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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MS. SCHABEL: I know, so, yes, I think that the more you say, and I think you should encourage

81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 people. It's -- you know, you can comment on the web site. The idea is to get input, not to just push something through. We are on a short time frame but that is largely dictated by forces other than us so, you know, stepping up to the plate and making your comments is really important. Yes? MR. PITTENGER: Not -- not to drag this out, Richard, any longer, my wife actually has a babysitter tonight, so she's going to be disappointed if I sit around here all night, but I read -- in reviewing the materials before tonight's meeting, I remember seeing something that -- that said you submit your ads and if -- if the LSBA says that the ads pass muster, and you run them, that they could still run afoul at the ODC; is that my understanding? MR. LEMMLER: I think that's correct. I think it --

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as in any instance currently, if you seek an advisory opinion from the LSBA, that is not binding on anyone. It's our advice. It's

82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 our best interpretation of the rules and our best counsel to you as to what we believe the rules mean, and I think that, perhaps, has some mitigating value and I know it would for a hearing committee and the board and perhaps even the Court, but it is not binding on the Disciplinary Counsel or the board or the Court. MR. PITTENGER: Yes, but up -- up to this date, your - your suggestions or your -- your answers to my routinely stupid questions over the telephone are not admissible in the -- in a -MS. SCHABEL: That's a change. MR. PITTENGER: -- at a hearing or -MR. LEMMLER: That's correct. MS. SCHABEL: In this situation --

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MR. PLATTSMIER: This would be admissible, Tommy. MS. SCHABEL:

83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 -- this would be admissible. MR. PLATTSMIER: If you've got something in writing, an approval from Richard and the LSBA screening folks, acted in good faith, tried to comply, modified the advertisement, if that had been suggested, whatever, and, then, you ran it and we get a complaint from somebody that says, "It's obviously deceptive or wrong because of 'A', 'B' or 'C'," and we look at it and we say, "Well, you know, they've got a point. Maybe it is" and you come back and say, "But I did it exactly in accordance with the recommendations of the good folks there", that has got to be taken into consideration and it is admissible if we would be perhaps foolish enough to go forward with the disciplinary prosecution -MR. PITTENGER: Thank you. MR. PLATTSMIER: -- and it's provided for.

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MR. PITTENGER: Thank you. MR. LEMMLER:

84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Yes, it's essentially what we have now, modified, and I have to admit that, certainly, I guess we were discussing this earlier, a couple of the staff attorneys and myself, that, you know, it's a process, at least, that's available to you. It's someone to give you a second opinion on your ad before you run it, you know. It's better than not getting it, I guess, in my view so, you know, we're trying to help the lawyers, I guess is the real goal here. MR. PLATTSMIER: Let me make a statement for the record. The information that we have kind of gotten feedback from, from other states, who have a similar process, such as Florida, is that, over the years, their perception has been that lawyers who wish to engage in some form of advertisement, routinely do make use of that service because they genuinely want it to be in compliance with the rules. That is not to say that there

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might not be some folks who would like to push the envelope and see if they can't intentionally, perhaps, present

85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 constitutional issues. That may well happen, as well, but that could probably happen with just about any set of rules or restrictions on advertising. UNIDENTIFIED SPEAKER: I have another question, is there -is there a process that, before you invest your money in producing a TV spot, that you have a video description and a -- and a script that you say, "This is what I intend to do", before I do it, so that you don't have to incur the production costs twice? MR. LEMMLER: Essentially, if you do the written advisory opinion process the first component, that first process, you do have to pay a fee, but it's before you incur all your production costs and so forth and, you know, there is no real time limit on that and we'll work with you until you get it right, under the proposal. We do that now. Anyone else?

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(No response.) MR. LEMMLER: Okay. Well, I guess that's it.

86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Thanks to everyone for coming. MR. KING: The number? MR. LEMMLER: Oh, yes. On the CLE, I'm sure you need that. MR. KING: Write this down, 0250061102. MR. PHILLIPS: Do it again. MR. KING: It's 0250061102. MR. PHILLIP: And what's the name? MR. KING: Reevaluating Louisiana's Lawyer Advertising Rules, and I'll bring -- I'll leave it right up here if anybody needs to see it. MR. LEMMLER: You get one hour of ethics for this. MR. KING:

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One hour of ethics. MR. GUIRARD: One last question. I'm sorry. E --

87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 E. Eric Guirard. Has there been any effort, I'm just wondering, on the part of the Committee, to -- to poll or study attorneys in other jurisdictions that have had to toil under similar rules? There are a number of other states that have that. MR. LEMMLER: Florida. Florida has this right now. Texas has it right now. MR. GUIRARD: Florida, yes. MR. LEMMLER: New York is proposing it. MR. GUIRARD: It seems to be -- it seems to me it would be really valuable to -- to at least talk to lawyers who have had to be subject to these rules to see their -- their experiences or their problems. MS. SCHABEL: We are told, and we are regularly in contact with people active in the Texas and

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Florida Bar -MR. GUIRARD: That's the Bar Association.

88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MS. SCHABEL: -- we are told that they are -- that they are regularly -- you know, that there has been positive -MR. GUIRARD: Well, you were told that. That's the Bar. I just wonder about the actual lawyers. MR. LEMMLER: Well, I don't know how we could identify and target those folks. MR. GUIRARD: They have ads. MR. LEMMLER: They have an opportunity to come forward. Well, they can come forward now. We have a public comment -MR. GUIRARD: Would it be okay, I mean, if some of those attorneys contacted and commented? MR. LEMMLER: It's public comment. Anyone can

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comment. MS. SCHABEL: Anyone can comment. It's on the web

89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 site. MR. LEMMLER: They're more than welcome, I'm sure, anyone's comments -MR. GUIRARD: Okay. MR. LEMMLER: -- so there is no restriction. You don't have to be a member of the Bar to comment. Anything else? (No response.) MR. LEMMLER: There is refreshments, food outside. Please help yourself. There is plenty. MS. SCHABEL: Take some home. MR. LEMMLER: Thank you for coming. Thank you very much for your comments. MR. PLATTSMIER: Thank you for coming.

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THE HEARING WAS CONCLUDED AT 6:12 P.M. *****

90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 REPORTER'S PAGE I, Lori B. Overland, Certified Court Reporter, in and for the State of Louisiana, the officer, as defined in Rule 28 of the Federal Rules of Civil Procedure and/or Article 1434(b) of the Louisiana code of Civil Procedure, before whom this sworn testimony was taken, do hereby state on the Record That due to the interaction in the spontaneous discourse of this proceeding, dashes (--) have been used to indicate pauses, changes in thought, and/or talk overs; that same is the proper method for a Court Reporters's transcription of proceeding, and that the dashes (--) do not indicated that words or phrases have been left out of this transcript; That any words and/or names which could not be verified through reference material have been denoted with the phrase "(inaudible)." _________________________ Lori Overland, C.C.R. # 97083

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91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CERTIFICATION I, the undersigned reporter, do hereby certify that the above and foregoing is a true and correct transcription of the stenomask tape of the proceedings had herein, taken down by me and transcribed under my supervision, to the best of my ability and understanding, at the time and place hereinbefore noted, in the above entitled cause. I further certify that the witness was duly sworn by me in my capacity as a Certified Court Reporter pursuant to the provisions of R.S. 37:2551 et seq. in and for the state of Louisiana; that I am not of counsel nor related to any of the counsel of any of the parties, nor in the employ of any of the parties, and that I have no interest in the outcome of this action. I further certify that my license is in good standing as a court reporter in and for the state of Louisiana. ______________________ Lori Overland, C.C.R.

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# 97083