I am certified", "I am an expert or specialist", unless you fall under those categories and have been indeed certified as having a specialty under the Louisiana Plan of Legal Specialization. Advertising lawyers, under 7.2(C), must, "Disclose whether" -- did I skip something here? MR. PLATTSMIER: No.

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MS. SCHABEL: No. MR. LEMMLER:

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Okay. Sorry. "Disclose whether the client will be liable for any costs and/or expenses in addition to the fee", when providing information about fees. Again, essentially, I think what is probably in our rules right now. You have to tell them whether they're going to be responsible for anything other than the fees. You must honor the fee quoted in the advertisement for a certain period of time. You must pay -- again, what's in our rules, pay for the advertisements themselves. This, I think, is a little something added but -- any comments? (No response.) MR. LEMMLER: Okay. Disclose that the matter will be referred to another lawyer, if that is the case. Nothing false, misleading or deceptive. "Permissible Content of Advertisements." These are the safe harbor

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provisions, information that is, on its face, presumed not to violate these rules. "Subject to the requirements of this

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 rule and Rule 7.10," which deals with firm letterhead and so forth, you can state the name of the lawyer or the law firm, a listing of lawyers that are associated with the firm, office locations, parking arrangements, disability accommodations, telephone numbers, web site addresses, electronic mail addresses, office and telephone service hours and designate yourself as an, "Attorney" or a, "Lawyer" or a, "Law firm". Basic information. Nothing wrong with telling clients in your advertisements basic information, again, as long as it's presumably not false, misleading or deceptive. You can state the date that you were admitted to the State Bar, and any other Bars, your current membership or positions, or your former membership or positions held with the Louisiana State Bar, sections or committees, together with the dates of those positions. Former positions of employment

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held in the legal profession, together with dates those positions were held, years of experience practicing law, number of lawyers

45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 in the advertising firm and a listing of the federal Courts and jurisdictions other than Louisiana where you're licensed to practice. Again, all information that clients would probably want to know, all basic stuff about yourself. You can provide technical and professional licenses, information on that, granted by the state or other recognized licensing authorities. If you can speak or have someone that can speak a foreign language. Fields of law in which you practice -to answer your question from before -including official certification logos, subject to the requirements of subdivisions (C)(2) and (C)(3), what we've already alluded to. Prepaid or group legal service plans in which you participate. Your fee for your initial consultation, if there is one, a fee

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schedule. Again, subject to the provisions of Section (C)(4) and (C)(5) of this Rule. List the name and geographic location

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 of yourself or your firm, "As a sponsor of a public service announcement or charitable, civic or community program or event." "Common salutary language such as "best wishes," "good luck," "happy holidays," and the like. "Illustration of the scales of justice not deceptively similar to official certification logos" of the Bar Association logo. "A gavel or traditional renditions of Lady Justice, or a photograph of the head and shoulders of a lawyer or lawyers who are members of or employed by the firm against a plain background consisting of a single solid color or a plain unadorned set of law books," -MS. ALSTON: So what is it -MR. LEMMLER: -- plain, vanilla. MS. ALSTON: You can't have a waist-up shot?

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MS. SCHABEL: I'm sorry? MS. ALSTON:

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 You can only have head and shoulders, you can't have a full body shot in your ad? MR. PLATTSMIER: That may be the Chuck Plattsmier rule. They just don't want anything but my head. MS. ALSTON: Yes. Well, I could understand that but you're not going to be -MR. PLATTSMIER: That's true. MS. ALSTON: -- advertising, are you? MR. PLATTSMIER: Thank you, Beth. MR. LEMMLER: These are the presumptively approved forms of advertising. No one has said, necessarily, that you cannot show from the waist up. It just says, if you do this, you're presumptively approved. MS. ALSTON: Chilling effect.

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MR. LEMMLER: "Rule 7.3, Advertisements in the Public Print Media." Also, subject,

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 generally, to the requirements of the previous Rule 7.2 that we've just discussed. "Disclosure Statement." "Shall contain the following disclosure:" -- this is the highlighted 7.3. Your, "Advertisement in the public print media shall" state that, 'The hiring of a lawyer is an important decision that should not be based solely upon advertisements.' Disclosure is not required when the ad contains no illustrations and no information other than that listed in subdivision (C)(12) of 7.2, what we've been calling the safe harbor exceptions, the things that I've just discussed. All of those head and shoulder shots and the plain, vanilla stuff. "Written communication sent in compliance with 7.4.", targeting direct mail, essentially, what you can do now, as well. "Rule 7.4 Direct contact with Prospective Clients." This is broken down into essentially two parts, solicitation in

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person, or other forms, and written communications. I'm just going to keep rolling.