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)

EXHIBIT 10

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LOUISIANA STATE BAR ASSOCIATION ADVERTISING PUBLIC HEARING

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Public hearing on current and proposed Louisiana Rules of Professional Conduct regarding Lawyer Advertising and 11 Solicitation, held at the Loyola University Campus, Audubon Room of the Danna Center, New 12 Orleans, Louisiana, on November 9th, 2006, at or about 6:00 p.m. 13 10 14 15 16 17 18 Richard Lemmler, LSBA's Ethics Council 19 20 21 22 23 24 25 REPORTED BY: Gail F. Mason, RPR Certified Court Reporter Certificate No. 96004 William N. King, LSBA's Practice Assistance Counsel HOSTED BY: Richard Stanley, LSBA's Rules of Professional Conduct Committee

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BY MR. STANLEY: I want to thank everybody for coming out tonight. My name is Rick Stanley. I'm Chair of the Rules of Professional Conduct Committee, Louisiana State Bar Association. And tonight is the third in a series of public hearings that we're having on a proposed new set of rules governing advertising. The format briefly for tonight is I'll give some very brief introductory remarks following which Richard Lemmler, the LSBA's Ethics Council, will actually walk us through the proposed new rules. After that, we'd invite folks to give comments. State your name, where you're from and give comments about anything you wish to say about the rules in general. And if you have questions, we'll try to address them, although the purpose here tonight is not really for us to debate any of the finer points of the rules but to hear what you think of them. We're still in the comment process as you'll hear in a minute. Briefly by way of background, approximately three years ago there was a tremendous amount of impetus at least in some

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sections of the Bar to move forward and do some kind of revision to the advertising rules. And not to say there is a -- to say there's a split of opinion as to what ought to happen with the advertising rules is to say that it's really understated tremendously. There's some folks who believe that there's no changes that are needed at all. There are some folks who believe that there's an entire rewrite that is needed, and there are others that believe that something in between is what's called for. Prior to Hurricane Katrina, a subcommittee of the Bar Association went to Florida to meet with the Florida Bar to see how they were approaching their advertising rules. At that point, the process really stalled after Hurricane Katrina. The next thing that occurred of significance is that the Legislature took it upon itself to say that they were going to pass a set of advertising rules and make it a form of statutory regulation as opposed to a form of regulation under the Rules of Professional Conduct. I think after some negotiations between the Supreme Court and the Legislature,

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the Legislature ended up by passing a resolution asking the Supreme Court to appoint a committee to undertake a review of the advertising rules with the idea that the Committee would get back to the Court and the Court would make some kind of decision about this in spring of next year. And after the Legislature reviews what the Court does, then the Legislature would decide whether it needed to take any further action. Now, obviously, this raised and still raises Constitutional issues as to who ought to be regulating the Bar, the Court or the Legislature, but part of this is hopefully to be avoided by the process that we're following. The Rules Committee -- in the middle of this, the Supreme Court Committee asked the Rules Committee to take a look at the work that had already been done by our subcommittee on advertising. And the subcommittee on advertising essentially used the Florida Rules as the basis for the work that was being done on revision. So the starting point for

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virtually everything you see is the Florida Rules. And comments -- things that were pulled up from the comments are the Florida rules. The essential thinking was that Florida had a great deal of experience regulating advertising, that Florida had already litigated at least a couple of issues on the advertising front, and so if we followed the Florida format that we would at least be following something that had a track record of sorts. And I think that we were also influenced by the fact that New York largely followed the Florida model when they proposed their new rules, which have not yet been adopted. So that's our -- that was our benchmark for working. What we tried to do is go through the Florida Rules and where we could improve of them -- improve on them. Now, there is unquestionably a lot of stuff in here that some people are going to feel one way or another about. There were several rules that when they came up before our Committee were subject to a vote where it was passed by 5 to 4 or 4 to 5, you know. So, believe me, we had a lot of debate about these rules. And that's

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one of the reasons we want to have these public hearings is to hear what you guys have to say about it and, you know, bring that back to the Court. The process from this point forward will be that after we have these public hearings and collect these comments, the Rules Committee will meet, make one final review and then issue its recommendation up to the House of Delegates. The House of Delegates will then have an opportunity to vote on the new rules up or down. So the first political step, I guess, will be that this will go to the Bar Association House of Delegates. From there the Supreme Court Committee will make its final recommendation to the Supreme Court, and then it's essentially out of our hands. And the Supreme Court will do whatever it feels justified based on the record that's before it. And then, I guess, if the Legislature wants to do anything further after that, we'll see what the Legislature does. But the purpose of these meetings is to take the product that we have now and

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hear public comment on them either in support or in criticism of and to try to answer as many questions as we can. But I can assure you we don't have time to debate all of the niceties of the rules because, indeed, we're not here to debate. Some of us may be on the side that you are going to propose or the objecting side. Some of us are maybe on the supporting side. But a lot of these things were close votes. But that's essentially the introduction to the process and where we are. And I'll turn it over now to Richard who can take us through the rules and kind of give you an overview of the substantive changes. Richard. BY MR. LEMMLER: Thank you, Rick. At this point, I just want to do a few little housekeeping things before we actually get into the heart of the rules themselves or the proposed rules. Our public hearings are being transcribed. We have a court reporter here. So when you have a comment -- and let me make a statement about that before I go any further. The way we've approached it thus far, we've had two hearings

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so far. We've had one in Baton Rouge last week. Last night we were in Lafayette. We're here tonight, and we'll be in Shreveport next week. Thus far, we've actually gone rule-by-rule or at least a summary of each rule. And we have encouraged people to take their comments at that point, hopefully not too lengthy because we have ten rules to go through. Last night we got a little stalled on the first rule, and 45 minutes later we were trying to get to the second rule. So we sped that up a little bit and encouraged people not to stay for breakfast, and it worked. So I do want to encourage you to make your comments. I'd ask you to make your comment -- stand up, state your name for the record, make your comment and not really belabor the point. Again, we're not here to debate the rule. If you want to make something a little more extensive or you feel like you've forgotten something, you're welcome to do that, but you can also make it in writing and submit it the Committee. Right now we do have on-line an on-line comment form on the Bar website, LSBA dot org. There's a link on the page under

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news and developments that will actually take you to the rules -- the proposed rules, take you to a comment form and you can fill it out. And we're planning to put all those public comments on-line as well as the transcripts of these hearings. Let's see. Where are we? CLE credit. You get CLE credit for tonight, one hour or ethics. And we'll give you the number and so forth at the end. BY MR. HANTHORN: Will someone respond to our comments that we send in via e-mail or are they just gratuitous comments that will be ignored? BY MR. LEMMLER: They're not by any means gratuitous. I think the point of this whole process is to gather all of the comments. The Committee, I think, will be meeting at the end of the month to review all of those comments. If you have a specific question, we'll try to respond to the question. If it's just a comment or a remark about a suggestion, a substantive change or something of that nature, you know, if you want to respond to it, you'll

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get it. But primarily it's not going to be, you know, we think you're totally wrong. We're not going to agree with you or that sort of thing. We just want to know what you think, whether you like it or not. Okay. BY MS. ALSTON: Rich, you might want to explain to them how the Committee process works so that everybody understands that the Committee takes the comments very seriously and they're discussed at some length. BY MR. STANLEY: Yeah. In fact, just to sum up what Richard said, if Ethics 2000 is any guide, we did this same process in Ethics 2000. In the public hearing -- and we thought we had a really good set of rules. And in the public hearing process, we heard a lot of very good comments about the rules and issues that maybe we weren't even focused on in the Committee. And as a result of that, the Committee made several revisions based on the public hearings to the Ethics 2000 rules before they went to the House of Delegates and before

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they went to the Court. So the comments are taken seriously, and they are reviewed and very often do result in changes to the rules or at least a vote as to whether the rule ought to be changed based on the comments. BY MR. LEMMLER: Thank. Yes, this is a work in progress and by no means a done-deal. We're looking for ways to improve the product. We are on a slightly more accelerated timetable than we were with the Ethics 2000 proposal, but so be it. That's where we are. But, please, make your comments. The Florida State Bar experience, Rick has already alluded to that. As I told the audience last night, this is not designed to talk about a tour of alcoholic beverage establishments in the state of Florida. It's actually to talk about the State Bar in Florida and what they've done so far and, basically, why we chose this piece of work to propose as part of our own. They've had their rules in some form, basically the form that's there now with some revision. And by the way, they just

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revised their rules last week, so I'll be trying to incorporate some of those revisions into -- or at least noting the revisions with the rules as I go through them tonight. The committee is obviously, I think, going to be looking at those revisions as well. But their rules have been in place for about 11 years. That was one of the reasons why, I think, the committee chose that -- or at least the subcommittee chose that to go forward with as a product. Why re-invent the wheel. The other aspect of that is that Florida has a handbook, an 82-page handbook that includes examples, lots of explanations, lots of guidance with respect to what the rules are intended to mean, the application of the rules, the filing process and so forth. So we're intending at some point, I think, to also come up with a handbook, assuming whatever product of the rules goes through. So that was a good additional reason to go with the Florida rules. And, you know, again, why re-invent the wheel? Oddly enough or coincidentally enough, I believe that's what the State

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Legislature actually focused on in their legislation. They were looking at the Florida rules. What they were proposing is, essentially, what Florida is doing right now anyway. So they sort of meshed together. And, again, why change it? If that's what the Legislature was looking at, maybe that could also be part of the product and appeal to everyone. We've broken down the actual rules that we're going to be going through and the substantive parts. And there's a procedural component, so I'm going to go through the substantive part first and then we'll get to the procedural part second. We'll take a couple rules out of order, but I think it makes more sense logically to do it that way. Just comparatively, just so you can see what we're talking about if you haven't looked at these already -- let me ask that question now: How many people have actually looked at the proposal thus far? (A SHOW OF HANDS FROM THE AUDIENCE.)

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BY MR. LEMMLER: Okay. So most everybody here. That's great. What we have right now on the left, we have five rules. We're proposing ten. You'll note on the side-by-side comparison that's part of the materials that are in the back -- and, again, if you haven't gotten them already -- the current rules that we have in Louisiana have not been deleted in any real fashion. They mesh right into the proposal. We took great care with making sure that they fit into the proposal. Virtually, none of the words in the current rules have been deleted. The proposal really is just an admittedly augmented form of what we have right now. All right. Let's get right to it. Proposed Rule 7.1 -- this is just a general definitional rule -- Permissible Forms of Advertising. Basically telling you what the permissible forms are. Public media including print media such as telephone directories, legal directories, newspapers or other periodicals, outdoor advertising such as billboards and other signs, radio, TV, computer access communications, recorded messages the

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public may access by dialing a telephone number, and written communications set in accordance with Rule 7.4 which are effectively referred to as targeted written solicitations, direct mail. Rule 7.2 -- any comments about 7.1 before I go forward? (NO RESPONSE FROM THE AUDIENCE.) BY MR. LEMMLER: 7.2 -- and I'm just going to keep rolling unless you stop me. 7.2 is a very large rule. As you'll note from your side-by-side comparison, our existing Rule 7.1 actually fits into 7.2. All of the language that's in our existing Rule 7.1 has been put into 7.2 or already fit into what Florida has for their 7.2. It's broken down into required information, prohibited statements and information and general regulations governing the content of advertisements. I'll note for you that in the recent revision that Florida made to its rules, they have effectively flipped B and C. Their general regulations and permissible forms of advertising come now first before the

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prohibited information. Perhaps there's a psychological benefit. It appeals to people to see what they can do first rather than be told what they can't do anymore. 7.2: Required Information, 7.2(a): In all advertisements and written communications with the exception of whether it's a Safe Harbor communications, the name of the lawyer responsible for the content of the communication must appear as well as the location of the practice, a bona fide office location of the lawyer or lawyers who will actually perform the services advertised. Yes, sir. State your name, please. BY MR. HANTHORN: Scott Hanthorn, solo practitioner, and I work all over southeast Louisiana. I do only DWI work, and I do it in all the various locations. Does this require me to have an office in every parish that I work in? BY MR. LEMMLER: I don't believe. I believe it requires you to state the name of an office location with an advertisement.

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BY MR. HANTHORN: A location? BY MR. LEMMLER: Yes, sir. BY MR. HANTHORN: Now, further down here it talks about phone numbers. I have an 800 number, and I have a 985 number that I send out, a 225 number and a 504 number. Am I required to have an office in those three locations? BY MR. LEMMLER: No, sir. If you read the last sentence of (a)(2) it says: If an advertisement or written communication lists a telephone number in connection with a specified geographic area other than an area containing a bona fide office, appropriate qualifying language must appear in the advertisement. BY MR. HANTHORN: So what does that mean? BY MR. LEMMLER: If you don't have an office connected to that phone number, I suppose you need to say this is -- you know, no office location there or this is just a telephone

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number. I'm not exactly sure what that means, but I believe you're not required to have an office in that location. BY MR. HANTHORN: So I'd have to say something like here's my 800 number, call me for free. If Broadway screws up again, for your convenience here's a local number, because that's why I have all these back-up numbers, because I've had so much trouble with my 800 number. BY MR. LEMMLER: I understand. BY MR. HANTHORN: In order to just keep myself in business, I've got these back-up numbers. BY MR. LEMMLER: Ask the committee members present if they have a comment on this or an explanation, perhaps. BY MR. STANLEY: I think the point here is that if you have numerous phone numbers in different areas of the state but you only have one office, you'd have to footnote or asterisk and say no physical office location in this area.

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But you have a phone number in this area? BY MR. HANTHORN: But what if I do go physically meet people in that area even though I don't have an office under my name? I might borrow someone else's office or I might buy them a cup of coffee in a coffee shop. BY MR. STANLEY: That's the kind of thing we'll be able to talk to you about when you get to the submission of your advertisement for review by the Bar. BY MR. HANTHORN: But by then it's going to be too late because you'll have already put these rules into place. I need to stop you now before you destroy my business. Excuse me. BY MR. STANLEY: Well, I understand. And what I'm saying is, the point here is, if you don't have a physical office there, it may mislead the public if you're giving a 504 number and they think you've got an office in the 504 area code where they can come visit you. BY MR. HANTHORN:

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What if I will, in fact, drive to them, because that's what I do. My main office is in Mandeville, but I will drive to New Orleans to meet a client. I will drive to Baton Rouge to meet a client. I will drive to Houma and Thibodaux to meet a client. I'll buy them a cup of coffee in a coffee shop, and we have a wonderful time. So they don't have to come to Mandeville to meet with me. And it's a hell of a lot cheaper to buy them lunch than to have an office and a staff and all that stuff. BY MR. STANLEY: Well, I couldn't agree with you

BY MR. HANTHORN: So where am I misleading them if I'm going to their location to meet with them at their location as per the number that I have in that location? BY MR. STANLEY: Well, I think the rule as it's written -- and again -- simply states that you've got to qualify it, that if you're not there, you're going to come meet them there. And as long as you've stated what you do, I

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don't think you've got a problem with it. BY MR. HANTHORN: Okay. BY MR. LEMMLER: I don't think the rules require you to have an office simply to qualify why the phone number is there without an office. So say by appointment only or, you know, I'll drive to you or whatever you want. BY MR. HANTHORN: So if I would say convenient meeting places available in various locales? BY MR. STANLEY: That sounds appropriate. BY MR. HANTHORN: That will do it? BY MR. LEMMLER: And giving an ethics' opinion on rules that don't exist yet, it's kind of hard, but I think you're probably right. BY MR. HANTHORN: Well, once these go in, Rich, you know, it's going to be impossible to change them, right? BY MR. LEMMLER:

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Well, I don't know about impossible. Thank you. Ms. Alston, I think you were first. BY MS. ALSTON: Yeah, I'm not going to repeat any of the comments I made in Baton Rouge. BY MR. LEMMLER: Could you state your name for us,

BY MS. ALSTON: Elizabeth Alston. But the rule about a bona fide office, since this rule applies to any communication concerning a lawyer's services, it also applies to firm web pages. So, for example, Adams and Reese has offices in Louisiana, Tennessee, Mississippi, various states. And part of the practice of a large law firm is if they have overload work in one geographic location, they can utilize the lawyers and associates in another locale to catch up, help them catch up with that. But this type of rule prohibits a large law firm from sending business out of state to one of their other lawyers in another office to work on because they're not in the location of the

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lawyers in the Louisiana law office. BY MR. LEMMLER: I don't envision that. I don't see that rule, but we'll -- the comment is well-taken. It's on the record. BY MR. STANLEY: Yeah, we'll take a look at that. BY MR. LEMMLER: Any other comments? Yes, sir. Your name, please. BY MR. CHAPMAN: The name is Nathan Chapman. Let me tell you the context for my remarks. I actually work for an advertising agency. About 15 years ago, I went to do a print ad for a friend of mine who was an attorney at a law firm that specialized in social security disability. And they started asking me questions about whether the ad should be in the sports section or movie section. The more we talked for their niche, the social security disability claimants, we recognized they should be on television itself. And my first reaction was, oh, lawyer commercials. And I made a deal with them then, I'm only going to do this -- I

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have a good reputation for my work -- if I can do it with just as high a quality as any other work I've ever done for anybody else. And the firm, to their credit, said we've got a good reputation too, that suits us fine. And I started then. We did very well. And we did it as high a quality as possible. And I got reputation for that work. And I now do that in 135 cities around the country. And I can jump through any hoop that you give me. But my pet peeve is when there are rules that make it actually worse, you know, because I'm trying to do quality work. And I've got three comments on us that I want to go through today when we go through the different things. This is -- this is one of them. One of the things that's going on is that there's now national advertising firms clearly out of state will go to like the national cable. It's like CNN instead of like the local Cox Cable. And they're not putting this in there. And so it's really bugging my clients. So, for example, I have a client who's in Lafayette, and we do some advertising, you

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know, let's say, in Lake Charles. And so if we have to put in there his office in Lafayette, that's a little bit of a negative. And I guess that's why people don't -- I guess the attorneys in Lake Charles would like that. They'd say, hey, that's a Lafayette guy. But these big out-of-town firms, they're not doing it and they're signing people up. So it's kind of forcing the Louisiana attorneys to play by rules that you can't -- you can't enforce on the out-of-town firms. And those are the ones you'd really like to know. Those aren't even Louisiana attorneys. And they're probably just going to refer it out. I'm not sure we're solving a big problem here, you know. What's the justification we really -- I can see where the Lake Charles people don't like it, and that's just kind of an anti-competitive thing. You know, do they do good work? Do they have references, all those other things you ought to evaluate an attorney by. Why is the physical location of their office the biggest thing? BY MR. STANLEY: Why is the physical -- it's not

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the biggest thing. It's one factor that should be in the advertisement so the client can actually know where they can physically locate the attorney. And as to your point as to the out-of-town lawyers who are soliciting within Louisiana, there is some problem with that with respect to just the whole disciplinary process. You can't reach those attorneys if they're not licensed here. Now, there is -- if you read the rules carefully, there is a bite in here in that if that out-of-town attorney has solicited a client in violation of these rules, this rule says that ultimately if client doesn't want to pay the fee, he doesn't have to. The fee contract is going to be at issue. So there will be a sanction of sorts in here if a client is solicited improperly by the out-of-town lawyer. But what you pointed out is a multi-jurisdictional issue, and it is indeed a problem. And there's not a whole lot we can do. We can't stop television advertisers from taking ads from attorneys who are out of state. So, yeah, these may impose rules

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on Louisiana attorneys that are not imposed on an Illinois attorney who's advertising in Louisiana. BY MR. CHAPMAN: Well, my suggestion then would be, if that's what our goal is tonight is to give you suggestions -BY MR. STANLEY: Yes, please. BY MR. CHAPMAN: -- will be, like I have sympathy for this man who says, well, he wants to go in the entire region and now they're going to be less reluctant to call him. I don't think we're helping the public a whole lot. And so I would suggest that we skip this rule. Thank you. BY MR. LEMMLER: Okay. Anyone else? Mr. Bart, for the record, please. BY MR. BART: Okay. Morris Bart, New Orleans. And I'm going to have a number of comments, but I can't resist the occasion at this point to jump in on this one and put an exclamation

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point on what is the biggest problem with rules like this, and that is simply interpretation. When you have rules like this, the danger is in interpretation. And although we know you're very experienced with ethics -- and, Rick, we know you're very experienced and I've had 20 years of service on the committee of advertising. I think I have knowledge with it. Our interpretation of it does not necessarily mean that's the way the Supreme Court or some other committee is going to interpret it. And, specifically, this office, this physical office thing, in my opinion, it's an outdated concept. It really is protectionist type legislation. It came about when lawyers in their communities didn't like the fact that lawyers from outside their community were coming in and advertising and getting business without establishing an office in that community. And at one time, I guess a good point could be made that perhaps it is misleading to the public because they like to think they can go knock on the door underneath the shingle of the local lawyer. In the age of

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the internet and video conferencing and 1-800 numbers, this really is a very outdated concept. You know, as an example, we have offices in every city throughout the state, and we have a very high-tech video conferencing system. So, technically, a lawyer is present there. We have a virtual lawyer present in every office. And I think the public has accepted that. The public is used to calling 1-800 numbers. The public is used to going on the internet. Video conferencing has proliferating throughout the country and is widely used and even been accepted now by some courts who are doing plea bargaining and doing pre-sentencing proceedings on video conferencing. So this is being well-accepted. I think it's more protectionist litigation that's outdated. I can't resist giving an idea to the gentleman here. Easy solution is, I suggest you designate your car as your physical location. BY MR. HANTHORN: Is that acceptable?