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)

65 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 considering a new lawyer, just starting out, you know, if you're planning to or you're otherwise competent to practice in an area and you're interested in getting more cases in that area, could you not advertise your interest in entering that area? MR. LEMMLER: I think this was discussed in the committee at some length. I think the

decision or I recall some of the comments were essentially that as long as you state truthfully that you are intending to practice in the area of personal injury or now practicing in the area of personal injury, you're misleading someone saying, "I have 35 years of experience to personal injury cases," when you just got out of law school. I think there's a distinction -MS. BILLEAUD: I think that comes by experience stuff that makes me not -- but, yes, okay, so if you have one personal injury case, you can say I -MR. LEMMLER:

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66 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 Again, whatever is not false, deceptive, or misleading, and the statement is true, then I think you would be safe. Broussard. MR. BROUSSARD: I knew that I had a conflict at 6:30 so I did my written -- I'd like to give you -MR. LEMMLER: Thank you. MR. BROUSSARD: And I'm going to leave a few extra copies here, and I appreciate the opportunity. MR. LEMMLER: Thank you. I guess I'll give it to the Mr.

court reporter, and she can attach it as an attachment to the record. MR. BROUSSARD: Probably the first comment here, probably would be of interest to you, and that I'm very much impressed with the work of the committee, and generally favor what the committee has done, but I do have some very specific comments about the changes that I think are important.

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67 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: Thank you, sir. forward again. Let's try to move

7.2(b)(6), Stating or

Implying Louisiana State Bar Association Approval. Does anyone have any comments You can not state

with respect to that?

that you have a Bar Association approval, any particular act; there's no seal of approval on any of these things. You're

getting under the provision of the rules, and advisory opinion with respect to the advertisement but not approval per say. 7.2(c), General Regulations Governing Content of Advertisements. And this goes

through the various list, Use of Illustrations, Fields of Practices, and so forth. 7.2(c), Use of Illustrations.

Illustrations, including photographs, used in advertisements shall contain no features that are likely deceive, mislead, or confuse the viewer. Again, it goes off of deception A lawyer may communicate the

or misleading.

fact that the lawyer does or does not practice in particular fields of law. And

this is getting to the comment that was made

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68 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 earlier about certification. Lawyers shall

not state or imply that the lawyer is certify, board certified, an expert, or a specialist, and I note that Florida has just added the word, "expert," to their rules. This is part of proposal. rule right now. It's part of our

We were actually ahead of

them on this so they just added that into their rule. Except as follows: Lawyers

certified by the Louisiana Board of Legal Specialization, essentially, which they are now. Lawyers certified by organizations

other than Louisiana Board of Legal Specialization or another State Bar and certification by another State Bar so there are three different sets of certification are all permissible under these rules in the fashion described. MS. BILLEAUD: I have a question on this. What is it

between if you're saying you're a specialist and you're saying specializing? MR. LEMMLER: No difference. MS. BILLEAUD:

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69 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 if you say, "I specialize in trade laws," could I say, "I focus on them." mean, what -MR. LEMMLER: Our opinion is has been thus far with the advisory service, and I don't know -Chuck's view of that with ODC. I assume I

it's pretty much the same, that if you're going to use the words "specifying," or any durative of those words saying that you're an expert, or expertise, or you're a specialist, or you specialize that, those things are prohibited. If you want to say

you focus on an area, you concentrate on an area, this is the type of law you're currently practicing, I think all that's permissible because it's true. Moving forward. 7.2(c), Advertising

lawyers must disclose whether the client would be liable for costs and/or other expenses in the addition to the fee will provide information about fees. do that now. MR. DURIO: My question is, can you actually tell You have to

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70 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 client that he's not liable for costs? MR. LEMMLER: Yes, you can. way or the other. You have to be clear one If they want to be You should tell

responsible, you tell them. them that.

The distinction of because under

the rule, you can't advertise, an advancement to the client, that they will not be responsible -MR. DURIO: Under this proposal, you would be able to advertise that the client will not be liable -MR. LEMMLER: No, sir. No, sir. The previous

provision, we cited 1.8(e)(3)(k), I believe, was the number. That's in our rules right

now as part of the financial assistance where you can not advertise that in advance you will be waiving costs and expectance and so forth. MR. DURIO: Well, shouldn't it say that in here? MR. LEMMLER: Well, it's referenced higher up in the

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71 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 rule. Any other comment on this? You must

honor the fee quoted in the advertisement for a certain period of time. already in our rules. Again,

Pay for the You can't have

advertisements themselves.

someone else pay for your advertisement for this proposal. Disclose that the matter

would be deferred to another lawyer if that is the case. violate. Information presumed not to

These are what we calling the safe The newest amendment

harbor provision.

Florida has essentially flipped the order. Right now, the safe harbor -- you know, under this proposal, but under Florida's new amendment, the safe harbor comes first. MS. BILLEAUD: Excuse me, did you skip one? MR. LEMMLER: Well, we're not actually going through it word by word on some of these things. We're going through the general topics. there's a particular passage you want to talk about, we certainly can. MS. BILLEAUD: It's 7 -If

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72 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: 7.2, this is probably -- wait a minute. We went back. Safe harbor, 7.2(c)(12). It's There's a long list of

way in the back.

things that you are permitted to do that are assumed to be acceptable and permissible, but you do just these things. comment? MS. BILLEAUD: I just have a question. The last one, Is there a

(J), "photograph of the head and shoulders of the lawyer or lawyers," you can't have full body? MR. LEMMLER: Well, you can now in Florida. amended that. They just

So they've accepted that,

that you can have a whole lawyer as opposed to a half of lawyer. So that's been I will

addressed already by Florida.

suspect we will be looking at that with the committee as well. Florida has also

expanded the list of illustrations that are acceptable in addition to the Lady Justice. We can have the Statute of Liberty, the American Eagle, and so on and so forth and a

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73 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 number of other things. So some of these

things may have already been addressed, but please, make your comment and make that part of the record. All right, moving forward, Bill. These

are just all the safe harbor provisions. We're just going to skip forward unless some has a comment to this. 7.3, Advertisements in the Public Print Media. I'll note for you now before I even

get started with this that Florida has struck virtually all of this rule with the exception of saying this is also substantive to the requirements of Rule 7.2. They got

rid of the disclosure statement, but under our proposal, you would make this part of 7.2, you would have to comply with the general provisions of 7.2 of not being falseLY, deceptive or misleading, but you also have and contain a statement saying the hiring of the lawyers are an important decision that should not be based solely upon advertisements, but as the slide points out, you're not required to put that where your add contains no illustrations or other

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74 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 information other than what's listed in the safe harbor section of 7.2, and you're not required to put this in written communications that are sent in compliance with 7.4. MR. DURIO: Where do you see this? MR. LEMMLER: 7.4, you're required to put that as in advertisements so we will go forward with that? MS. BILLEAUD: I have a question. MR. LEMMLER: Yes, ma'am. MS. BILLEAUD: Is public print media defined anywhere? MR. LEMMLER: I'm sorry? MS. BILLEAUD: Is public print media defined anywhere? MR. LEMMLER: I don't know that it is. good comment. So that's a

I don't know that I know that

there is a definition specifically defining

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75 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 public print media, other than 7.1. I

think it mentions the permissible forms of advertising. Through the public print media

included but not limited to print media, such as, telephone directory, legal directory, newspaper, or other periodicals so I suppose in some fashion it is defined. Moving forward, please. 7.4, Direct contact with prospective clients, broken down into two major categories, solicitation and written communication, essentially what we have right now. The notable changes in the

proposal that we'll be changing or recommending that the phrase, "prior professional relationship," be changed to prior lawyer/client relationship, and then prior lawyer/client relationship, is further defined in a portion of 7.3(a) -- it proposed 7.4, excuse me, as something to exclude relationships in which the client was an unnamed member of a class action, a cast of thousands, someone you have never met before; you can not basically solicit that person in person claiming that that

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76 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 person is part of the lawyer/client relationship that are not even listed on the pleadings. You never had that -- you've

never had any personal contact with that person. Moving forward.

7.4, Written communications contains the same prohibitions as 7.3(b), this is, I think, talking about target of written communications. Communication must abide by

7.2 indicating the required information as stated about hiring -- but I'm getting lost here so let's move forward. Copy must be

filed with the LSBA provided by Rules 7.7. We'll get to that in a minute. No written

communications to someone unlikely to exercise reasonable judgment in employing a lawyer. If contacting a perspective client

about a specific occurrence, it must contain the phrase that, "If you have already retained a lawyer for this matter, please disregard this letter. Stating that "the

lawyer will not handle the matter, if indeed that is the case, and no revelation of the underlying legal matter on the outside of the envelope. This is to tell you something

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77 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 about your serious personal injury case. Please open the envelope." nature. Yes, ma'am. MS. BILLEAUD: I get a lot of information materials. They're not necessarily -- they're mainly newsletter that kind of thing. MR. LEMMLER: Newsletter are under a special section. We'll get to that in a minute, but, again, you're falling into false, deceptive, misleading category, but we'll get to the newsletter in just a moment. I think, again, if it's somebody you're sending these to that you already have a past lawyer/client relationship with and I think you're free to do so without complying with a lot of this stuff. This is part of the solicitation Nothing of that

some of you never met before. MS. BILLEAUD: Some of these people I have a lawyer/client relationship with, some of them I've never met before. They may have

got my email or business card or -MR. LEMMLER:

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78 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 Perhaps your stationery. MS. BILLEAUD: Yes. MR. LEMMLER: Okay, moving forward. 7.5,

Advertisements in the Electronic Media other than computer-accessed communications. this would be basically TV and radio. And In

general, computer-based ads are subject to Rule 7.6. All of the ads in the electronic

media included but not limited to television and radio are subject to the requirements of 7.2 not falsely, deceptive, or misleading. Appearance on television or radio, the prohibited things. Television or radio

advertisement shall not contain any feature that is deceptive, misleading, manipulative, or that is likely to confuse the viewer or listener. Any spokesperson's voice or image

that is recognizable to the public in the community where the advertisement appears. Lawyers who are not members of the advertising law firm speaking on behalf of the advertising lawyer or law firm or any background sound other than instrumental

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79 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 music. MR. BURGESS: I have a comment. I'm sure the Rules

are intended to prohibit this for the period, but would this prevent someone from hiring a voice to read their commercial, to read their radio ad, hire a local DJ to do run radio ad, you know, KLFY, you know, advertising at the football game. It seems

to me the rules are intended to prevent a non-lawyer from acting like a lawyer, but, nonetheless, it seems to me that this would have a chilling effect on who the spokesman really is and to prevent local radio personalities from reading your advertisement on the radio; it would also prevent you from possibly also hiring a professional voice that sounds better, that's clearer than you and routinely does commercials in a specific area just because he sounds better than you; the guy here in town is hired on as jockey does; he does ten commercials for different clients -MR. LEMMLER: Thank you. Perhaps, but section 2 does

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80 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 provide a permissible content, and one of those things I'll skip ahead to, and it says that, "Television and radio advertisements may contain non-lawyer spokesperson speaking on behalf of the lawyer or law firm, as long as the spokesperson is not recognizable to the public and the community where the advertisement appears, and that spokesperson shall provide a spoken disclosure identifying the spokesperson and disclosing that the spokesperson who is not a lawyer. MR. BURGESS: That's exactly what I was talking about. Maybe some local guy that does the motor sports on the local radio who "known to the public or the community," for doing the radio advertisement unless he says, "And don't forget I'm whatever DJ on the local radio station," why does it specifically prohibit local radio personalities from reading your commercial on the air unless they go off on this disclaimer, "Remember, I'm such and such." It's a small town. All

I can think of is the football games and the basketball games.

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81 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: I will note in respect to your comment that the amendments of Florida, the Florida Bar was recommending that that portion would be changed to allow some latitude and say that the spokesperson should only need to identify themself when it's not apparent. The Florida Supreme Court actually said, "No, we're not changing it. is unequivocal. We think this

It's very clear, that

someone says their not lawyer, there's no misunderstanding. with you. I'm not trying to argue

I'm just giving you some

background so that's been upheld in Florida as we speak. MR. GREGORIO: Let me ask Clay, and maybe I can understand your comment. One of the

purposes of this section is to prohibit Captain Kirk from coming down here and telling people that they ought to hire his law firm. As I understand your comment,

you're not opposed to prohibiting that type of -MR. BURGESS:

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82 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 Not at all. MR. GREGORIO: Your concern is the local -MR. BURGESS: That's right. Prevent us from hiring

local talented persons to do these things. MR. GREGORIO: I just wanted to make sure I was clear, and the record was clear. MS. BILLEAUD: Just to expand on what Clay has said about a radio ad, it's open up, obviously not a lawyer, obviously not me, talking about me, just my voice, identifying myself to make the DJ who's introducing the whole thing, and say, "I'm not a lawyer spokesperson for Susan Billeaud, da, da, da, da, and here's what I've got to say," I mean, it's so obvious that they're not saying, "I'm a lawyer," or any of those things. MR. ALLEN: I just want to make sure I'm reading this correctly. bit off of this. I'm going to jump a little I'm not interpreting this

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83 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 about the celebrity or local person, but it seems to me to be saying, the non-lawyer has to not be locally recognizable and just identify himself as a spokesperson. And a

commercial you've got so many other things you're having to say, and you don't have time for all this stuff so I'm wondering if there is any consideration about how many of things you expect in here. MR. HERNANDEZ: It says that any feature that is deceptive, misleading, manipulative, or that is likely to confuse the viewer or the listener. Who designs that? The Committee?

And what is the penalty?

You know, a

feature about an ad is very complex, you know, and some are very simple, but they can have the same effect. If the ad has to

approved by this committee, you know, are they going -- you know, the rules are the rules that say this is, you know, how do you -- to me, that's troublesome to me because I think -MR. LEMMLER: Well, that's a good comment. Let me

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84 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 jump ahead for a second. is in place. The review process

I've alluded to this already,

will provide advisory committees, basically binding on the committee's part. Non-

binding, essentially, that we don't think that this is going to fit under the rules. Now, the lawyer is not constrained to follow that. I think it would be probably in the

lawyer's best interest to do so because under the provisions that you'll see later, there's a fining of non-compliance, that will be reported to the Disciplinary Counsel's Office, and the lawyer can go forward. You're not bound to us.

Ultimately, the Supreme Court is going to determine whether that fits under the rules of whether there's a problem under the rules, but the process is designed at least to give the lawyer some advance assistance with trying to interpret these rules and perhaps figure out whether it fits there or doesn't fit there. You know, our advice now

that we give people, is very conservative, but it's design to say, "Look, if you do this, more than likely you're not going to

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85 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 have a problem." We don't really tell

people to how to figure out how to push the envelope on the other end. So that's --

we're not going to decide, but we're going to try to give you some help and some advice. So, ultimately, only the Supreme

Court can only decide whether you're following these rules and whether you complied with them or not. Moving forward.

There's essentially two major ways you can do this. You can get the advisory

opinion, you're not required get the advisory opinion so I'm not going to really tell you what the law is. If you get the

advisory and opinion and you try to get the advisory opinion, you need to do that at least 30 days before you run it. Under your

scenario, it will probably work, but you're not required to get the advisory opinion. If you feel confident that the ad is going to run the way it is, it's okay, you can do it. MR. BURGESS: That's the whole point. feels confident? I mean, who

Am I to turn myself

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86 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 because I'm going to get in trouble? MR. LEMMLER: If you comply with safe harbor, then presumptionally you would. MS. BILLEAUD: Susan Billeaud. MR. LEMMLER: Yes, ma'am. MS. BILLEAUD: The safe harbor provisions are basically your Martindale-Hubbell Directory; is it not? MR. LEMMLER: That's part of -- yes, ma'am. MS. BILLEAUD: So I guess my question comes off of your last statement was, that is, I run an ad. You guys think it's outside the rule. While

my case is pending with the U.S. Supreme Court, am I prohibited from practicing law? I mean, am I disbarred at that point? livelihood is hanging on this. My

Particularly

when it comes to the current decisions or even prior decisions. I'm also concerned

about some people who run television ads

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87 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 invest thousand and thousand of dollars on these ads, and technically, they can run for years, and then suddenly, we're having these meetings, and then two months from now they're pulled. You know, those are the

kinds of things I'm worried about. MR. LEMMLER: Those are good comments. I'll try to

get back to that or at least reference that again when I get to it. Let's move forward,

and we'll actually get to the process in just a moment. Other permissible content, television and radio advertisements may contain images otherwise conform to the requirements of these Rules; 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 and experience of the lawyer or law firm, or -- and we've already talked about this, a non-lawyer spokesperson. 7.6 deals Computer-Accessed

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88 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 Communications, not TV or radio, essentially what I've talked about before, either internet presence or website or the other form, email, those are the two major categories. All of these are subject to

listing your location requirements as indicated in 7.2. You have to put a

bonafide office address or otherwise identify yourself. 7.9, and let's take the substantive -maybe the substance when we get into the procedural things, but we'll review the process and the filing process. 7.9, This

information provided upon request.

rule was actually just struck from Florida's rules, and "struck," is perhaps a strong word. It was moot up into 7.2, I think, It's now been made just a But if you're

actually 7.1.

general blanket exception.

providing information to clients upon request, they don't even need a special rule; it just says you can do it. Again, as

long as you comply with 7.2, and you're not being false, deceptive, misleading, but this is what we have in the proposal right now,

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89 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 and that clause has a lot of exceptions that allow you to send information to clients upon request. You can provide information

deemed valuable to assist a potential client, again, as long as it not false, deceptive, and misleading. An engagement

letter that any contingency fee contract, should have the word "sample," or "do not sign," on it. Again, designed not to May contain

mislead or confuse someone.

factually verifiable statements concerning past results. Must disclose intent to refer

to another lawyer or law firm if that's the case. MR. BURGESS: Assuming the information that are on judgments, pleadings, things like that, my understanding, would it be a violation on a website for you to say "Well, these are my past judgments." But will it not be

according to this rule for me to say, "If you want information about my past judgments, click here," because they are requesting information, and I can then lead them to where that information is. Do you

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