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)

49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Somebody stop me when you have a point to make. The solicitation rule in the proposed 7.4 is essentially what we have right now in our current Rule 7.3. Notable changes on that, the phrase, "Prior professional relationship" has been changed to, "Prior lawyer-client relationship". MS. ALSTON: Why? MR. LEMMLER: Ms. Alston? MS. ALSTON: Why? MR. LEMMLER: That's one for the Committee. They would have to answer that. MS. SCHABEL: It was felt to be more directly descriptive, I think it was. MS. ALSTON: Okay, so you can't have direct contact

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with your doctor; if you have a professional -- prior professional relationship with your doctor, you can't say, "Doc, your HIPAA form

50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 is not in compliance. Let me fix it for you"? I think -MR. PLATTSMIER: I think that was discussed in the Committee meetings -MS. ALSTON: I think -MR. PLATTSMIER: -- specifically. MS. ALSTON: I think that's a narrowing of the rule. MR. PLATTSMIER: It may well be, Beth. It certainly is a change. I think the notion was that, if you had a prior -- you know, the ABA -- I believe this is right. The ABA model includes even a prior significant social relationship -MS. ALSTON: Right. MR. PLATTSMIER:

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-- gives you the entree. MS. ALSTON: Right.

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. PLATTSMIER: The Florida rule did not incorporate that, but incorporated what is referred to as, "The prior professional relationship," which, I think many people interpreted, certainly, to include an attorney-client relationship. That may well have been interpreted by some as including individuals with whom you've had a prior professional relationship, such as you described, your doctor, a CPA, a tax preparer, whatever the case may be. The question arose in debates whether or not those individuals who are not part of a prior attorney-client relationship necessarily want to be included within the scope of a rule that allows you to make an in-person, face-to-face solicitation of their legal business or not, and the Committee's decision at that point was perhaps it ought to be narrowed to the attorney-client relationship. As I remember the discussion, that's what was said but

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that's why we're having this meeting, again, to get comments from folks who may have a different perspective.

52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MS. ALSTON: Well, if it -- you know, as I see the intent of some of these rules, is to narrow what is perceived to be distasteful and over-the-top advertising for unsophisticated clients. If you have a prior professional relationship with someone who's a professional, I would think that, that type of person would not necessarily need protection of this rule change. MS. SCHABEL: Are there any other comments with regard to this? (No response.) MR. LEMMLER: Okay. Another notable exception or change, with respect to the same phrase, is that, "Prior lawyer-client relationship" has been defined, within the proposed rules, to exclude, "Relationships in which the client was an unnamed member of a class action", essentially, one of thousands, a cast of

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thousands that you truly have never had contact with. MS. ALSTON:

53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Isn't that a matter of law, wasn't that -- I mean, in the -- there is a lot of different ramifications of class action law, whether a member -- unnamed member of a class is your client or not. I mean, isn't that an issue of state and federal law? MR. LEMMLER: That's a good point. MR. BURNS: Ms. Alston, some people in the back are saying they can't hear you. MS. ALSTON: Oh, I'm sorry. I said, isn't that a matter of law, whether an unnamed member of the class is a client or not? I think that there are cases both ways, and it depends on the jurisdiction. Different federal jurisdictions, state jurisdictions, vary on whether an unnamed member of a class is a client, and at what point they become a member of the class, and a client, or not. MR. WALTERS:

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Beth, I think this is broader than that. I think what this says is that, if a person is an unnamed member of the class,

54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 but not named on a thousand -MS. ALSTON: They fall within the class? MR. WALTERS: Yes. MS. ALSTON: That has been certified? MR. WALTERS: Right, but what this is designed to do is to prohibit people from having a list of a gazillion people and just contacting a gazillion people. Every time something happens, you all of a sudden have a relationship with all these people in this class -MS. ALSTON: Well -MR. WALTERS: -- whose clients are they, whose clients aren't they, but this is pretty narrow as to unnamed persons in the class. MS. ALSTON:

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Well, as I understand it, all contact -- most -- in most class action cases, especially in Federal Court, all contact

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 with potential class members is closely regulated by the Court and sanctioned by the Court, and am I wrong? MR. WALTERS: Well, I don't know, Beth. I've never had a Federal Court class action so -- but I'm not sure that State Court class action contact is very regulated. MS. ALSTON: Well, the point is, and -- and we're wrestling with this issue on the ABA Standing Committee on Ethics and Professional Responsibility, of which I'm a member, and we're talking -- we're studying this issue and one of the things we discussed is that, you know, when can counsel for the defendants contact unnamed members of the class and when can the counsel for plaintiffs contact them and, you know, we haven't reached a conclusion but what we're looking at is an even playing field and, if -- because, you know, I don't

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think you can restrict plaintiffs' lawyers from doing this when defense lawyers are doing it all the time. You know, Kleenex

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 sends out investigators to interview people who might be part of a class action of an allergy claim against Kleenex, to find out if there really is enough numerosity to become a class. I just -- in this way, I think it's obviously slanted against the plaintiffs' lawyers. MR. LEMMLER: Any other comments? (No response.) MR. LEMMLER: Okay. Let's move forward. "Rule 7.4 Direct Contact with Prospective Clients." Written communications, again, the same prohibitions as are currently contained in Rule 7.3(b). The notable additional conditions on prohibitions, the communication must abide by 7.2, containing the required information, "The hiring of a lawyer is an important decision" and so forth. A copy must be filed with the LSBA, as

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provided by Rule 7.7 -MS. ALSTON: Well --

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. LEMMLER: -- which we've already alluded to and we will get to in a moment. MS. ALSTON: I'm sorry, Richard. What is the LSBA going to do with it; are you going to look at all of them? MR. LEMMLER: I think so. MS. SCHABEL: And we're going to be the keeper of them. MS. ALSTON: Right, and, then, if you think they violated the rule, then, you're sending them to Chuck? MR. LEMMLER: Then we will give them advice with respect to the rules. MS. ALSTON: Oh, okay. MR. LEMMLER:

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Question, I think? MS. ALSTON: Wait. There is a question.

58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MS. MARTIN: Margaret Martin. So e-communications that we send out thousands of a week, we need to file with you each time? MR. LEMMLER: E-communications, emails? MS. MARTIN: No, e-communications. MR. LEMMLER: There is a distinction in the rules, I think, and we'll get to that in a moment, and I don't know which one this would fall into, given their definition. MS. MARTIN: All right, so any -- let's say -newsletters that you -- that you have been mailing on an ongoing basis to an existing mailing list, do we have to file every newsletter before it's sent? MS. ALSTON: I think that's a good question because, you know, under our current rules,

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newsletters are not advertisements. For our newsletters and thing -- and web sites and stuff are not advertisements, and these

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 rules make them advertisements. MS. SCHABEL: I think it would depend on the contents of the newsletters. What you put in the newsletter could fall within the stuff that's essentially a safe harbor. MS. MARTIN: And so is it a 30-day waiting period to find out whether or not we can send out a newsletter? MS. SCHABEL: What I'm telling you is that, if your newsletter contains only the safe harbor information, if, it doesn't -MR. LEMMLER: Let me see if I can try to address your question. We've jumped ahead but I don't want to miss your question. Rule 7.8, the proposed 7.8, contains a list of exceptions to the filing requirement. One of those exceptions is, "A communication mailed only to existing clients, former

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clients, or other lawyers" so, if these folks are already your clients and you're sending them a newsletter every week or

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 every month, there is no reason to file it, much as you would with people who are requesting information, the contact has already been established, essentially. Any other questions on this point? (No response.) MR. LEMMLER: No written communications to someone unlikely to, "Exercise reasonable judgment in employing a lawyer." MS. ALSTON: That includes insurance companies, doesn't it? MR. LEMMLER: If contacting a prospective client about a specific occurrence, you must -- the communication must contain the phrase that, "If you have already retained a lawyer for this matter, please disregard this letter." A statement that the signing lawyer will not handle the matter, if that is indeed the case.

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No revelation of the underlying legal matter on the envelope. Nothing saying "I'm contacting you about your serious personal

61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 injury case that occurred last week." You're respecting those privacies. General computer -- I'm sorry. "Rule 7.5 Advertisements in the Electronic Media Other Than Computer-Accessed Communications." We're effectively talking here about TV and radio. In general, computer-based ads are subject to 7.6. All other ads in the electronic media, including but not limited to TV, radio, are subject to the requirements of 7.2, nothing false, misleading or deceptive. "Appearance on Television or Radio. "Prohibited Content. Television and radio advertisements shall not contain: (A) any feature that is deceptive, misleading, manipulative, or that is likely to confuse the viewer or listener; (B) any spokesperson's voice or image that is recognizable to the public in

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the community where the advertisement appears; (C) lawyers who are not members of the

62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 firm or the advertising law firm speaking on behalf of the advertising lawyer or law firm; or (D) an background sound -UNIDENTIFIED SPEAKER: Wait. A question on that, if you -if you have a voice-over, a professional voice-over, saying that they know the attorney, they -- they can't do this, like a talent if the -MR. LEMMLER: I think that this -- the rule says, "Recognizable to the public in the community where the advertisement appears" so you're not prohibited from having spokespersons or voice-overs, it's just someone who is recognizable to the public and the community where the advertisement appears. UNIDENTIFIED SPEAKER: So this would apply to just that? MR. LEMMLER: Yes, ma'am.

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Moving forward. Appearance on TV and radio, what is presumptively permissible? "Television and radio advertisements may

63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 contain: (A) images that otherwise conform to the requirements of these Rules; (B) a lawyer who is a member of the advertising firm personally appearing to speak regarding the legal services the lawyer or law firm is available to perform, the fees to be charged for such services, and the background experience of the lawyer or law firm; or" -- as we just discussed -(C) a non-lawyer spokesperson speaking on behalf of the lawyer or law firm, as long as the spokesperson's voice or image is not recognizable to the public in the community where the advertisement appears, and that spokesperson shall provide a spoken disclosure identifying the spokesperson" as such and, "Disclosing that the spokesperson is not a lawyer."

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MR. PITTENGER: Richard, I'm sorry, again. Can we go back to 7.4, the last element contained in

64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 7.4? MR. LEMMLER: If I can figure out how to do this. Do you want me to -- let's see if I can scroll through it. Rule 7.4? MR. PITTENGER: Yes. MR. LEMMLER: Okay. MR. PITTENGER: One of them said something about a -background music. MR. PLATTSMIER: Rule 7.5, Tommy. MR. PITTENGER: I'm sorry. MR. PLATTSMIER: Rule 7.5(1)(d). MS. SCHABEL: At the bottom there. MR. PITTENGER: Yes. I'm just curious about why,

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other than instrumental music. MS. SCHABEL: The discussions were about things like

65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the sounds of car crashes and stuff; isn't that right? MR. WALTERS: Car crashes and jingles, that kind of stuff. MS. SCHABEL: Yes. It was quite an ambient discussion about jingles, I might add. It went on a long-time, the discussion about jingles. MS. ALSTON: Anybody who thinks that this rule is not susceptible to a valid First Amendment challenge, then, they must have skipped the Bill of Rights classes, like George W. Bush apparently did. MR. PLATTSMIER: Okay. MS. SCHABEL: All right, Beth, that was on the record. MR. LEMMLER: