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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1 based upon the United States Supreme Court decisions to 2 this point. They allow that kind of communication. So I 3 think I've accurately described it, and we've done all we 4 can do with the rule that we have. 5 MR. PLATTSMIER: That's correct. Thus far

6 we are within the bounds of what the U.S. Supreme Court 7 has described as the parameters of permissible 8 regulation. Florida Bar versus Went for It decision 9 was a case that actually upheld the Florida Bar's efforts 10 to ban direct mail solicitation during the first 30 days 11 and reaffirmed the U.S. Supreme Court's earlier decision 12 that allowed lawyers to engage in direct mail 13 solicitation. 14 MR. LEMMLER: I'll note for you as well in

15 our current rule and in this proposal there is still the 16 condition that the lawyer who is sending a written 17 communication that is prompted by a specific occurrence 18 has to disclose how the lawyer obtained the information 19 that was prompting the communication. So if you're going 20 down to the sheriff's office and getting a list of recent 21 arrestees, you have to include something saying I got 22 your name off of the list of recent arrestees and that's 23 why I'm sending you this communication. It doesn't 24 prevent it, but at least it discloses a little more 25 information to the person as to how they happened to know

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1 this. 2 MR. MOUTON: And Mr. D'Anna was mentioning

3 a runner from the city to get accident reports. So if 4 you had somebody working in an emergency room and they 5 tipped you, anybody that would operate that way, you 6 could potentially just say that that's how you got the 7 information and that would save you under the rule? 8 MR. PLATTSMIER: Well, you might run

9 afoul on a different concern there at that point. 10 MR. MOUTON: I understand, but wait 30

11 days and -12 MR. PLATTSMIER: It's a felony for someone

13 to run cases. 14 MR. MOUTON: You know, I know that there's

15 all kinds of practices that go on, not that -- you know, 16 I don't do that sort of area of law anyway. 17 MR. LEMMLER: The specific facts are

18 always going to control and the devil is always in the 19 details, but generally I think that's what's allowed in 20 the rules, and your situation, as Mr. Plattsmier said, I 21 think there could be other concerns. But let's try to 22 move forward. 23 Rule 7.5. Basically what we're talking

24 about here is TV and radio. Advertisements in the 25 electronic media other than computer accessed

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1 communications. There's a separate rule 7.6 that deals 2 with web sites and e-mail and so forth. And as it says, 3 computer-based ads subject to 7.6, including but not 4 limited to television and radio, are subject to the 5 requirements of Rule 7.2. The permissible and -- I'm 6 sorry, prohibited conduct, the general stuff, false, 7 deceptive or misleading that we've talked about already. 8 Essentially appearance on TV and radio

9 prohibited content. Section one. Television and radio 10 advertisements shall not contain any feature that is 11 deceptive, misleading, manipulative, or that is likely to 12 confuse the viewer or listener. I think in Florida's 13 revision again they have actually adopted the false, 14 deceptive or misleading language again and modified this 15 slightly. 16 Any spokesperson's voice or image that is

17 recognizable to the public and the community where the 18 advertisement appears. Lawyers who are not members of 19 the advertising law firm speaking on behalf of the 20 advertising lawyer or a law firm. These things are 21 prohibited from your TV or radio ads. Any background 22 sound other than instrumental music. 23 Permissible content. Things you can put

24 in your TV and radio ads that are presumptively approved. 25 Images that otherwise conform to the requirement of these

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1 rules. A lawyer who is a member of the advertising firm 2 personally appearing to speak regarding the legal 3 services of a lawyer or law firm that they are available 4 to perform, the fees to be charged for such services and 5 the background and experience of the lawyer or law firm. 6 Things that are truthful, facts, or you can have a 7 non-lawyer spokesperson speaking on behalf of the lawyer 8 or law firm as long as the spokesperson's voice or image 9 is not recognizable to the public in the community where 10 the advertisement appears. And that spokesman shall 11 provide a spoken disclosure identifying the spokesperson 12 as a spokesperson and disclosing that the spokesperson is 13 not a lawyer. 14 I note for you in Florida the Florida Bar

15 was proposing to modify this and somewhat liberalize it 16 and said that you only have to identify non-lawyer 17 spokespersons when it is not obvious from the 18 advertisement that they are indeed non-lawyer 19 spokespersons. The Florida Supreme Court said, no, we 20 like it the way it is. We believe it is very clear. 21 It's an unequivocal statement of what you can or cannot 22 do and we're not going to change it. So that was 23 rejected by the Florida Supreme Court. The proposal that 24 you see here is very much in keeping with what they have 25 right now.

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1

Rule 7.6. Computer-accessed

2 communications. This is essentially, as I said, the 3 Internet presence your web site or your e-mail, not TV or 4 radio. All of these things are also subject to the 5 location requirements of 7.2 indicating a bona fide 6 office address telling them where you are. 7 Skipping ahead a bit. And I note for you

8 that -- before I go back to 7.6, that the distinction 9 made in the proposal is that Internet web sites are 10 considered much like information that's provided to a 11 client upon request. You can indicate a lot more 12 information on your web site than you could in an 13 unsolicited e-mail. An unsolicited e-mail would be 14 treated much like a targeted direct written solicitation, 15 and you have to disclose a lot more information, put in 16 advertisement and so forth in the subject line. 17 Moving forward again. Skipping a few

18 rules to get to the balance of the substantive rules, 19 information provided upon request in Rule 7.9. I will 20 note for you that Florida in its newest revision has 21 basically removed this entire rule and moved it forward 22 into a general exception in the beginning of all of the 23 rules in 7.1. They recognize it as a per se exception 24 and no need to have a special rule to delineate what 25 those conditions might be. We'll, I'm sure, be looking

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1 at that in our review of the comments and the Florida 2 revisions. Under the proposal though it's information 3 provided upon request must still comply with 7.2 unless 4 it is otherwise provided. You can provide information as 5 deemed valuable to assist your client if you provide an 6 engagement letter -- I'm sorry, you can provide an 7 engagement letter, but if you provide a contingency fee 8 contract it has to indicate that it's a sample and have 9 the words do not sign displayed on it so they are not 10 confusing it with an actual contract. 11 It may contain factually verifiable

12 statements concerning your past results. This is where 13 you can tell people about what you've done and your 14 successes and so forth if they ask for that information. 15 Must disclose intent to refer to another lawyer or law 16 firm if that's the case. 17 And then Rule 7.10 which Florida again has

18 moved up into its Rule 7.9 since they have moved 7.9 up 19 into the general exceptions. 7.10 is essentially what we 20 have right now in our own Rule 7.5 which tells you what 21 you can put in your firm name and letterhead and so forth 22 and the trade names you can use and so forth. 23 That's the bulk of substantive rules.

24 The proposed procedural rules now would provide for two 25 options. Effectively you can get an advanced written

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1 advisory opinion which you can actually get right now on 2 your advertising. Nothing new really. We do that all 3 the time, or whether you get the advanced written 4 advisory opinion or not, whenever you file an ad, unless 5 it falls under the safe harbor provisions and is exempt 6 from the filing requirements you would be required to 7 file it with the Bar. 8 Under 7.7(b), the advance written advisory

9 opinion, the details, I won't go into all of them, but 10 effectively at least 30 days before you're going to run 11 the ad you can send it to us at the Bar. We'll review 12 it, we'll work with you, we'll make recommendations and 13 suggestions. If you don't understand something or you 14 disagree with it we'll work with you on that and try to 15 figure out something that we believe can be useful as 16 well as work under the rules, and again before you spend 17 any real money on your advertisement. That would be the 18 point of this process, and we would hope that lawyers 19 would be wanting to take advantage of that. We 20 understand that the lawyers in Florida actually welcomed 21 that process. 22 MR. MOUTON: And what would be the

23 proposed fee for that advisory service? 24 MR. LEMMLER: The fee right now has not

25 been set. Under the proposal it's left to the Supreme

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1 Court to set. To give you just as example, Florida right 2 now, their fee for filing is $150. Texas I think is $75. 3 And that's per filing. Again, for doing the advanced 4 written advisory leg of this as opposed to just filing 5 it. And let me explain that, if I can. You can do 6 either track. You can do the advanced written advisory 7 opinion. Once that filing is approved or once you get to 8 the point where you say I like the ad and we say it's a 9 good ad, you don't have to refile it. It suffices as the 10 actual filing. The advantage though is that you get to 11 work with us all along and get it right and feel 12 comfortable with it and we feel comfortable with it. 13 However, if you don't like that process

14 and you feel comfortable about your advertising you can 15 simply file it at the time that you want to use it or 16 prior to that time without getting the advisory opinion. 17 It's still the same fee. Mr. Plattsmier? 18 MR. PLATTSMIER: Chuck Plattsmier for the

19 record. And this is a question I can probably ask you 20 off the public record, but I think the information that 21 I'm asking you might be useful to be placed in the public 22 record. 23 At least as I've been told, many lawyers

24 who advertise today, particularly in the public media of 25 radio and television of course do not obviously draft

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1 their own advertisements. They have used professionals 2 designed to do that for them. Will the ethics advisory 3 service interact with representatives of the lawyer who 4 are media consultants or those who write or draft or sell 5 advertising packages for lawyers? Is that what is 6 contemplated? 7 MR. LEMMLER: I don't think that is what

8 is envisioned, at least not that direct form of 9 interaction. I'm just speaking from what I understand. 10 I'm not speaking for the committee or the Bar or the 11 Supreme Court, but the way I understand the proposal it 12 would function the same essentially as the ethics 13 advisory service for the Bar functions rights now. We 14 deal with the lawyers. We deal with lawyers and their 15 own prospective conduct. 16 Right now someone who is in advertising, a

17 third party who the lawyer is dealing with to produce a 18 commercial calls, we say, well, have the lawyer call it 19 us, or have the lawyer work up the copy and have the 20 lawyer send it to us and we'll work with the lawyer. And 21 of course that person is probably talking to a lawyer at 22 the same time, but, you know, our policy is essentially 23 to deal with the lawyer, the member of the Bar 24 Association because this is a service provided by the Bar 25 association.

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1

Now, I do understand in speaking to the

2 folks in Texas, and I suppose they probably do this in 3 Florida as well, they try, in order to encourage lawyers 4 to comply with the process and understand the process, 5 they do a number of continuing legal education programs. 6 In Texas, according to the guy in Texas, they actually do 7 CLEs, if you will, for members of the advertising 8 community to try to help them help the lawyers to do 9 better ads and ads that are more in compliance with the 10 rules. 11 So again, just from my own perspective, I

12 can foresee that as being something beneficial to our 13 members by helping the people who help them understand 14 what they need to do to comply with the rules, but I 15 don't think that's the direct contact between me or my 16 office or the Bar and the members of the advertising 17 community is contemplated under the rules the way they 18 are right now. 19 Okay. In either instance, whether you do

20 the advanced written advisory opinion or whether you file 21 your ad without getting the advisory opinion the 22 submission requirements would effectively be the same. 23 You would be submitting a fee, and again the fee would be 24 set under the proposal by the Supreme Court. A copy of 25 the advertisement and a sample envelope that you would

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1 intend to use, a typewritten copy of a transcript. I'd 2 note for you that Florida has also now included the need 3 to have that transcript in English if the ad is in 4 another language. Presumably the people who are going to 5 be reviewing this are English speaking and so they want 6 to have that in the rule. Statement concerning the type 7 of media, frequency and duration of the advertisement. 8 Any questions about this? Then there's a

9 list in Rule 7.8 of things that are considered except 10 from the filing requirement, things that you don't have 11 to submit to the Bar, things that you don't have to pay a 12 fee to use in your ads or to use as ads. The basic one 13 is if you follow the safe harbor content of what's in 14 7.2(c)12, the plain vanilla stuff. If that's all that's 15 in your ad and that's how you're doing it, then you're 16 exempt from the filing requirement. 17 Brief announcements identifying the lawyer

18 as a sponsor for charitable events provided that no 19 information is given with the name and location of the 20 sponsoring law firm. Again I note for you that Florida 21 has expanded that and said that if you include in your 22 sponsoring announcement any of the safe harbor content or 23 only the safe harbor content, rather, that that is 24 presumed to be exempt from the filing requirement. You 25 are not precluded from putting these other things. You

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1 are not restricted to just putting the name and location 2 of the sponsoring law firm. 3 Listing or entry in a law list or bar

4 publication. I think that the common example there is 5 like the Martindale-Hubbell, something of that nature. 6 That's presumed to be exempt from the filing requirement. 7 A communication mailed only to existing clients, former 8 clients or other lawyers. I'd note for you that Florida 9 has made had presumptive exemption for communications 10 mailed to the family members of the lawyer. That's 11 exempt from filing and that's exempt probably from most 12 of those rules if you're mailing communications to your 13 own family members. I think that's probably understood 14 and accepted right now, but they felt it necessary to put 15 that in the rule to let everybody know. 16 Any written communications requested by a

17 prospective client. Florida has again now, in its newest 18 provisions, moved this up to 7.1 or 7.2 saying that this 19 is a presumptive exemption. You don't have to comply 20 with a lot of this stuff if you're providing it to 21 prospective clients. Professional announcement cards 22 mailed to other lawyers, relatives, former or current 23 clients, and close friends. You know, pleased to 24 announce that the new law firm of so and so is being 25 formed, something of that nature.

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1

Computer-accessed communications is

2 described in subsection (b) of Rule 7.6. Again, web 3 sites. That's exempt from filing. If you're changing 4 your web site on a daily basis that's exempt from a 5 filing requirement. Obviously, we wouldn't want to try 6 to keep up with you and that and you wouldn't want to be 7 constrained by that. So what's on your web site, 8 whatever the public is going to is considered to be like 9 the information that is provided to people upon request. 10 So if they want to see it, it's their active need to see 11 it. So we're not going to make you file that. 12 And that's pretty much the rules. That's

13 the proposed rules that we have in this packet. I think 14 the committee has envisioned a phase-in period for this. 15 Obviously, if the court would adopt it, and we're 16 recommending to the Court that they consider that, that 17 it would be very difficult, if not impossible for lawyers 18 overnight to change many of their ads and most of their 19 ads, particularly those that are published on only an 20 annual basis like a telephone directory and so forth. 21 You can't be expected to change that when you have no 22 control over that except on an annual basis perhaps. So 23 those types of things would perhaps be grandfathered in. 24 Otherwise, we envision at least a 90 day phase-in period 25 for ads that are currently in use. That's what our

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1 recommendation would be to the Court. 2 Future work plan. This is the last of the

3 four public hearings that we've had. We've gotten great 4 comments from all of them. Just to note for you, because 5 I don't think I mentioned it earlier, we also have on the 6 bar's web site an online comment form where we encourage 7 people to go in and log in and put in their comments, and 8 we're keeping track of those and will be considering 9 those as well. So that's available to you whether you've 10 made it to a public hearing or not, and we're getting 11 quite a number of comments on that. 12 13 14 here. 15 16 looking. 17 THE WITNESS: Jacqueline Scott. I just MR. LEMMLER: I'm sorry, ma'am. I wasn't Special rules of debate. MR. PLATTSMIER: There's a question back

18 have a question. I advertise -- and I got here late -- I 19 apologize -- but in the phone book, and one of the things 20 I've advertised is they have a magazine here that the 21 lawyers vote for lawyers, and one of things is like they 22 select a top ten. I use it to my advantage, and I was 23 just trying to see if that -- you know, how does that 24 affect -- you know, is it going to be affected with the 25 laws, with the new proposal?

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1 2

MR. LEMMLER: Larry? MS. SCOTT: And there are certain things

3 that I advertise, you know, in this advertisement, but of 4 course I only handle certain cases. So which means it's 5 not like I'm -- you know, I don't mean to just distract, 6 you know, being in the top ten, but it was -- you know, 7 it happened, you know, in Shreveport, an advantage, and 8 I'll call it an edge, to be honest, and so I just wanted 9 to know if -- you know, with this proposal how is that 10 affected or would that be affected in the way I 11 advertise? 12 MR. SHEA: This is Larry Shea. I think

13 there are certain aspects of this proposal that would 14 affect that. 15 MR. GREGORIO: This is Sam Gregorio. I

16 actually think you would be prohibited. And if I'm 17 reading my numbers right, 7.2(b)(1)(d) which compares 18 lawyer's services with another's services. There may be 19 another provision also, but I just noticed that at the 20 moment. 21 MR. SHEA: There is a provision that

22 pertains to references to where you have been listed with 23 respect to certain entities that you are allowed to 24 reference, but I'm not sure that what you're referring 25 to, the SB magazine, I'm not sure that that's one that

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1 would necessarily comply with the list of groups that you 2 are permitted to reference, okay? That's my comment on 3 it, and it has a lot to do with the processes that are 4 utilized by the group in terms of selection and things of 5 that nature. 6 MS. SCOTT: Would the same thing -- and

7 like say, for instance, you have TV and we have lawyer 8 advertisements, well, he got me a million dollars and -9 MR. SHEA: These rules would specifically

10 prohibit that. 11 MR. GREGORIO: Can I add one thing? I'm

12 sorry. And I'm responding to Larry's comments since we 13 have the public record here. This is Sam Gregorio. The 14 committee specifically had some nice long discussions 15 about those types of listings, and my personal feeling 16 and the committee's feeling is that they would be 17 prohibited by these rules more than just -- in other 18 words, I'm saying it stronger than you stated it. 19 MR. SHEA: Right. But it was not all

20 listings. And it does reference those that -- I think it 21 accurately describes what the committee determined would 22 be listings that would be permissible. And Mr. 23 Plattsmier you may recall. I think it does. 24 25 MR. PLATTSMIER: I think it does as well. MR. GREGORIO: And just to make sure that

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1 we're all together. I think we're all saying the same 2 thing, that, for example, we discussed specifically the 3 SB magazine listing and we all thought that that would 4 probably not be permitted. There are some others such as 5 Martindale-Hubbell that would be permitted, and I think 6 we're all saying that same thing as I understand you 7 guys. 8 9 10 MR. PLATTSMIER: Yes. MR. SHEA: Yes. MR. D'ANNA: This is John D'Anna. That

11 was my question, following up on the SB magazine thing 12 because what they do, as you know, they just send out 13 forms, and then you're allowed to pick somebody. It 14 could even be somebody in your own firm or you get 15 somebody to nominate you and you nominate somebody else, 16 and lo and behold you're one of the top ten lawyers in 17 that area, and if you pay an additional thousand dollars 18 you get to have a picture ad right behind it which really 19 is somewhat misleading. 20 21 not. 22 MR. D'ANNA: Right. If you're not MR. GREGORIO: Whether you are selected or

23 selected you're there -- you can buy a whole page and you 24 can be first in line behind the top best lawyers in the 25 area. So what I'm hearing is that under these rules

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1 participation in that program would be a violation. 2 MR. GREGORIO: That is my understanding

3 and that was the committee group thought. 4 MR. SCOTT: To participate or to

5 advertise? 6 MR. D'ANNA: To participate in the top

7 best lawyer survey under that scenario. 8 MR. GREGORIO: You mean advertise? Is

9 that what you mean? 10 MR. D'ANNA: Well, they send everybody who

11 was in it the year before a form. 12 MR. GREGORIO: But I don't think it's

13 impermissible to participate. I do think it would be 14 impermissible under these rules to advertise. 15 MR. D'ANNA: So you could still -- Okay.

16 I was hoping it would prohibit that participation because 17 I think that's a very misleading publication. 18 MR. PLATTSMIER: There may be a

19 distinction between whether or not folks within your 20 community in theory have voted you one of the top lawyers 21 in your committee over which you have no control versus 22 then the use of that information in an advertising format 23 which I believe the rules would probably prohibit. But 24 this is a fact driven inquiry that you've raised, and I'm 25 not prepared to tell you on a blanket statement that all

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1 events such as the one that you're describing here that 2 may have taken place in the past in Shreveport would 3 necessarily in every event implicate misconduct by the 4 lawyer, nor am I suggesting that it would exempt a lawyer 5 from scrutiny if it were found that they took an active 6 role in perpetuating this sort of program when it wasn't 7 factually based on rational information. 8 MR. SHEA: And this is Larry SHEA. I

9 would add that there was much discussion not so much of 10 SB magazine, but of programs like it that have been the 11 subject of quite a bit of controversy in other states 12 where they have actually had disciplinary proceedings 13 that have related to things like the SB magazine such as 14 super lawyers. There's a group called super lawyers. 15 They have been the subject of some ethics proceedings, 16 disciplinary proceedings in other states. They have 17 raised questions concerning Best's, and in one state in 18 discussing super lawyers it even raised questions 19 concerning Martindale-Hubbell. And so all of this has 20 been a subject of a lot of litigation. 21 MR. PLATTSMIER: My colleagues across the

22 country have been hotly debating many of these same 23 issues, particularly, for example, the reference to so 24 called super lawyer listings and other publications of 25 the same kind, and I will tell you it's a topic that is

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1 as fresh as last week when the lists or comments were 2 still flying across the country. It is an area that is 3 troublesome to many discipline agencies across the 4 country. 5 MR. LEMMLER: Okay. To note for you

6 before we wrap it up -- I think we're down to the end of 7 this -- that there were special rules of debate adopted 8 by the Louisiana State Bar House of delegates that have 9 already been adopted that would deal with this proposal. 10 The proposal is intended to be presented at the next 11 House meeting which is in January. Resolutions that 12 would address amendments to this proposal that you see 13 before you or any subsequent form of the proposal that's 14 going to go to the House in January, those resolutions 15 need to be submitted in writing 30 days in advance of 16 that House of Delegates meeting, and there is a form in 17 the back with the rules of debate for the House meeting 18 on there, if you're interested in that. 19 The Supreme Court committee to study

20 attorney advertising, the Court's own committee, of which 21 some of the members of the Rules of Professional Conduct, 22 the Bar committee are members of as well, the Court 23 committee is presumably going to be looking at this 24 proposal and our comments and everything that the 25 committee puts into it after their meeting on the 29th,

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1 and then we'll do whatever the Court wants to do I 2 suppose with respect to these rules. So that's the 3 process. That's pretty much where we are. Understand 4 that this is a process that the Court is looking for 5 input from the Bar right now. We're giving them input, 6 your comments, our proposal, and the Court is going to do 7 what it wants to do at that point. Yes, sir? 8 MR. BAILEY: Jack Bailey. If we had an

9 amendment that we would like to see proposed, what form 10 should I put that in and send it to you in? Just type it 11 up in general or -12 MR. PLATTSMIER: I'd like to respond to

13 that, if I might. Two things that I think are available 14 to you, Jack. One, if you have a specific change in 15 language, I think that both the Supreme Court committee, 16 as well as the rules committee and its subcommittee would 17 be delighted to receive any suggested language change or 18 rule change that you think they should consider. 19 Secondly, I'm going to have to answer your question by 20 asking a question. Are you a member of the House of 21 Delegates? 22 23 MR. BAILEY: No. MR. PLATTSMIER: All right. If you have

24 someone that you know who is a member of the House of 25 Delegates, with whom you have a good rapport, and to the

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1 extent that your written proposal to the Supreme Court 2 committee or that the rules committee of the LSBA is not 3 perhaps incorporated, under the rules of debate, if you 4 have a specific provision that you would like to have 5 debated on the House floor, then it needs to be part of 6 the package that is turned in by a date certain 30 days 7 in advance, I believe, of the House of Delegates meeting 8 which is held at the end of January under the rules of 9 debate. 10 11 January. 12 13 January. 14 MR. PLATTSMIER: Excuse me, middle of MR. LEMMLER: It's in the middle of MR. GREGORIO: Held in the middle of

15 January. And Mr. Shea, for example, is a member of the 16 House of Delegates, and there may be others from your 17 area who are members. You may ask them to -- that's 18 right, Kevin Malloy, Sam Gregorio and number of folks who 19 are here today could offer on your behalf that sort of 20 proposed changes if it had the not been previously 21 incorporated by the committee into the final work 22 product. So there are at least two avenues available to 23 you. 24 MR. LEMMLER: Just building on what Mr.

25 Plattsmier said, I think submitting your comments and

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1 suggestions at least for amendment of specific provisions 2 of the rules, the most effective way might be right now 3 to submit them to the committee, to the rules committee 4 and court's committee and they can make that change as 5 part of the package. 6 MR. SHEA: And we actually have a place to

7 do that on the LSBA site so you don't even have to 8 prepare a letter or anything. You can just go to that 9 site and submit it, give your name and submit here's the 10 language change I would propose be made and that's 11 LSBA.org. 12 MR. LEMMLER: There's a link on the home

13 page that will take you to a separate page to do that. 14 MR. SHEA: Yeah, and you just go right

15 there and you give it everything that comes in there. It 16 is going to be considered by the rules committee, and if 17 we, as a group, think it's something that needs to be 18 done, we will incorporate it. 19 MR. LEMMLER: But any way you want to get

20 it to us. I mean, you can call me up, you can fax it to 21 me, you can e-mail it to me, you can mail it in, if 22 there's time to mail it in. Any way you want to get it 23 to us, we welcome that, and that would be encouraged as 24 probably the easiest way to get some specific language 25 changes at least considered in the proposal rather than

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1 waiting to go to the House meeting. You can certainly do 2 that as well, but I'm just telling you that this is 3 probably a more perhaps efficient way to handle it. 4 Yes, sir? 5 MR. MALLOY: I just have a question I

6 should have probably raised earlier, but with regard to 7 fees, and it's kind of off the wall, but has there ever 8 been any discussion in the committee of constitutionality 9 of having a fee required to comply with these ethical 10 rules to make free speech -- you know, to take advantage 11 of free speech rights that we have? 12 MR. SHEA: Yes, there have been -- and

13 this is Larry SHEA again -- that you can construct an ad 14 which doesn't require a filing if you stay in the safe 15 harbor. So it's -- we're not prohibiting you from 16 advertising within the safe harbor. What it does is if 17 you're not going to stay right within the safe harbor, 18 though, it does require the filing, and I believe that's 19 already been addressed in some prior cases and that's 20 acceptable. 21 MR. GREGORIO: This is Sam Gregorio. I

22 also just want to respond to Kevin. This area is not a 23 free speech area. It's a commercial free speech area -24 25 MR. MALLOY: I understand. MR. GREGORIO: -- which has a distinction

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1 and different rules and different tests, and I just 2 wanted to -- when you talk about free speech, I want to 3 make sure that the record is clear that it's commercial 4 free speech. 5 MR. LEMMLER: And I would also note for

6 you that with respect to the constitutional issue of 7 charging the fee, Florida has been doing this already for 8 about 12 years. Texas has been doing it I think for ten. 9 So it's already been in place in other states and 10 presumably passed constitutional muster there. So the 11 distinction that Sam has made, plus that, I think that 12 issue has been addressed or at least viewed anyway. 13 MR. D'ANNA: One quick question. John

14 D'Anna. And this is just a general question. How do our 15 rules affect lawyers from other states whose ads are run 16 in Louisiana say on cable TV, and you see the law office 17 of so and so and so and so in New York, or do our rules 18 even effect those guys? You see class action 19 advertisements, you see serious personal injury 20 advertisements by the law office of so and so. I mean -21 MR. PLATTSMIER: Our Rules -- this is

22 Chuck Plattsmier. Our Rules of Professional Conduct 23 under Rule 8.5 and Supreme Court Rule 19, Section 6, 24 expands our jurisdictional base to both lawyers who are 25 licensed to practice law in Louisiana and who are

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1 physically present here and those who are outside of the 2 State of Louisiana but who offer to provide services here 3 or seek representation here or seek to advertise by 4 perception. Is that constitutional? There may not be a 5 mechanism by which we can prohibit an out of state firm 6 from providing informational advertising opportunities 7 within this state, but if they choose to do so they fall, 8 within my judgment, within the same parameters that we 9 are proposing for lawyers who are here advertising and 10 practicing. So they would have to take cognizance of and 11 imply with the very same rules that you and I will be 12 obliged to follow shall we advertise. 13 MR. SHEA: This is Larry Shea. Just to

14 let you know, I believe it is the committee's intent by 15 way of these rules to cover by these rules any 16 advertisement, any advertising that is directed at 17 Louisiana residents. So if it is in any way directed to 18 obtain Louisiana residents as clients, we would consider 19 it to be within the purview of our rules to say that that 20 doesn't comply, and the lawyer or lawyers responsible for 21 it could be subject to whatever could be done to those 22 lawyers by way of our disciplinary system. 23 MR. LEMMLER: I'd also note for you, with

24 respect to your comment, that in Florida's latest 25 provision of their rules in their Rule 7.1 they have now

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1 added an additional section which again would be -- I 2 didn't discuss yet or get to, but they have added an 3 additional section which says that these rules will apply 4 to advertisements by out of state lawyers admitted to 5 practice in other jurisdictions who have established a 6 regular or permanent presence in Florida for the practice 7 of law as authorized by other law and who solicit or 8 advertise for legal employment in Florida or who target 9 solicitation or advertisements for legal employment at 10 Florida residents. So presumably the committee will be 11 looking at this part of Florida's revision as well and 12 that may address what you're talking about. 13 I think that wraps it up. One more slide.

14 Online comments, and then CLE credit. You actually get 15 an hour of ethics CLE for enduring my presentation. 16 MR. BAILEY: This is Jack Bailey again. I

17 know that we have constitutional issues on commercial 18 free speech, and of course, as y'all already know, I am a 19 proponent of the strictest possible regulation of 20 personal injury advertising that we can have. And I'll 21 comment I see the bankruptcy advertisements, and I have 22 to tell you I find absolutely nothing misleading about 23 them, but I always -- and I have to tell you, even in my 24 own ads I think that they are probably inherently 25 misleading to the public.

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1

So my question is, as a proponent of the

2 strictest regulations we can possibly have, has the 3 committee tried to draw these as close to the 4 constitutional boundaries as we think we can, or are they 5 backed away from what we think the constitutional 6 boundaries are? I mean, are we right up to the line we 7 think we can have? 8 MR. PLATTSMIER: Jack, I'll speak to it.

9 As a member of both committees, as each particular 10 proposed rule was analyzed, my view was always to draft 11 this on top of the line or as near within its parameters 12 as is possible for two reasons. I echo your concerns 13 about lawyer advertising in general and that pertain to 14 the personal injury field in particular. Second, my view 15 is that the Florida rules were designed to be an 16 aggressive -- an attempt at aggressive regulation as 17 opposed to the perception that the ABA model rules were 18 less so historically. And third, we are responding in 19 some measure to a legislative concern expressed within 20 the Senate hearings and as supported by an overwhelming, 21 if I'm not mistaken, resounding majority of the Senate 22 that voted on the bill that something aggressive and 23 extensive needed to be done to address the public 24 perception and the legislative perception that lawyer 25 advertising had heretofore been improperly or

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1 inadequately regulated. 2 So all of those things affected my view

3 and affected my comment and input at that stage. My 4 perception was that my colleagues around the table shared 5 much of that concern, and so in the drafting of the rules 6 the premise was to be as aggressive in the regulation of 7 lawyer advertising as is constitutionally permitted by 8 reviewing all of the prior case law. I hope that's a 9 fair characterization. 10 MR. GREGORIO: This is Sam Gregorio. I

11 think that's a fair characterization. 12 MR. SHEA: I also agree as a member of

13 both committees. I agree that we have done that, and I 14 believe that's what was dictated to us by the legislature 15 as to what their desire was, but I want to reiterate and 16 make sure it's clear but we at the same time have not 17 tried to do anything that we perceived in any way would 18 be a violation of the commercial free speech rights of 19 the attorneys to advertise, it being our intention that 20 they have every bit of the constitutional rights that 21 they are permitted but for us to regulate to that extent. 22 23 24 MR. GREGORIO: I agree with that also. MR. PLATTSMIER: Okay. MR. LEMMLER: All right. I think, unless

25 there are any other comments, we're concluded. Thank you

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1 for coming. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * * * (End of hearing.)