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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Moving forward -- and anything else about this point? (No response.)

66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. LEMMLER: Permissible content. I think we've already covered that. "Rule 7.6 Computer-Accessed Communications." Basically, electronic communications not on TV or radio. Two distinct forms, the -- as I said, the Internet presence, or web site, versus email. All of these are subject to the location requirements of 7.2. You must indicate where your office is located, that you have a bonafide office in a certain location. Must comply with 7.2 unless otherwise provided. May provide information deemed valuable to assist potential clients. Oops, wait a minute. Yes. We skipped ahead to 7.9. This is part of the substantive -this is substantive versus procedural, so we skipped 7.7 and 7.8, and we're saving that for the procedural part, even though we talked about it already. Rule 7.9, if your clients are asking

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you for information, you still must comply with 7.2, unless otherwise provided. You may provide information that is deemed

67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 valuable to assist a potential client. You may provide an engagement letter, but any contingency fee contract shall have, "SAMPLE" and, "DO NOT SIGN" written on it so that they know it is a sample. "May contain factually verifiable statements concerning past results." Must disclose the intent to refer the matter to another lawyer or law firm, if indeed that is the intent. "Rule 7.10 Firm Names and Letterhead". It's substantially what we have right now, discussing what you can put on your letterhead, what you can call your firm, whether or not you can state that you are in a partnership and so forth. Proposed procedural rules, the second component. "Advance Written Advisory Opinions, that we've already talked about briefly. Then there is a regular required filing component and, then, there are exceptions to that filing requirement.

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Procedural rules for advertising, 7.7, for filing requirements. Rule 7.7(b) provides for the, "Advance Written Advisory

68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Opinion". Rule 7.7(C) provides the filing requirement for most advertisements. You can either do 7.7(b) in seeking advance written advisory opinion and have that basically served, at some point, as the filing, or you can just submit it for filing and skip the advisory opinion. It's up to you. Submission requirements, in either case, there will be a fee to be set by the Supreme Court under this proposed -MS. ALSTON: Payable to the Bar? MR. LEMMLER: Payable to the Bar, assuming the Supreme Court wants it that way, to basically underwrite this process. MS. SCHABEL: Wait one second. MR. LEMMLER: Yes. Yes, sir? MR. COLLINS:

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What sort of fee, I mean, what's -what's done in Florida? MR. LEMMLER:

69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Would you state your name, please. MR. COLLINS: Sean Collins. MR. LEMMLER: Okay. What sort of fee? MR. COLLINS: Yes. How large would -MR. LEMMLER: Florida -- I'm sorry. MS. SCHABEL: It's $150. MR. LEMMLER: Florida, right now, is $150 per -MR. COLLINS: Per ad? MR. LEMMLER: -- per ad. However, under the advisory opinion process, and as is proposed under this process, if you opt to seek a written advisory opinion, until you get that right, there is no additional fee. If you decide to file it on your own, without

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seeking an advisory opinion, you take your chances, and you may have to pay another fee if it's deemed not in compliance.

70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MS. SCHABEL: Beth? MS. ALSTON: In 2008, we will be celebrating 100 years of lawyer self-regulation, the anniversary date of the canons of professional responsibility, and scholars who have been reviewing the motives behind the initial drafters of those canons have -are pretty much in agreement that the antisolicitation rules were designed to protect the status quo, people with the societal and business contacts, and to prevent people who wanted to represent immigrants, or tell immigrants that they had legal rights that could be protected. Additionally, this anti-competitive effect of the rules has been safe from anti-trust regulation by the state action exception but our -- the Louisiana State Bar Association status, as a mandatory state Bar, is quite imperiled at this point because none of the traditional

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justifications for a mandatory Bar exist. The Supreme Court has taken away Bar admissions, Bar discipline, MCLE. What

71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 else, Marta? Something else. MS. SCHABEL: This is your statement, not mine. MS. ALSTON: And so those traditional functions of the mandatory Bar are no longer with our Bar. I know that other states are considering roles like this. For example, New York, and in New York, they're already preparing -- gathering money to mount First Amendment challenges to rules like this. If the -- if the Louisiana State Bar Association recommends these rules for adoption to the Supreme Court and ends up being sued in those First Amendment challenges, if there are any filed here, the Bar Association may not have the state action exception to the anti-competitive effect of these rules and I, for one, would hate to see our Bar dues going to pay for expensive First Amendment fights, which are going to be well-funded on the other side.

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MS. SCHABEL: Anybody else have any comment in that regard?

72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (No response.) MR. LEMMLER: Okay. Part of the submission requirements, again, a fee to be composed and perhaps set by the Supreme Court. A copy of the advertisement and a sample of your envelope. Let me just say before I go any further, that you get an hour of CLE credit for your attendance here today. We'll give out the forms when we're done so those of you who might need it who consider leaving at this point, you're free to leave but know that your CLE credit is available. Let's see. MS. SCHABEL: We're almost done, though. MR. LEMMLER: Yes. We're moving pretty well. MS. SCHABEL: We're on slide 38 of 41, so we're almost there.

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MR. LEMMLER: I'm surprised that we've made it that far so quickly.

73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A copy of the advertisement and a sample of the envelope. A typewritten copy of a transcript that, presumably, it's a TV or radio ad, something that is not already in printed form. A statement concerning the type of media frequency and duration of the advertisement, where you intend to run it, how long you intend to run it, how many times you intend to run it and so forth. Exemptions from the filing requirement. Again, 7.8. It contains -one of the exemptions is that your materials, your advertising, contains only the safe harbor content as enumerated in 7.2(C)(12), all of those plain, vanilla things. If your advertisement is a brief announcement identifying the lawyer as a sponsor for a charity event, provided that no information is given but the name and the

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location of the sponsoring law firm, that is presumptively exempt from the filing requirements.

74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 "A listing or entry in a law list or bar publication." "A communication mailed only to existing clients, former clients or other lawyers." "Any written communications requested by a prospective client." Yes, sir? MR. PITTENGER: Richard, if a client calls and asks about being represented in an automobile accident, can you, then, send them -- I mean, do they have to specifically request, you know, "Send me a track record of what you have done in the past" or, "Tell me what you can do for me", that sort of thing? MR. LEMMLER: Well -MR. PITTENGER: If they call and ask for representation, can we then send them a packet of information?

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MR. LEMMLER: I guess the devils in the details. If they say, "I want more information" or, "Can

75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you send me something", sure. If they say, "I don't want to use you," then, I think you'd have a hard time proving that they asked for that information. Any other questions or comments? (No response.) MR. LEMMLER: As we said, any written communications that are requested by the prospective client. Professional announcement cards mailed to other lawyers, relatives, former or current clients and close friends. "Richard Lemmler is opening his new practice for the practice of law." "Computer-accessed communications as described in subdivision (b) of Rule 7.6." Essentially, your web sites. The proposal -- I think we're now through the body of the proposed rules. This is what we are proposing to the Court Committee and to the Court, is that there

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should probably be some sort of phase-in, if the Court adopts some form of these rules. We're proposing that there should be at

76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 least, perhaps, a 90-day period to modify ads that are currently in use. The printed advertisements with an annual or other limited periodic publication schedule, obviously, recognizing that you can't change a Yellow Pages ad but once a year. Grandfather -- as I said, grandfathered annual advertisements must be submitted thereafter. Future work plan. We're conducting the public hearings, as we talked about already, three more to take place. Special rules of debate were adopted by the Louisiana State Bar House of Delegates. They've already been adopted. Presumably, once the proposal has gone through the public hearing process and assuming that the Supreme Court Committee believes that we should go forward, then, I suppose we'll go through the House and be debated before the House of Delegates. Resolutions addressing amendments must

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be submitted in writing 30 days in advance of the House of Delegates' meeting. I think the deadline for that is --

77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MS. SCHABEL: December 15th. MR. LEMMLER: -- December 15th or 13th? MS. SCHABEL: Better to be safe and -MR. LEMMLER: Right around the 13th or 15th, but you can find that on the Bar website, LSBA.org. The Supreme Court Committee to study attorney advertising will review our proposal, so all of your comments that are being recorded here today will be reviewed by the Rules of Professional Conduct Committee and then, again, reviewed, I'm assuming and assured, probably that they will be reviewed by the Supreme Court Committee and, perhaps, more than likely, by the Supreme Court themselves. That's it. Yes, ma'am? MS. HARVEY: Will the slide show be on the web

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site? MR. LEMMLER: I suppose we can put it up there. I

78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 don't see why not. MS. SCHABEL: We'd be delighted to; although, we hadn't thought of that. MR. LEMMLER: Right now, in case you're not aware that, on the web site, we do have a basic set of the rules, as proposed. There is also, as I've been alluding to and as you'll find in the back of the room, a side-by-side comparison of our current versus the proposed rules. Yes, sir? MR. COLLINS: So what's the -- the earliest date for the new rules to take effect? MS. SCHABEL: Well, let me just address the process so that everybody is clear on this. The Bar Association operates essentially in an advisory capacity to the Supreme Court. The Court is the only entity that can make a

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decision about what rule will actually be implemented, and I don't know that there is any way to predict what their schedule would

79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 be, but the issue of whether we will recommend these rules, and what content our recommendation will take, will be heard in the House of Delegates on January 20th, at which point, whatever our decision is will be transmitted to the Court, which will then take action in the Court. Historically, the Court has moved fairly slowly. In this particular circumstance, the Court has been requested by the legislature to move forward on this issue, and there is a sense of a little bit more urgency about it. I would anticipate March 1. UNIDENTIFIED SPEAKER: For the rules to be in effect, or for the Supreme Court -MS. SCHABEL: For them to be adopted and with an effective date in -- shortly thereafter, would be our thought, which also means, you know, from the Bar Association's perspective, if it moves forward as

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proposed, that we've got to change a lot of what we're doing to be able to accommodate people's needs.

80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 UNIDENTIFIED SPEAKER: And I have a question, as -- as you go to Lafayette, Shreveport and New Orleans and you hear the same questions being asked on the same three or four issues that brought me here, are -- is that -- is it likely that the rule -- what you recommend would be changed? MS. SCHABEL: The answer to that is, that, historically, when we did the ethics 2000 trip around the state, very much like this, we thought the comments were invaluable and they were indeed incorporated. The thoughtful ones were very -- were indeed incorporated into what we ultimately came up with and I haven't heard anything here today that I didn't think was thoughtful, with certain possible exceptions, but -- Beth and I are friends. I apologize. MS. ALSTON: I did that on purpose.