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)

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 let's say for class actions, okay, and so that those people signing a lawyer outside the jurisdiction of the State Bar is like being in Texas, to prevent this kind of thing. What actions are we're going to take

if anything? MR. PLATTSMIER: Chuck Plattsmier. Under the Supreme

Court jurisdictional rules which is contained in Rule 19, Section 6. As well as

any lawyer not admitted in this state who practices law or renders or offers to render any legal services in this state is subject to the disciplinary actions of the Court. think that language would extend to any lawyer. MR. GAY: I think that the rules are meant to apply to out of state lawyers who advertise in Louisiana, but I understood your comment, and I think it may -- sends a confusing signal, we should look at it. MR. GORFORTH: I don't know. It's like a -I

MR. LEMMLER:

ASSOCIATED REPORTERS, INC. [phone]

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Excuse me, sir, could you speak up a little more. MR. GORFORTH: Actually, that's the only real problem I see here. MR. BURGESS: I just want to briefly comment on that. It would seem to me the only way to monitor that would have to be someone has seen the commercial from an out of state lawyer, and obviously they're not -MR. PLATTSMIER: As a practical matter, that's where we are today. We don't get -- we don't take

disciplinary action of a violation of advertising rules unless someone brings it to our attention, or I stay up late at night and catch it myself. MR. LEMMLER: I don't know that I have an answer -MR. BURGESS: If they intend to broadcast in Lake Charles and Lafayette on one of the channels they should submit that to the State Bar like everyone else.

ASSOCIATED REPORTERS, INC. [phone]

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEMMLER: Well, I'll get to those questions in just a second. There is a little known Revised

provision in the Revised Statute.

State 37:212 and 213 of the legislature for the practice of law. 213 actually makes --

advertising as a lawyer in the state if you're not licensed here, and whether or not that's possibly enforced by the criminal authorities. MR. BURGESS: I'm just asking, I would suggest that someone look into possibly local commercials, maybe consider some type of -MR. DURIO: I don't know about what Chuck said, and your comment, but I'm wondering whether it really is to see if the Office of the Supreme Court to try to prosecute people who are not licensed under the provision you read for -- it's never -- to my knowledge, the intent to the Office of the Supreme Court to prosecute people who are not licensed as lawyers MR. PLATTSMIER:

ASSOCIATED REPORTERS, INC. [phone]

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We have jurisdiction, and we have investigated and taken disciplinary action against out of state lawyers who are here on co hoc vitae who applied for and obtained permission on co hoc vitae while here. The

real concern we need to have on the out of state lawyer who may be here in a transactional capacity, perhaps it would apply it would apply to co hoc vitae, application, and engage in a misbehavior here. If he doesn't have a license or a

recognition grant, what can I do to effect their behavior other than investigate, perhaps prosecute by the Supreme Court and ask them to perhaps impose the discipline for misbehavior. If they're here violating

our rules -- most states have a Rule of Professional Conduct, it's against our rules and jurisdiction, and you get a mixed sort of result in other states enforcing disciplinary action against one of their own. MR. LEMMLER: I'm sorry. of you. I think this lady was ahead

ASSOCIATED REPORTERS, INC. [phone]

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. BILLEAUD: Well, I just think that that sort of answers my question because I'm thinking jurisdiction so that answers my question. MR. GOFORTH: I'm also concerned about -COURT REPORTER: I can not hear him. MR. LEMMLER: Sir, can you speak up? you. COURT REPORTER: If you could stand, I can maybe hear you. MR. GOFORTH: Several years ago there was an organization (inaudible), and you can have a lawyer outside of the state not subject to jurisdiction (inaudible) that's a concern of mine much of the same as the national advertising that we see today. Just because She can't hear

it's a non-lawyer and people inside the state and people inside the state and that's concern of mine. MR. LEMMLER:

ASSOCIATED REPORTERS, INC. [phone]

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 That's a good concern. comment, sir. It's a good

I think we may be getting a

little afield from the text of the rules themselves. That is another issue, and we

can go on probably in another public hearing about it, and I'll take another comment from you at the end if you want to make a general statement, but we've really got to plow through the text of the rules, and unless it's a direct comment to the text, we could just go forward. MR. BROUSSARD: That's the reason I came -- it's a good comment. MR. LEMMLER: No, it's a great comment. I just --

we're really just trying to the comments about the rules right now. The proposed

rules, and if that's a hole in the rule, fine, we've got it. Where are we? 7.2,

Required information.

And basically all

written communications in advertisements, 7.2 says you're going to be required to put the name of the lawyer responsible for the content of the communication as well as the

ASSOCIATED REPORTERS, INC. [phone]

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 location of the practice. A bonafide office

location of a lawyer or lawyers who will actually perform the services advertised. Any comment on that? 7.2(b)Prohibited statements and information. this. Basically, we just summarized

Your statements about legal services,

and this reflects pretty much what we have right now in our existing Rule 7.1. cannot contain a false, misleading, deceptive, or unfair communication about the lawyer, the lawyer services, or the law firm services. I'll note for you that Florida It

has just amended the rule and taken out the word "unfair." They are basically coming

more in line with what the ABA uses as it's normal phrase of false, misleading, and deceptive, which is what our rule says right now. I'm sure that's something the

committee will be looking at. Prohibited statements about legal services. statements. Examples of prohibited Communication violates this

rule if it contains a material misrepresentation of fact or law or omits a

ASSOCIATED REPORTERS, INC. [phone]

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact necessary to make the statement considered as a whole, not materially misleading. Florida, as a note, just

removed their last clause of that omits a fact necessary. So, again, something we may

be looking at, but that's in our proposal right now. Contains any reference to past

successes or results obtained or is otherwise likely to create an unjustified expectation about results the lawyer can achieve. right now. Effectively, that's in our rule Contains any reference --

MR. BROUSSARD: I have a comment. If you use someone

that has a severe headache, horrible headache, can't think straight, and they need a neurosurgeon, you need one right now, you need a good one, how do you pick a neurosurgeon? You don't know a doctor. You

look for information.

People go through the

same process when they try to pick a lawyer. You look in the phone directory, or you watch television, you'll see that almost all the lawyer advertising is a personal injury. So who are you talking about? People that

ASSOCIATED REPORTERS, INC. [phone]

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are disabled, bill collectors, their boss

is mad at them they're not at work, they have kids who they have to feed, and their focus right now is quick as possible, get a good lawyer. Where do they get information A good lawyer who

about a good lawyer?

doesn't practice personal injury work, and say, you know, who are the best lawyers that handle this kind of case, and that guy, he knows something about that. Says, "Well,

Frank Neunor got a judgment on a very difficult case; he got five million dollars." How does that lawyer give his He thinks So the

friend a good lawyer's advice?

about what he knows about people.

lawyer takes his recommendation, the fact that he knows that they've gotten these big judgments in exactly this kind of case, handling exactly this kind of case or in Court. So the lawyer makes his You don't want to send them

recommendation.

to someone who has walked out of school yesterday or someone who has been advertising for thirty years and has never been to a courthouse. So how, considering

ASSOCIATED REPORTERS, INC. [phone]

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the requirements of Florida, how does this meet the test to certain interests of our profession? How does saying that someone

who actually got a judgment can not advertise that judgment? I'm telling you

that I'm very much against being able to advertise settlements because settlement money is very deceptive. A guy settles a

case for a million dollars and it's worth two million dollars, that doesn't tell you a thing about -- but the guy got ten judgments in exactly the kind of case that you're handling for him. Doesn't that tell you

something important about these brought cases to handle your case? So my comment as

for this one is, you should prohibit advertisement of settlements. You should

prohibit any advertisement that gives unjust expectations. Not what you can get on your

particular case, but you should permit advertising that accurately reflects an actual experience with the lawyer because advertising is a legitimate way for people to get valid information. MR. LEMMLER:

ASSOCIATED REPORTERS, INC. [phone]

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Okay. Thank you. Yes, ma'am.

MS. BILLEAUD: Susan Billeaud. How do you prohibit

absolutely true statements just because, you know, someone may be misled, why do people focus on what is actually misleading, and I think that may would cover what Richard was saying. Perhaps we just change the "or" to

"and," and say past successes "and" is likely unjustified expectation. That way if

someone does hash out a twist an otherwise true statement to become a misleading statement, but past result, a straight forward manner that's absolutely true. So again I don't want to outlaw or ban people from communicating accurate information. MR. LEMMLER: Thank you. Yes, sir.

MR. HERNANDEZ: Advertising is at times, it projects an unjustifiable expectation. You know, in the

context of advertising of true advertising and this is nothing to do with legal advertising; you see it all the time on TV. That's this. That's that. Number one

ASSOCIATED REPORTERS, INC. [phone]

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gumbo, number one etouffee, it's our culture. The expectation is that that this

restaurant is better than the other one. Some restaurants advertise. Some Same

restaurants don't need to advertise.

thing with lawyers, some may advertise, some may not need to advertise. Material The

misleading -- and I agree with Richard.

information that is subject to a client or a potential client to determine who is the lawyer for that individual, I think it's certainly incumbent upon that individual; it's different to every individual. An

individual that is looking for a business lawyer versus an individual that is looking for a personal injury lawyer, and I can tell you it's such a fine line -- it's such a fine line as to what is, you know, unjustifiable expectation of that lawyer, that says, you know, ten million dollars in settlements in 2005 versus the lawyer that says ten million dollar judgment, you know, for the cases ten years old. That's -- you

know, when we discuss lawyers in the House, it's to put the personal of what I think of

ASSOCIATED REPORTERS, INC. [phone]

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 advertisement is misleading by nature often to confuse the consumer in buying the product. That is nothing that the legal

profession never wants to get into, that we are selling "a product that we're selling somebody along the line gumbo," a lot of people feel that are there, that we've cross the line, and that the only way we can legislate proper advertising is to document the meeting today. I think the majority of

lawyers -- I think the majority of the lawyers I know, I speaking as of myself, are like that, but I think it's a very delicate process, and I think it would come to -with my conception of advertising is, it makes it more difficult because you look at material misleading, words such as that, unjustifiable expectation, and it's at the core of what I think advertising provokes. It may not be, but certainly in the consumer fashion. MR. LEMMLER: Thank you, sir. first. MS. SIAS: Yes, ma'am, you're

ASSOCIATED REPORTERS, INC. [phone]

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Jocelin Sias, I'm a lawyer in Lafayette. I am one of those new lawyers, and I am concerned about the attorneys who are advertising the amount of settlements. feel like if they have qualifications to settle that kind of case, but I have people who are coming in for representation, they have relative minor injuries, and that because of that fact they are injured, they are going to get this huge settlement, and I think a lot of it -- not of all it is due to the advertisement that those people are talking about that they get hundreds of thousand dollar settlements, and they look fine; they look like nothing is wrong with them, but the person who is watching it, doesn't know that there's a problem with their vehicle that hit them, or they had surgery to get that amount of settlement so I do believe that type of advertisement is misleading, and I'm real concerned about that. MR. LEMMLER: Thank you. Yes, sir. I

MR. GOFORTH:

ASSOCIATED REPORTERS, INC. [phone]

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I think that is an extremely valid point. I did this and that and I need this

result, and that might be the most important thing for a client. MR. LEMMLER: I'm going to point out one distinction with what you just said. I think this

prohibits you from saying public communication or advertisement. The rules

specifically permit you to tell prospective clients upon request. information. MR. GOFORTH: (Inaudible). MR. LEMMLER: There's a specific rule that deals with that. Anyone else? MR. BURGESS: I'm sorry to keep commenting on these rules. When you look at these rules, this Other states have Yes, sir. That sort of

is probably (inaudible).

specializations; we do not have that now. It would appear to be the content of this rule and all the rules is to say, "Look, you can't mislead anyone about your abilities.

ASSOCIATED REPORTERS, INC. [phone]

45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 You can't act like you can try a case if you can't. You're going to act like you're

going to handle the case" and you can not. In my opinion, it punishes those that are doing the right thing. If we keep the case

and we try the case and we present the case and we get a good judgment, why can't someone say, "Look, I've done it. through court. I have done it." I've gone Because

without that, I have looked down at folks that can't do it or won't do it, and because we don't have specializations, quite frankly, this may be the only way to communicate your abilities to someone before they already hired a lawyer, and by the time they're to your office, it's too late. They

made their judgment on who it will be off the advertisement. By the time they are in

somebody else's office, it's too late; they made their judgment on who may be a quality lawyer off the advertisement, and I don't think -- but a lot of times, I would say if somebody is working harder than you and playing by the rules and they received judgments, they ought to be able to say, "I

ASSOCIATED REPORTERS, INC. [phone]

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 received these verdicts"; they ought to be able to say that they reach their success, not to be looking down at those who aren't going to do the work. that. I really believe

We all say that this is to prevent

misleading, which is fine, we shouldn't have that, but there ought to be a way that someone should be able to legitimately talk about their successes to the public before they make the choice to go to someone else's office. I honestly believe it punishes

those for all these years of having talked about, "I received this, this dollar settlement" -- you ought to be able to say a factually true statement that they are successful. MR. LEMMLER: One remark with respect to what you just said about specialization. there is a rule. Further down,

There is a provision that

actually provides several different types of specialization. right now. MR. BURGESS: We don't have that now. I think that's what we have

ASSOCIATED REPORTERS, INC. [phone]

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEMMLER: This proposal will allow that. ma'am. MS. BILLEAUD: I think what Clay said is absolutely true. I would actually take it one step I think that advertising is a very I Yes,

further.

important source of consumer education. think that if lawyers are able to say in their advertisement that something is a standard of a person, I think that would

prompt clients to ask a question like that. So if you're saying, you know, I have this many cases that went to Jury Trial, Clay's saying it, I'm saying it, everybody is saying, then naturally a client would think that is an important aspect. I think that

you know, you don't want to cut off a very important part. UNIDENTIFIED PERSON: I have a question. MR. LEMMLER: I'm sorry. MR. GORFORTH: (Inaudible).

ASSOCIATED REPORTERS, INC. [phone]

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEMMLER: Let me clarify. Maybe I can. The Board

of Specialization does not recognize that as a per say specialization. Although, they

plan of legal specialization that they use, currently allows you to state truthfully that you have some sort of other certification with the certified agency that permits yoy to claim that certification, but it's not a sanction specialization under the plan of specialization. UNIDENTIFIED PERSON: I hate to get off the subject here, but does the State Bar -- does the Supreme Court -- the word specialization approve certain certification -MR. LEMMLER: The claim of legal specialization section 6.2 that's actually cited in the proposal basically permits that. As long as

you're very clear with the certifying agency and stating that is not certified by the Louisiana Bar of Legal Specialization. MR. GAY: Phelps Gay. The rules provide that you

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49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can advertise once that certifying is approved by the Louisiana Bar of Legal Specialization, and today, I don't think civil trial advocacy under the National Bar Trial Agency has been approved even though there is a U.S. Supreme Court decision. think that's the answer to your question. Right now, it hasn't been approved by the Louisiana Bar of Legal Specialization. I I

just want to make one comment about the past successes and the money question. This kind

of goes back to the beginning of what I had said. This is not new or radical, and it's

in the ABA comments, and the rational and you make a very compelling case on the consumer side, one, if you advertise a particular sum, in other words, if it's a judgment or a sum, it is because it's only related to the particular facts of that case, and the person who is receiving this advertisement doesn't know that. And as you

say, it may be a good result or it may be a poor result, but it doesn't -- it's apparently misleading as it leads to the belief you did it in that case, but Richard

ASSOCIATED REPORTERS, INC. [phone]

50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Broussard is going to get you five million dollars in the next case and so of many jurisdictions have taken review altogether. MR. BROUSSARD: I deem it as a problem with what I'm proposing, but I think it's better that it's the same way that you make a recommendation. If you've got an attorney -- someone calls you up from Illinois and says, "I've got a case down in Houma for a guy that got hurt on a boat, who do I send them to?" Well, I

can tell Mike St. Martin because he's got many, many big judgments down there. I

mean, because you know that that person had actually obtained judgments in that line of work. MR. DURIO: Buzz Durio, Lafayette. Has Florida had And

any experience under that subsection? what's the litigating experience? been 11 years? MR. PLATTSMIER: Chuck Plattsmier.

Has it

My understanding is

that Florida has had this rule that you have to turn the advertising into them in advance

ASSOCIATED REPORTERS, INC. [phone]

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or at least a part of it, and so they have a mechanism that sort of stuff, for the attorneys, and most of the experience that Florida want to comply -MR. DURIO: Well, I guess that's the chilling effect of it. I understand that. Let me use

somebody else's name, Sam Gregorio who has challenged that successfully -MR. LEMMLER: These are the rules. Florida's rules. These are

I don't know the answer.

These particular courses were not taken out of the advisory to my remembrance. I just I

looked at them a couple of days of ago. don't think these particular aspects were remote. Yes, sir, in the back. MR. BROUSSARD: Zack Broussard. Is there anything in

place now with the attorney where there's any way we can work with State Bar to make sure we are in compliance with them? MR. LEMMLER: In a matter of speaking, right now, the Bar, which is what my function is primarily,

ASSOCIATED REPORTERS, INC. [phone]

52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which is the Ethics Advisory Service. We

provide non-binding informal occasions to members of the Bar, with respect to them, respected conduct, which includes advertising. A lawyer can submit a proposed

advertisement to us, and we'll give them an unbinding opinion on whatever it is they proposed to run so this is -- we aren't doing that, but we do work with the lawyers rather than with the advertisement agency. MR. GREGORIO: Just a couple of comments. If a

settlement is mishandled and a thirty million dollar case is settled for one million dollar, what's the difference between a case that went to the Court that's a thirty million dollars case being mishandled and getting a judgment for one million dollars? My other concern would be

the comment about consumers in sorting it all out. All I can tell you is my personal

experience is that often times when we see someone has an advertisement, run of the mill, and I'm saying it that way because I'm not putting out advertisement for myself, my

ASSOCIATED REPORTERS, INC. [phone]

53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 impression, my experience is this, they're settling those cases, never looked at the file, has information in the file that has not been acted on, and their office didn't even know what's in the file and the public is being hurt. The other observation from

that experience is that, that there's no lawyer or paralegal, someone who runs up to the house who signs up a contract, there's no lawyer in the file. The only conclusion

that I come to this case comes to Shreveport area handled out of New Orleans, and the client thinks that the lawyer is in Shreveport, but they can not reach the lawyer. I think these problems are real,

and I think that's important for these rules, but these are real problems that we are experiencing in our state. I personally think I have had multiple cases and complained about these types of advertisements where people say, "I'll get my money." There are severe complaints for

allowing that type of advertising for the public. I think those are real problems.

So that's my experience.

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54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEMMLER: Ms. Billeaud. MS. BILLEAUD: I understand those concerns. disagree with them. I don't

My concern, though, is

penalizing lawyers who report truthfully their actual results. Maybe there are some

other disciplinary actions to take care of those. MR. BROUSSARD: Sam, I agree with almost everything you said about your input and with your experience and all that. I've tried "X"

number of cases and got "X" number of results and settled "X" number of cases because what they're looking for is someone who has successfully handled, the courtroom experience, to represent themselves. MR. GREGORIO: (Inaudible). MR. BROUSSARD: Let's say that you were the trial lawyer who made the opening statement and the closing argument and you got the judgment -MR. LEMMLER:

ASSOCIATED REPORTERS, INC. [phone]

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Let me just say this folks, we've got ten rules to go through, and we've been through one and a half, thus far. your comments are excellent. All of

Maybe with the

comments that get to be more point, counterpoint. If you want to save that to

the end or you want to put that in writing to us, we're happy to get them, but I really think we need to kind of push forward and get to the heart of these rules and focus on each point that -- yes, sir. MR. ALLEN: Aaron Allen from Lafayette. Mr.

Plattsmier, I'm wondering how many complaints are you getting from the citizens of people who are misled by advertising? MR. PLATTSMIER: I'm going to try to answer your question as accurately as possible. Our precedence

is that the rules has currently (inaudible) In the last ten and a half years, with the disciplinary counsel, we have seen a fair measure of complaints that have come in. MR. LEMMLER: Let's try to get to the comments on some

ASSOCIATED REPORTERS, INC. [phone]

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 more of the rules. Let's just go forward.

Examples of prohibited statements about legal services. Compares the lawyer's

services with other lawyers' services, unless the comparison can be factually substantiated. now. That's in our rule right Yes, ma'am.

Contains a testimonial. MS. BILLEAUD:

I believe that if I would submit to you, actually, I'm a young lawyer, but I do have some clients that I am not misleading. Perhaps it would be better to allow me to submit those testimonials to the committee to verify the authenticity. Not all my

clients would prefer not to be named because they are employed -- but, again, verify the authenticity of those statements and make sure that they're not misleading, but to completely ban -- again, include information, accurate information that helps differentiate accurate my services from someone else, I think is -MR. LEMMLER: That's a good point. messenger. I'm just a

I'm not here to debate the rules

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57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 so that's a good comment, but I'm not going to come back with, "Well, no, we're going to need that," so anyone else wants to comment on the part about testimonials? Includes a portrayal of a client by a non-client or the reenactment of any events or scenes or pictures that are not actual authentic. Includes the portrayal of a

judge, the portrayal of a lawyer by a nonlawyer, the portrayal of a law firm as a fictionalized entity, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise implies that the lawyers are associated in a law firm if that is not the case. Again, that is all based on the false

deceptive or misleading, which is our basic rule now, and the basic rule here. Depicts the use of a courtroom. Resembles a legal pleading, notice, contract, or other document, already in our rules now. Utilizes a nickname, moniker,

motto, trade name that states or implies an ability to obtain results in a matter. Note

that distinction, the one would that would

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58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 imply the ability to obtain results not necessarily every nickname, but one that would imply ability to obtain results. Fails to comply with Rule 1.8(e)(4)(iii), the new Court's rule about advertising in advance to getting clients if you can supply financial assistance or provide costly expenses up front, things of that nature. That's in our rule right now. I

7.2(b)(2) -- you've got a question. saw a movement so I was trying to react. MR. DURIO: Buzz Durio, before you get off that list, the act of portrayals, "G." Why

aren't you to speak to judges and lawyers? I'm thinking of money portrayals, insurance adjusters, that are probably misleading. MR. LEMMLER: I don't know that it's restricted to that. I think it says "includes the I think if it's

portrayal of a judge."

potentially something else, it would be false, deceptive, or misleading, but this is something that is clearly indicated under the rules as prohibited.

ASSOCIATED REPORTERS, INC. [phone]

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7.2(b)(2), any factual statement contained in any advertisement or written communication or any information furnished to a prospective client under this Rule shall not, again, be directly or impliedly false or misleading; be potentially false or misleading; fail to disclose material information; be unsubstantiated in face, or unfair or deceptive. And I will note to you

that Florida has just struck this entire provision from its newest rules so you may not see this at some point in the future. MR. BURGESS: That is anything like the rule before to analyze by this -- strike it, too. MR. LEMMLER: Moving forward. MR. DURIO: I have a question. MR. LEMMLER: Yes, sir. MR. DURIO: Can you go back one more? 7.2(b)(2),

why would any lawyer want to advertise or why would any committee allow a lawyer to

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60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 advertise in a way to concluded it -- or what public purpose would it serve to go out and virtually to conclude false, misleading, potentially false, misleading, or deceptive? MR. LEMMLER: We're not trying to debate here. I

think that the reason that they may have struck this particular revision is that it's fairly subjective. There are other

committees that do say false, deceptive, or misleading very clear, but I think this is impliedly correctly, words of that nature. I have no reason -- I don't know exactly why they did it; I'm just speculating that because there are other places in the rules that do still prohibit false, deceptive, misleading forms of communications. MR. BURGESS: When it says indirectly, it almost implies that you can't do factual statements, directly, indirectly. MR. LEMMLER: That's noted. Moving forward again. A lawyer

7.2(b)(3), Descriptive Statements.

shall not make statements describing or

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61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 characterizing the quality of the lawyer's services in advertisements and 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. can tell them. So if people ask you, you

If they are your clients, Yes,

you can give them this information. sir. MR. BROUSSARD:

This lawyer's services complies with the highest standard of ethical conduct would be prohibited by this rule. MR. LEMMLER: Supposedly it would. MR. BROUSSARD: So what public interest would a lawyer saying, "I'm not one of these shoddy lawyers who's going to try to get you a good settlement." MR. LEMMLER: Without trying to debate with you, simply, who determines that? Who makes the

determination whether that lawyer is

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62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 complying with the highest ethical standards other than the Supreme Court, and that's typically done in a disciplinary proceeding so who can say, "I do or I don't." MR. BROUSSARD: But it does help a consumer who is concerned about that issue. MR. LEMMLER: But is there truthfulness to that, I suppose. MR. BROUSSARD: It doesn't have to be true. Then how

would the advertisement in 30 years of practice, I've never been examined by Mr. Plattsmier or prosecuted by his office. That wouldn't work there either. What I'm

saying is true descriptive statement, doesn't this prohibit untrue descriptive or misleading statement. If it is absolutely

true, descriptive statement or go into -MR. PLATTSMIER: But there is a distinction between when you're an absolutely true information. MR. BROUSSARD: What's that?

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63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PLATTSMIER: I have been a lawyer for 30 years, and it's an absolutely true statement, and there's nothing -- there's nothing in this room that says, "I've been a lawyer for 30 years, and I'm never been subject to discipline." This says you can't make

statements describing when you're characterizing a law firm of your service. "I am the single most ethical lawyer on the planet. Hire me, I'm Richard Broussard,"

it's probably something that we would say that you can't say. MR. HERNANDEZ: A lawyer with the highest quality of excellence by the way you practice law. I

mean, if that's what you believe, you know, it's hard to say and to qualify because you're not saying anybody but you believes that statement. That's not misleading.

MR. BURGESS: I think it's very, very wrong. It seems

to me you can say, "I'm going to use my best efforts. the case. I'll have two lawyers working on If necessary, I'll have three.

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64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'll work after hours if necessary. Arguably, that is a descriptive statement on the quality of my services. It appears to

be very broad, very, very broad. MR. LEMMLER: 7.2(b)(4), Prohibited Visual and Verbal Portrayals. Visual or verbal descriptions,

depictions, or portrayals of persons, things, or events shall not be deceptive, misleading, or manipulative. Again,

building on that false, deceptive, or misleading basic under the rule. 7.2(b)(5), Advertising Areas of Practice. A lawyer or law firm shall not

state or imply in advertisements or communications if the lawyer or law firm currently practices in an area of practice when that is not the case. Again, something

that would be false, deceptive, or misleading. You don't do personal injury

work, you shouldn't be saying you do personal injury. Yes, ma'am.

MS. BILLEAUD: At what point can we then say we do -we get a personal injury? And this, again,

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