Public Citizen, Inc. et al v. Louisiana Attorney Disciplinary Board et al

Filing 79

EXPARTE/CONSENT MOTION for Leave to File Excess Pages by Public Citizen, Inc., Morris Bart, Morris Bart L.L.C., William N Gee, III, William N. Gee, III, Ltd.. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Proposed Order Motion for Summary Judgment, # 4 Proposed Pleading Memorandum in Support of Motion for Summary Judgment, # 5 Proposed Pleading Statement of Uncontested Facts, # 6 Proposed Pleading Notice of Hearing, # 7 Proposed Pleading Request for Oral Argument, # 8 Exhibit 1-5, # 9 Exhibit 6-7, # 10 Exhibit 8 pt 1, # 11 Exhibit 8 pt 2, # 12 Exhibit 8 pt 3, # 13 Exhibit 8 pt 4, # 14 Exhibit 8 pt 5, # 15 Exhibit 8 pt 6, # 16 Exhibit 9 pt 1, # 17 Exhibit 9 pt 2, # 18 Exhibit 9 pt 3, # 19 Exhibit 9 pt 4, # 20 Exhibit 10 pt 1, # 21 Exhibit 10 pt 2, # 22 Exhibit 10 pt 3, # 23 Exhibit 10 pt 4, # 24 Exhibit 11 pt 1, # 25 Exhibit 11 pt 2, # 26 Exhibit 11 pt 3, # 27 Exhibit 12-15, # 28 Exhibit 16-20, # 29 Exhibit 21, # 30 Exhibit 22)(Reference: 08-4451)(Garner, James)

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BY MR. BART: Well, of course it is because your interpretation is as good as mine, is as good as Mr. Stanley's or anybody else. But if you think of your car as a physical location and read that rule, you'll perfectly comply. BY MR. HANTHORN: And the truth is it is, with a laptop computer, a portable printer, and pocket PC and a cell phone. BY MR. BART: And are you a lawyer that's regularly and routinely present in that physical location? BY MR. HANTHORN: I absolutely am. BY MR. BART: Bingo. There you go. BY MR. HANTHORN: I have literally signed up people at the last minute in Shoney's in Butte, went to the parking lot to type up their administrative hearing and filed it in Williams Boulevard Post Office three minutes before the close to save their driver's license. So he's

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absolutely right. My car is my office more than anything else. BY MR. BART: There you go. Problem solved. BY MR. LEMMLER: Are you suggesting that we amend the rule to include both vehicle and -BY MR. BART: Well, I just think there might be -BY MR. LEMMLER: -- vehicle identification -BY MR. STANLEY: These comments, I think, are all extremely helpful. I've been jotting them down. I mean, we've got -BY MR. BART: We need to recognize technology in today's society. I mean, every other industry recognizes it and embraces it. And the though of a physical office, I think, is an outdated concept. BY MR. STANLEY: I think it's a valid point. And I think -- you know, we want to get these but

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we want to also keep moving through this. BY MR. LEMMLER: Yes, Mr. Hingle. BY MR. HINGLE: Mike Hingle. I live on the Northshore. We may be overlooking the young attorney, the person that's trying to crack into this business. Advertising is allowed, and many people who didn't have the opportunity to market in the old-fashioned, whatever it was, market through TV and all the other electronic means. There are telephone books out there that you can get a half, three-quarter page ad for in the county parishes all over South Louisiana that are presented to me all the time, the Pelican Pages, some other telephone books that I don't even know and I don't even advertise in. But what happens if some young guy or young girl wants to invest $75 or $150 a month in those telephone books all over South Louisiana, and like this gentleman over here, they're willing to travel to go and get that business so they can have some money and they can earn some money to support their family and

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pay their $150,000 debt that it took them to go to Tulane? BY MR. STANLEY: I think as currently written, all they'd have to say is we'll come to you. Our physical location is here, but we'll come to you. But, I mean, I think we've heard everybody's point here that maybe the physical location idea is outdated and something that we need to revisit. BY MR. LEMMLER: Any further comments on this? Okay. Let's move forward. Thank you. Good comments. 7.2(b): Prohibited Statements and Information Overview. It's broken down into statements about legal services, misleading or deceptive factual statements, descriptive statements, prohibited visual and verbal portrayals, advertising areas of practice and stating or implying LSBA approval. And I think we have slides that go through one at a time on this. A lawyer shall not make or permit to be made a false, misleading or deceptive or unfair communication about the lawyer, the lawyer's services or the

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law firm services. I would note for you that in Florida's recent revision, they have removed the word "unfair." And I suspect that the committee will be looking at that since the ABA's general phraseology is false, misleading or deceptive and which is our current rule. I think that's the basic underlying rule probably for most of this. As the slide says, same as the current Louisiana Rule 7.1 except more enumerated than that. Any comment on this? Mr. Bart? BY MR. BART: Well, a couple things. First of all -- Morris Bart, New Orleans. Since you bring up Florida, I do not want to mention that my friends there tell me that the rules have just been liberalized and so has the interpretation. As a quick example, Florida has prohibited testimonials without regard to the content. They now interpret that to allow testimonials if the content doesn't deal with past results. So, in other words, if a client were to get on and say I recommended Morris Bart and recommend anybody see him for an

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injury case, that's permissible now under Florida's rule even though that's a testimonial. If a client were to get on and say Morris Bart got me $100,000, that would not be permissible. So I think Florida is more properly looking at the content as opposed to the style, which is my objection with the example you enumerate here because, you know, we all know -- and I'm sure the Committee has looked at it -- that First Amendment, protective commercial free speech, and as such, that's given a high accord and a high degree of protection, meaning that the state has to show a specific harm and then you can only prohibit that conduct with the narrowest means possible. The problem with your rule as proposed here is it's so overly broad that whenever you have broad bans, it does not pass Constitutional muster. So if you look at (b), for instance, contains any reference to past successes or results, that apparently the drafter simply deems that if you have a reference to a past success or result, that in and of itself is misleading, which a broad ban

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like that, again, I don't think will pass Constitutional muster. And then, which is as vague and overly broad as you can get it, or is otherwise likely to create an unjustified expectation about results. Well, now does that tell me what to do or where to go? It doesn't give me any specific guidance. I think what you're dealing with here is the style versus content issue, that this is a certain style that the drafter of these rules don't like, similar to if the Court were to decide that everybody that goes to the court must wear button-down shirts and regimental-striped ties, that's appropriate wear. You can't regulate style. It's appropriate to regulate content. But when you get into these broad standards like this, you can't do it. The second defect, which is an overall defect in all of these rules we might as well put on the table now is, the Constitution mandates that you have to establish a record. And there's case law holding that a record must be established in

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the state to show the harm before you enact these rules that restrict our right to commercial free speech on the First Amendment. Now, you were just enacting the Florida rules. I think it would be worthwhile for this Committee to realize that before those Florida rules were enacted, they did poling in the state, they did research, they did surveys, they spent hundreds of thousands of dollars doing a massive scientific study and research project to document the perception of attorney advertising among the citizens of that specific state. And then they drafted rules that they could back up with their records to show the harm. You're not doing that. I mean, having a session like this which is not really a public hearing. It's more an informational session which we get CLE credit for, that's not addressing any harm. You're not showing -you're not establishing a record. You're not showing any specific harm to the citizens of the state by advertising. To the contrary, Charles Plattsmier would tell you -- because for the 20

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years I was on the Bar Association Committee on advertising this would come up -- the push-pull that we would always go through is we would say it's not the rules, it's the enforcement of the rules. And then Plattsmier would truck down to New Orleans and come to our committee. And we would ask him, we'll say, now, how many complaints do you get on attorney advertising? And it way maybe one or two a year. And that's the way it's been for the last 10 or 15 years, so I would assume it's the still the same today. I can't imagine it's changed that much in the last year since I've been off the committee. And then we would say, now, with those committees, have you ever one time had a prosecution for an attorney advertising violation that you couldn't prosecute because the rules were too vague? The answer is never. Never in his history has he ever had a prosecution that he couldn't go forward with because the rules were too vague. If that were the case, it would be a different story. He would come here and say, look, guys, you've got to give me some rules with teeth because

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there's all these violations and I can't prosecute. But that's not the case. So let's look at it, because that's the problem we always had on the committee. If you don't have a record and you're not showing any harm to the citizens of this state -- and nobody, to be honest, is even interested among the citizens because it's old news. My God, it's been going on for 25 years or so. People get it. They understand attorneys advertising. It's not that special. And on the second hand, you -your own disciplinary counsel testified it's a non issue with me. I don't have any complaints. I don't have any prosecutions. I don't have any prosecutions I can't do because of these rules. Where is your record that will uphold if you have a Constitutional challenge? You couldn't just adopt the Florida rules. What are you going to do, say, oh, well, the harm to the citizens in Florida is the same thing here and that study was done 15 years ago? The whole thing is defective. And then specifically -- those are kind of general comments. But specifically

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just to -- here's a subline: Contains a testimonial. Well, the Supreme Court has mandated you have to look at the content. You can't do blanket bans. Well, you can do a blanket ban on a testimonial. We recognize that there can be testimonials that contain non deceptive truthful speech. When you do a blanket ban on all testimonials regardless of the content, that's unconstitutional. And then here's one of my favorites here, No. 4: Prohibitive visual and verbal portrayal. That really gives me a lot of guidance. Visual or verbal descriptions, depictions or portrayals of persons, things or events shall not be deceptive, misleading or manipulative. Persons, things or events. So I don't know. You do an ad. It could be interpreted any way. Who is going to staff it? I mean, we're not a rich Bar like Florida is. So are we going to hire law clerks? Are we going to have law students? Are we going to have secretaries that are going to look at all these ads and make the decision? I mean, that's something you have to grapple with. BY MR. LEMMLER:

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Look at (c)(5): Fees paid, that's what -BY MR. BART: Well, it's very expensive. And, Richard, when you look at Florida, look at the Florida experience, because I've been there from the very beginning. And Florida was flabbergasted when they first put their rules into effect 15 years ago at the cost of it. They were just overrun by the costs. And they were doing the very things I'm saying where they had secretaries and volunteer law students who were looking at these ads trying to determine if there are violations and then giving it to a committee of a few lawyers that would go over to the Bar once a week to meet and look at the problem. So it's only fair to us if we try to comply with these rules and pay the fees, as you all have mentioned, are very expensive that you're going to have a very astute system. And I think to preserve the credibility of this system, if these rules are passed, the Supreme Court or somebody needs to assure us for the money we're spending that there's going to be

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people that look at them. And they also need to realize, which I think is one of the most significant comments I'm going to make tonight, that before you pass these rules you better have a record and you better talk to Plattsmier to see what kind of violations you have, because if you don't have a record, you're wide open for attack. BY MR. LEMMLER: Thank you. Let me take two general points of, I guess, information with respect to what you said. I'm not trying to debate you at all. I'm not sure what the enforcement policy in Florida is right now regarding the newest revision with respect to testimonials since it just went into effect last week. I'm not sure exactly how they're enforcing it yet. But the new revision does still specifically include the testimonials as a prohibition, something you cannot do. BY MR. BART: But it's interpretation. BY MR. LEMMLER: I said I don't know what the

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interpretation is. But the rules -- the Supreme Court enacted the rule, again, to include testimonials. BY MR. BART: I want to suggest to you, a friend of mine in Miami who's the largest advertiser there has told me for the last month now he's gotten approved by the Florida Bar a testimonial where the people in the testimonial recommends him as a lawyer but he was told they can't say results. BY MR. LEMMLER: Okay. That's fine. But I did want to point out that the rule still does contain the word testimonial. The other point, which I've lost at this point, I'll just skip and go forward. Ms. Alston, I think, was next. And, folks, let me just say this again. We have ten rules to go through. We're only through two at this point. If you have comments of a more general nature, we're happy to have them. I'd encourage you to submit them, perhaps, in writing so we can kind of get through this in a fairly quick process to allow everyone to get an opportunity to say something

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about every rule. BY MS. ALSTON: Well, Bart is right. I read the 1999 order of the Florida Supreme Court today whereby they adopted certain rules that the Bar had recommended. And one of the rules that the Bar had recommended was a ban on trade names. And the Court specifically declined to implement such a ban because the statistical data, the focus groups and the interviews that had been conducted showed no harm or misleading effect upon the consumer public. So the Florida Bar decided -- or the Florida Supreme court decided not to adopt that ban. Also, on this back table here I found two Federal Court cases in New Mexico and Ohio where the absolute ban on testimonials were challenged in court and the rules were changed. We have documented proof that Ohio changed it as a result of a Constitutional challenge by a lawyer there in exchange for that lawyer dropping the lawsuit. It appears that the same thing happened in New Mexico. BY MR. LEMMLER: Thank you. Yes, sir.

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BY MR. RICHARDSON: I'm Jeff Richardson with Adams and Reese. And I just wanted to note an objection to one of the rules that Mr. Bart talked about, (b)(1)(B) contains reference to past success. And I think there's -- I see two types of reasons that this rule not only does not make sense to me but I think it actually goes against what these rules should be about. If the point is for people who are trying to choose a lawyer to know whether that's the lawyer they want to choose, that lawyer's experience is very relevant. So, you know, there are types of clients that we bring on as a larger firm, the fact that we may run an ad that we closed some big transaction, that's directly relevant to other businesses that have other transactions that they might want to close and that would be of interest to them. And additionally, as I read the rules, 7.6 says that websites, through 7.9 have to comply with 7.2, which means, for example, that on our website, many of our individual attorneys, including myself, we have examples

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of cases that we've worked on. You know, in this case, I defeated class certification on a nationwide case. And that is -- not only is it not confusing to potential clients, it actually helps potential clients understand, oh, this attorney is someone who has handled five cases and reported decisions in the F2nd or the Southern Second on exactly that kind of issue. So to pass a rule that would bar that would not ultimately not protect the clients, it would actually hurt the clients and prevent them from hiring a lawyer that knows -that has experience in this area. BY MR. STANLEY: Well, Jeff, I meant to read all these before I came in today, and I didn't. But my recollection is that websites are different. BY MR. RICHARDSON: Well, 7.6 says that websites have to comply with 7.9, which is information provided on request. And 7.9 says that you have to -- 7.2 applies unless 7.9 says otherwise. And I didn't see anything in 7.9 that says that any of the (B)(1) things don't

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apply. BY MR. LEMMLER: I think if you look further in 7.9(b) -- and we're jumping way ahead, but we'll try to answer the question -- it says whenever a potential client shall request information regarding a lawyer or a law firm for the purpose of making a decision, regarding the employment of the lawyer or law firm -- and I'm skipping ahead now to No. 3 -notwithstanding the provisions of subdivision (b)(1)(B) of Rule 7.2, information provided to a potential client in response to a potential client's request may contain factually verifiable statements concerning past results obtained by the lawyer or law firm, if either alone or in the context in which they appear, such statements are not otherwise misleading. In 7.6 -BY MR. RICHARDSON: All websites then -BY MR. LEMMLER: Yes, a website is basically a safe harbor. BY MR. RICHARDSON:

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But not in an advertisement that you put in a national publication? BY MR. STANLEY: Generally, I think that's -- I think that distinction is correct the way it's written down. And I think we deviated on that from some other Bars. New York, for instance, wraps the website into the advertising. We didn't go that far. I mean, we thought about that and said no, no, no. If they go to your website, they're walking into your tent and they can see whatever you want to put up on that website. BY MR. LEMMLER: And I'll note for you that in the recent revision, the Court's order for Florida, the Bar had actually recommended stricter enforcement on the websites, and the Court said we want to see more information about it. So they have not changed that in Florida at this point. Ms. Alston? BY MS. ALSTON: Just a question. So does that mean that testimonials can go on websites? BY MR. STANLEY:

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I'd have to read it carefully, Beth, you know. But it's essentially websites -BY MS. ALSTON: I'm not sure it's really that clear, but I'll look at it again. BY MR. STANLEY: I think websites are essentially viewed as a tent that if they walk in, they see what they get. That was my understanding. BY MR. CHAPMAN: I'd like to -- I'm Nathan Chapman from the Marketing Center. I'd like to suggest that we cut the word manipulative. I'm not sure what that means. Everybody's goal is to get somebody to call to advertising. And I'd like to urge -BY MR. STANLEY: Nathan, what rule in particular are you -BY MR. CHAPMAN: Wasn't that the one we just read? BY MR. STANLEY: I was looking at the (b)(1)(B). We can find it.

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BY MR. CHAPMAN: 7.5. BY MR. LEMMLER: We haven't even touched on 7.5. But if you want to cut it from 7.5, we'll note it for the record. BY MR. STANLEY: Thank you. BY MR. CHAPMAN: I'd like to also ask that we cut the section ban testimonials. I think what -what we don't like -- I've seen some tacky testimonials. But what I don't like is the tacky part, but of course that's the part that's hard to regulate. I think there's a presumption that all testimonials are tacky. And I will tell you that in my work, I've done some beautiful ones in a way they're nice. I have some really good clients who are really caring people that they can't stand up there and say I'm a really caring person. But I don't see -- if that's really part of their character, I don't see anything wrong, just like you might have a letter of reference, to have somebody else to describe their character

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I think would be a very positive and a very good thing. BY MR. LEMMLER: Thank you. BY MR. HANTHORN: So you're -- are you allowed to have testimonials in other forms of advertising other than the written communications? BY MR. LEMMLER: I don't know that we've established that yet or not. But I think under the Safe Harbor provisions with respect to websites and information requested by a client, as long as it is not otherwise misleading, I suppose you can make factually verifiable statements. So whether that's a testimonial or not, I don't know. Perhaps that's something to look at. BY MR. HANTHORN: What's the rationale for wanting to block testimonials in the first place? I don't understand that. BY MR. LEMMLER: Well, I think it was in Florida's rules, and we've included them in ours. The

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Committee has a different take on it, but -BY MR. HANTHORN: Oh, because Florida did it, that's it. BY MR. STANLEY: Look, there are some members of the Committee that can certainly speak more eloquently to this, but I think I can say that there is some feeling that some testimonials -and Mr. Bart -- Morris's buddy has made a very good point -- that not all of them -- the blanket ban maybe needs to be thought through better. But some testimonials may be misleading in the sense that if someone says, hi, I called Rick and I got this big check, that that's all you have to do. If you call me, you get a big check. Well, that's not true. You've got to call me. You've got to have a case. You've got to have a cause of action. You've got to have a defendant who can pay. There's a lot of steps there. So maybe that has some points in there that need to be cleared up. On the other hand, if the testimonial is that I went to Mr. Bart --

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BY MR. HANTHORN: Well, who did he say -BY MR. STANLEY: Well, no, he said, if I went to Mr. Bart, I was very satisfied. He was a very nice person. He took care of me. If all that's accurate -BY MR. HANTHORN: But that's the content of what was achieved though. Wasn't there some technicality you mentioned? BY MR. BART: Well, the difference was a testimonial on results versus a testimonial on just a recommendation, meaning that the recommendation could be truthful, non deceptive speech. BY MR. HANTHORN: So you can say Scott is a great guy, but I can't tell you what he did or can they say, hey, I was busted for a third offense DWI and Scott got it reduced to a first offense on pre-trial motions and then we went to trial and won. Hire this man. That happens to be a lawyer, because two of my testimonials are from

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attorneys. So why can't I send that out in my letter? Since I'm also the only DWI lawyer who's sending out testimonials in a letter, I feel like really targeted by this, Rich. BY MR. STANLEY: I'm just the messenger, Scott. BY MR. LEMMLER: I think the comments are noted. BY MR. STANLEY: I think we need to take a look at it. BY MR. LEMMLER: I think it's a good point. It's noted. And, again, I invite you to send in more comments in writing if you want. I just don't want to keep everybody here until 11:00 tonight. So if we could just move forward, and it's noted. BY MR. HANTHORN: One last question. How can we continue to have input and continue to be effective in blocking these things after this meeting? BY MR. STANLEY: Well, let me say that -- let me

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make that point. We have on the Bar website a comment box. Okay? No, no, I think -- this is not just -- we want these comments. We want to get this feedback. This is important. The Supreme Court Committee wants this feedback. Go to that comment box with respect to -- you know, if you have -- if you don't mind doing it, 7.5, this is the problem with this rule and it is, A, B, C, D. 7.6 the problem is A, B, C, D. These comments are going to be grouped, brought to the committees, looked at, and voted on hopefully. And we're going to get -- you know, we're either going to improve -- some of these rules may disappear, some of them may be improved, some of them the comments may be rejected. But it's not -- and this is not an insignificant process. We're not trying to just throw this out there and say whether you like it or not. We really do want the feedback. And so that comment box is a great place, because we're having her transcribe this so we can capture the oral comments. But if you could send them in through that website, it's captured. And it's

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going to be put in a form that everybody can read. BY MR. HANTHORN: Thank you. BY MR. LEMMLER: Okay. Yes, ma'am. BY MS. COPPING: Yes, it's Judith Copping with Jones Walker. I just wanted to confirm, getting back to publicizing transactions, large transactions, wins, that sort of thing, can we advertise that information? Like if we, you know, in Baton Rouge have -- we have an advertisement that we publish annually telling how much our total real estate transactions added up for that year. Is that something we can run or are we now limited to what we can say because of this new rule? BY MR. LEMMLER: Well, I think the rules sort of drill that down a little further to who your audience is. If you're sending it to someone in the public that you've never dealt with before, probably not. If you're sending them to past or existing clients, certainly.

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BY MS. COPPING: So if it's published in the Baton Rouge Public Business report -BY MR. LEMMLER: Under the rules, I don't think

BY MS. COPPING: And I wanted to make a quick comment since you brought it up, the audience. As I understand it, these rules are trying to cover the whole state of Louisiana. But this gentleman's audience is, you know, the poor man that has had the unfortunate experience of getting a DWI where his interpretation of the advertisements are completely different from, say, a sophisticated Fortune 500 client who has a complete understanding when we publicize our transactions. It's very difficult to define these rules for such a vast audience. BY MR. LEMMLER: Okay. Fair enough. Thank you. Anything else before I move forward? BY MR. STANLEY: Keep rolling. BY MR. LEMMLER:

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Further examples, and we may have already touched on this -- we have, testimonials. Portrayal of a client by a non client or the reenactment of any events or scenes or pictures that are not actual or authentic, includes the portrayal of a judge, portrayal of a lawyer by a non lawyer, 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 flame, or otherwise implies that lawyers are associated in a law firm if that is not the case. Again, I think building primarily on the false, deceptive or misleading. The actual examples, I suppose, are subject to further scrutiny. BY MR. BART: I have some comments on that. Morris Bart, New Orleans. In regards to this -- this will be an appropriate time -- I have two exhibits I'd like to offer and file into the record. And let me mark it just "A" and "B." And "A" is a letter from the Federal Trade Commission dated September 14th, 2006.

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Quick history on this, the New York rules which you alluded to, they are being proposed. The Federal Trade Commission recently weighed in on it and gave their opinions and their comments as to why they felt those specific rules were unconstitutional and the restraint of free trade and were opposed by the Federal Trade Commission. Many of those rules are exactly the same as what we have proposed in Louisiana. And, specifically, they mention images of non attorney spokespersons recognizable to the public, depictions of courtrooms, portrayals of judges and lawyers by non lawyers, portrayals of clients by non clients, re-enactments of events. They say such techniques may be useful to consumers in identifying suitable providers of legal services. Without belaboring the point, they go on that the FTC has a statutory mandate to prevent rules like this that hinder trade and are not of a benefit to the consumer. And I have already been in touch with the FTC about taking a look at the Louisiana situation. So this is very close to what's proposed here, and