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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of their surveys, there was a tremendous amount of complaints from clients of once they had a lawyer, they continued to get all this mail from other lawyers soliciting their cases. And they felt that that was an intrusion on them. I think it's a very close call. But that's the rationale. The rationale is, if they've already hired Mr. Bart and they get a letter from Mr. Hingle, Mr. Hingle's letter -- or the second letter should say if you've already got a letter, you should disregard this. BY UNIDENTIFIED SPEAKER: I thought that was voted down. I thought that was -BY MR. STANLEY: Claire, you and I were in the minority. BY MR. LEMMLER: I think it may have been a multiple-occasion vote. And I think the last one ended up with this version, but I'll double check that. Mr. Bart? BY MR. BART: Well, I think it's really the Bar

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Association's shot at civility. And speaking of that and given the hour, I wonder if everybody here can't get two hours of CLE or one -BY MR. LEMMLER: That would be up to the CLE Committee, sir. BY MR. BART: One hour should be for ethics and one should be for professionalism. BY MR. LEMMLER: We've got approval for one hour. I'm not authorized to give you any more, but you're certainly welcome to call the Court and ask them that. BY MR. BART: Okay. Will you back us up if we're here two hours? BY MR. LEMMLER: I'll verify you were here for two hours. I'm sure the transcript will do that as well. Moving forward, I think. 7.5 -- we're making progression -- advertisements in the electronic media other than computer-accessed communications. Essentially, at this point

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we're talking about TV and radio, things including TV and radio not -- otherwise the computer-based ads subject to 7.6, the websites and the e-mails, which we'll get to in a moment. Appearance on TV or radio, prohibited content. Television and radio advertisements shall not contain any feature that is deceptive, misleading, manipulative or is likely to confuse the viewer or listener. I believe Florida may have just amended that to just say deceptive, misleading -- false, deceptive or misleading. But, again, don't quote me on that. But I believe that was the gist of most of their amendments was to try to get in line with what the ABA is doing with that. 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 music. Yes, sir, Mr. Bart?

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BY MR. BART: There's two provisions here which I've seen in many other -- particularly in Florida that are just so offensive. (A) any feature that is deceptive, misleading, manipulative or that is likely to confuse the viewer or listener. Again, it's a very vague, overbroad provision. It doesn't say anything. I go back to what I was saying earlier. If you would just simply say advertising can't be false, deceptive or misleading and then have disciplinary counsel pursue any lawyer who's ad they deem to be false, deceptive or misleading is a very workable and Constitutional standard. This doesn't give us any guidance. This, again, is another gotcha-type phrase that shouldn't be in there. And then any background sound other than instrumental music, I mean, remember, you can't regulate style just as you can't regulate a lawyer's dress when he goes into court. You can only regulate the content. You're dealing with the First Amendment. This is protective speech under the First Amendment. How in the world you can make an argument that

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any background sound other than instrumental music is automatically banned and automatically false, deceptive or misleading. What if I do a television commercial where I'm walking toward the camera and you hear the sound of my shoes walking on a wooden floor? You have now deemed that to be false, deceptive and misleading. That's the danger in blanket bans. I just can't see any basis whatsoever for having that. BY MR. LEMMLER: Thank you. BY MR. GEE: William Gee, Lafayette. I'd like to comment on number (b), any spokesperson's voice or image recognizable to the public. First of all, my primary basis is that I believe that the First Amendment -- or course, protected by the First Amendment. Secondly, I don't think any member of the general public really takes any offense to that. Thirdly I would state that if, in fact, the public figure is familiar with the credentials of the attorney and, in fact, knows that attorney or has repore with that attorney, I don't think that's improper. And it's not something that

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has any rationale -- Constitutional rationale. I personally have hired Mr. Robert Vaughn as a spokesperson, and I've consulted with him. He does endorse me as a practitioner. And I don't really think that anybody takes any offense to that. And I think that particular entry, I don't know if that is in the Florida rules or not, but I think that particular entry is rapport to, for example, Robert Vaughn being a spokesperson, William Shatner being a spokesperson, you know. I would simply say that it's -- I don't think that it has any real rationale except for people who have a distain or dislike for attorney advertising. BY MR. LEMMLER: Thank you. I just would note that it is in the Florida rules, I believe, currently. That's where we got it from. It wasn't something the Committee came up on its own. BY MR. STANLEY: No. And it was a matter -- I can assure you it was a matter of high debate. And it got turned around twice.

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BY MR. LEMMLER: Yes, yes. Mr. Hingle? BY MR. HINGLE: I think this is another example of the First Amendment. I personally don't like the ads with William Shatner or Mr. Vaughn. I really really don't like them. But I think he has the right under the First Amendment to use them if he wants to, and we shouldn't be telling him if that's how he's going to market himself that you can't use this means to do it. I think his, although I don't like it or would rather him not do it, I think he has the right to do so. BY MR. STANLEY: Thank you, sir. BY MR. LEMMLER: Thank you. Moving forward. Appearance on television or radio, what is permissible. Television or radio advertisements may contain images that 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

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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 a non lawyer spokesperson speaking on behalf of the lawyer or law firm as long as the spokesperson's voice or image is not recognizable to the public in the community where the advertisement appears, and that spokesperson shall provide a spoken disclosure identifying the spokesperson as a spokesperson and disclosing that the spokesperson is not a lawyer. I'd note for you that the Florida Bar was recommending that the Court in Florida, with this recent amendment, liberalize that, if you will, and remove the disclaimer about the spokesperson being a non lawyer. I think their rationale was that their criteria was to say that unless it -- that if it is obvious from the ad, you do not have to use the disclaimer. I'd note for you that the Florida Supreme Court said, no, we like it like this. We're keeping it. They basically felt it was unequivocal, fairly clear. And that was what they stated in their order. I'm not, again, trying to argue

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or debate it for you but just pointing out that that's what the Florida Supreme Court has done. BY MR. CHAPMAN: Nathan Chapman. I would urge you if you decide to keep -- I would urge you to not have the, you know, disclosure. But if you do decide to keep it, that it not be required to be a spoken disclosure. In a television commercial you only have 29 and a half seconds. And I just think there's no reason that it can't be a written disclosure. BY MR. LEMMLER: Yes, sir. BY MR. EDMOND: Leon Edmond, New Orleans. I'm looking back over these rules here, and I see that we have an issue of descriptive statements under 7.2, somewhere in (3), yet it says here under permissible content, it says, that -background experience of the lawyer. So how do those two rules fit together? BY MR. LEMMLER: I think 7.5 is intending to deal with advertisements in the electronic media and 7.2 is more general. And I'm not certain, but

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I think there's an exception carved out in there for advertisements of this nature or -- I think they work together, but your question is noted. I don't know that I can answer it at this point. Rick, do you have anything -BY MR. STANLEY: I'm trying to -- let me look back. If you could point me to the specific provision. BY MR. EDMOND: 7.2(b). BY MR. STANLEY: Are you talking about the descriptive statements? BY MR. EDMOND: Descriptive statements, yes. BY MR. STANLEY: Yeah, the descriptive statements is intended, although it may not be drafted as well as everybody here would like, it's intended to say -- catch things like I'm an excellent lawyer or I'm the best lawyer. This, I think, is intended to say the background and experience of a lawyer. You can say what you do, the areas that you've practiced and that

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you have 21 years of experience doing DWI. That's all okay. But you can't characterize or describe that with those adjectives. Now, whether or not that gets modified or survives the next round of review is a different thing. But I think those capture two different things. BY MR. LEMMLER: Thank you. 7.6, computer-accessed communications. We're talking now not about TV or radio but, essentially, internet presence, your website and e-mail. These are all subject to the location requirements of Rule 7.2 stating at least one bona fide office address and perhaps the name of the lawyer or lawyers in the firm. Skipping ahead to 7.9, the substantive portion of these rules. I'll get back to the procedural aspects of 7.7 and 7.8 in a moment. This, I'll note for you again, was totally removed from the Florida amendment last week and moved in its intent to 7.1. That is now an exemption -- a general exemption included in 7.1 of the new Florida rules that go in fact on January 1st. This is in our revision at the -- proposed revision at the

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moment. Information provided upon request should comply with 7.2 unless otherwise provided. I think, again, the intent there is nothing false, deceptive or misleading. May provide information deemed valuable to assist the potential client, however an engagement letter can be included, but any contingency fee contract should have the words "sample" and "do not sign" on it so that it's fairly clear to the client or prospective client who has requested it, that it is not an actual contract and they're not obligated to sign it, perhaps. May contain factually verifiable statements concerning past results. Here is where you can talk about the $750,000 verdict that you got and so forth if, indeed, it's true. Must disclose intent to refer to another lawyer or law firm, again, if that's the case. Any comment? 7.10, Florida in removing 7.9 has renumbered 7.10 to 7.9. That's just a housekeeping note. 7.10 is essentially what we have right now as our Rule 7.5 dealing with firm names and letterhead. I think the one

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change that they included in the new revision was to include -- I think it say false, deceptive or misleading now as well where it may not have said that originally in the Florida rule. But I could be wrong. I know there's some minor change, but it's not major. Any question or comment on that? Proposed procedural rules, this is what we're talking about in proposed Rule 7.7 and 7.8. Essentially, two tracks or two possibilities, the first one being an optional advance written advisory opinion. Pretty much what the Bar is providing right now. We can give you an advisory opinion. We give ethics advisory opinions that are non binding, that are informal right now all day long on advertising included. The proposed procedural rules would still retain that. I think one of the components of that is that you must provide the proposed ad at least 30 days prior to using it, but you're not obligated to do that. That's if you want an advisory opinion, if you want the advisory opinion that will suffice as the otherwise required regular filing which you can

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do when running the ad or concurrently with that or the day before, whenever. You're not required to get a advisory opinion, but it's there for you. The intent is to help you and to provide that to you and to avoid the need to do two filings. That is, I suppose, the real distinction there is that the advanced written advisory opinion provides you a period to go back and forth with the Bar for the one filing fee and continue to refine and perhaps debate the merits of whatever you're proposing until some conclusion can be reached, before you spend any real money on the ad. If you decide that that's unnecessary or you're willing to take your chances or you feel confident with what you're doing, you're still required to do it as a regular filing. You can do it concurrently with running the ad or just prior to. I'll note for you that Florida, the major change in Florida with its revision -- and this I think some people would probably consider not a liberalization as it was characterized before -- is that they are now requiring all radio and TV ads, things of

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that nature, to be filed at least 15 days before running unless it contains exclusively Safe Harbor content. They're no longer allowing you go to file it concurrently with the running of the ad. The Court made a very, I guess, direct statement in its order, in a comment saying that, you know, they believed that there was enough potential danger for allowing someone to run an ad without getting the Bar to look at it in advance, that they felt it was necessary to require at least a 15-day advance review before giving them the ability to run the ad. So that's Florida's rule now. We haven't proposed that yet, but I'm letting you know that's something Florida went actually the other way with from the more liberal stance. And then there are exceptions to the filing requirements, those Safe Harbor things. Mr. Hingle? BY MR. HINGLE: What are the costs and expenses of the filing? BY MR. LEMMLER: Okay. Those have not actually

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been determined at this point. That's up to the Court. The proposal would leave it up to the Supreme Court to determine the costs. I'll tell you, for example, in Florida, it's a $150 right now for a regular filing. It's $250 for a late filing. Texas, I think, it's $75 for a filing and maybe a $100 or $125 for a late filing. So we haven't come up with a number. We're leaving that up to the Court. Again, this is going to be the Court's ruling if they decide to use it. BY MR. HINGLE: For the record, this is Michael Hingle on the Northshore. Mississippi is only $25. BY MR. LEMMLER: Okay. Noted. 7.7(b) -- yes, sir. BY MR. RICHARDSON: Jeff Richardson with Adams and Reese. We comply with similar rules in a number of states. The best one is Tennessee which -- the easiest one for us to comply with. You can simply e-mail a PDF file with your ad. It's very efficient. I would just recommend

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that when the implementation is done of the rules, that you all would consider doing that too. BY MR. LEMMLER: You can actually do that now, but thank you for the comment. I get PDFs all day long. I get videotapes. I get letters. I get transcripts. I get all manner of forms of ads to look at, so I don't think that was necessarily not under consideration. But thank you for noting that. 7.7(c), the filing requirement for most advertisements, again, the distinction between (b) with the advanced optional written advisory opinion and (c) the regular filing. Under either situation, the proposal would include submission of a fee, a copy of the advertisement and the sample envelope if it's going to be mailed, a typewritten copy of the transcript, I suppose, if it's not a otherwise a written ad like a TV commercial or a radio ad. Statement concerning the type of media, the frequency and the duration of the advertisement, where you're going to run it,

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how you're going to run it, how long you anticipate running it. Any comment there? Mr. Hingle? BY MR. HINGLE: Michael Hingle from the Northshore. Maybe I read this wrong some place, but I thought the information that would have to be disclosed what station you're going to run it on, what time periods you're going to run it, how many times you were going to run it, which I would suggest is a bit oppressive. As, for instance, in Mississippi, you can tell them I'm running it on the Gulf Coast, and that's satisfactory. To plan for an extended period of time what shows, what time periods and so forth, I don't think most people comply with. BY MR. LEMMLER: I don't think that the language -- I think that's a fairly close paraphrase of what's actually in 7.7 -- 7.7(d), a statement listing all medium in which the advertisement or communication will appear, the anticipated frequency of use of the advertisement or communication in each medium in which it will

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appear and the anticipated time period during which the advertisement or communication will be used. I don't remember any distinct language about the station and so forth. BY MR. HINGLE: My last question. And I may have read this some place else, but was there going to be a fee for each TV station? BY MR. LEMMLER: I don't leave so. I think it's anticipated that it's a per filing. BY MR. HINGLE: Per ad? BY MR. LEMMLER: I supposed that's the advantage to stating where you intend to run it. If you're going to run it all over the country, tell us. I think that's the intent. Thank you. Exemptions from the filing requirement, Rule 7.8. These are the Safe Harbors, contains only Safe Harbor content of Rule 7.2(c)(12), again, that long list of things like the Statue of Liberty and the half body or whole body of a lawyer depending on

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where you are and what day you are in Florida. A brief announcement identifying the lawyer as a sponsor for a charity event -this is what I was referring to before -provided no information is given but the name and location of the sponsor of a law firm. That's now been expanded to include much more Safe Harbor content. You can talk about other things with respect to the firm. I don't remember all the particulars, but note that's expanded in Florida's new version of the rule. A listing or an entry in a law list of Bar publication. I guess the common example of that would be, perhaps, Martindale-Hubbell or something of that nature. Communication mailed only to existing clients, former clients or other lawyers. I'd note for you that Florida has expanded its pro se exemption in 7.1 as well to now include -- and I'm not sure exactly why that was necessary -- but family members, the lawyer's own family members. That's now been exempted and carved out as a general initial exemption in 7.1. Any written communication

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requested by the prospective client. Professional announcement cards mailed to other lawyers, relatives, former or current clients and close friends. Computer-accessed communications as described in subdivision (b) of 7.6, the website. All except from filing requirements if you list this sort of information and, I guess, presumably only this information, this type of information. All right. We've made it through the rules. BY MR. STANLEY: Congratulations. BY MR. LEMMLER: Thank you. The transitional period that has been anticipated or at least is going to be recommended perhaps by the Committee in its final proposal, obviously, we can't expect everyone to just jump into this overnight if it goes into effect given the types of ads that people are running and the publication schedule and so forth. It's anticipated that there would be a phase-in, that there would be at least a 90-day period to

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modify ads in current use, with probably greater exceptions in grandfathering of those types of ads that have annual or other more limited publication schedules. So telephone directories, you can't expect to change a telephone book in one that appears -- or gets published once a year the minute this rule goes into effect. So I think that there's some leeway there and some recognition that lawyers live in the real world and they're not necessarily driving this as much as those that are selling the advertising, perhaps. So those systems are what are controlling some of these forms of ads. So that's the phase-in period. Any comment with respect to that? Future work plan, public hearings are being conducted around the state. We'll be in Shreveport next Thursday at 10:00 a.m. Anyone who hasn't had enough of this that wants to come and join us there, please come. We'll have food I'm sure. Special rules of debate were adopted by the House of Delegates, the LSBA House of Delegates. That was adopted, I think,

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at the last house meeting in anticipation of some work product which will now be brought forth, I believe, at the next house meeting. Any resolutions that might be addressing amendments should be submitted in writing 30 days in advance of the house of Delegates' meeting. And I believe that deadline is December 12th or 13th. BY UNIDENTIFIED SPEAKER: The 13th. BY MR. LEMMLER: The 13th. Okay. The Supreme Court Committee to study attorney advertising, we believe and fully expect we'll want to review whatever proposal we finally come up with, depending on what the House does with it, their recommendation. So I think that's -let's see. On-line comments in case you want to make comments on-line or have not already or wish to make more, there's the web address. Again, as I said, there's a link directly on the Bar's home page that you can file into the comment form. Mr. Guiraud? BY MR. GUIRAUD:

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E. Eric Guiraud. Were there any voices on the Committee that were voting to not submit the rule at all and just maybe keep what we have? BY MR. STANLEY: Let me address that. Initially, Eric, this -- it started out three years ago really as a Bar initiative to start looking at the advertising rules. And, frankly, that initiative was probably more focused on a few areas that needed reform. Where we are now is completely different. What has happened is the Legislature literally was about to adopt Florida rules and put them in a statute when we were, you know -- they ended up having a resolution by the Legislature asking the Supreme Court to form a committee to look at the rules. The Supreme Court did that. And then that committee asked our Committee to look at the rules and come up with a work plan and come up with some things and really try to get out a series of rules that at least had been out there and that has some experience with, Florida being the one with the most experience, and tried to improve off them as much as

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possible, go to the Bar get the comments. And these are excellent comments, and I really want to thank everyone because, I mean, a lot of this stuff is going to be helpful to us in our work. But, in essence, the impetus for the reform is coming from outside of the Bar right now. And it's coming from the Legislature. And, ultimately, you know, if -I think if the Bar said, you know, we don't want any more -- any advertising rules at all, then we would lose our opportunity to have any input into the process. BY MR. GUIRAUD: Well, I'm familiar with the history. And Senator Marioneaux was the one that introduced that legislation on the heels, I might add, of a nasty feat on behalf of my firm. And I think it was partially personal retribution by Senator Marioneaux against my firm introduced as legislation which he knew to be unconstitutional which he expressed to members of our firm that he knew himself to be unconstitutional. So I'm a little surprised that

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the Board would really cow-tow to that kind of heavy-handed attack by the Legislature on an area that the Supreme Court clearly has jurisdiction over. It strikes me as we should really be treating the citizens of the state as adults and not as morons, not as idiots, not as nincompoops or children. Let the rules be as they are. If you must, require that a website be attached to everything. And let people go there and get the information they need to be fully informed. But don't go to this overreaching, overarching -- and I'll reiterate all the comments I heard here tonight. I just think it's gone way too far and quite clear it's unconstitutional. And I just -- I hate to see that bite that's going to inevitably happen. BY MR. LEMMLER: Thank you. I'd just note for those that we've been referring to this legislation. I think it's Senate Bill 617 from the 2006 regular session that we're referring to that the Legislature was trying to enact. BY MR. STANLEY: Was that the joint resolution or

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was that the -BY MR. LEMMLER: No, that was Marioneaux's bill. I think that was what was passed. So if you want to look for it -BY MR. HANTHORN: Do we want to endorse him in his next campaign? BY MR. LEMMLER: Any more comments, please? BY MR. STANLEY: And, again, we very much encourage you to put written comments on this website. It will assist us greatly. And we do value everything you guys have said because a lot of this stuff is important. It will help us go back and make some changes. BY MR. LEMMLER: The moment many of you have probably been waiting for, the information regarding the one hour of ethics credit. Your award for having listened to me for this entire period of time. The course number is listed there as the third down there for New Orleans. As I said, one hour -- as it says up there, one

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hour of ethics credit. If you want more, get with Mr. Bart and maybe he can help you with that. Thanks, folks. BY UNIDENTIFIED SPEAKER: What's the title of the program? BY MR. LEMMLER: Bill? BY MR. KING: Advertising Public Hearing. BY MR. STANLEY: Thanks everyone for turning out. BY MR. LEMMLER: Yeah, I want to thank everyone. The comments were very good, and they're beng transcribed. We will certainly look at them. Again, thank you very much.

(AT THIS TIME, THE PUBLIC HEARING WAS CONCLUDED AT OR ABOUT 8:15 P.M. AND THE RECORD WAS CLOSED.)

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REPORTER'S CERTIFICATE

I, Gail F. Mason, RPR, Certified Court Reporter in and for the State of Louisiana, Certificate No. 96004, which is current and in good standing, as the officer before whom this public hearing was taken, do hereby certify that this proceeding was reported by me in the stenotype reporting method, was prepared and transcribed by me or under my personal direction and supervision, and is a true and correct transcript to the best of my ability and understanding; that I am not related to counsel or to the parties herein, nor am I otherwise interested in the outcome of this matter.

Gail F. Mason, RPR, CCR Certificate No. 96004