Loughlin v. Tweed et al

Filing 102

ORDER & REASONS granting 70 Motion for Partial Summary Judgment & 76 Motion for Partial Summary Judgment. The plaintiff's claims are hereby dismissed with prejudice. Signed by Judge Martin L.C. Feldman on 10/1/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEARNEY LOUGHLIN

CIVIL ACTION

v.

NO.

GREGORY TWEED, ET AL.

SECTION "F"

15-649

ORDER AND REASONS
Before

the

Court

are

the

defendants'

two

motions:

1)

defendant, Gregory Tweed's, motion for partial summary judgment on
the plaintiff's Section 1983 claims; and 2) a motion for partial
summary judgment on the constitutionality of certain Louisiana
Rules of Professional Conduct brought by all defendants, Gregory
Tweed; the Louisiana Attorney Disciplinary Board (LADB); R. Steven
Tew, in his official capacity as Chair of the LADB; and Charles B.
Plattsmier, in his official capacity as Chief Disciplinary Counsel
of the LADB. For the reasons that follow, the motions for partial
summary judgment are GRANTED.
Background
Louisiana attorney Kearney Loughlin brings this suit against
the defendants challenging their prosecution of him based on the
content of his professional Web site. The Louisiana Office of
Disciplinary Counsel filed a series of formal charges against Mr.

1

Loughlin.1 In June of 2008, the ODC received a complaint alleging
that Mr. Loughlin had been held in contempt for making false
statements of fact to a Louisiana district court judge.2 The ODC
filed formal charges against Loughlin in connection with the
contempt complaint on June 23, 2011. In October of 2011, Gregory
Tweed, a deputy disciplinary counsel to the ODC, initiated a second
complaint against Loughlin. This second complaint is the primary
subject matter of this lawsuit.
In a letter sent to Mr. Loughlin on October 28, 2011, Tweed
explained that the ODC had received information indicating Loughlin
maintained

a

Web

site

that

did

not

appear

to

comply

with

Louisiana's Rules of Professional Conduct pertaining to attorney
advertising. The letter stated:
Our observation of the enclosed referenced web page
indicates that your firm "specializes in maritime
personal injury and death cases." However, no such

1

A total of three separate complaints were filed against
Loughlin. The primary dispute in this case involves the third
complaint related to violations of the attorney advertising
rules. The second complaint, which involved a judgment holding
Loughlin in contempt of court, is important because of its
chronological connection to the third complaint. The first
complaint, which charged that Loughlin engaged in inappropriate
ex parte communications with an opposing expert witness, is
unrelated.
2

Judge Nadine M. Ramsey on August 18, 2006, held
Loughlin in contempt for misrepresenting material facts regarding
service of notice of hearing. See Talton v. USAA Casualty Ins.
Co., No. 2005-12956 (Orleans Parish Civ. Dist. Ct. Sept. 12,
2006)(order holding in contempt). The Louisiana Fourth Circuit
affirmed the judgment, and the Louisiana Supreme Court denied an
application for certiorari.
2

specialty is recognized in this State. Also, the website
states that the firm name is "Loughlin and Loughlin;"
however, it is our understanding that you are a sole
practitioner and your wife is employed full time by the
US 5th Circuit.
In a letter dated November 6, 2011, Loughlin replied that he
had requested that the Web site be taken down in 2009, and he was
not aware that any part of the Web site was still accessible to the
public. He said that he had contacted the Web host company and
"informed it that a portion of the website was evidently still
accessible." He explained that it was his understanding that, after
speaking to the Web host company, "now none of the website is
accessible by any means."3 He added that "[t]he only specialization
referred to on the former web site was to my Certificate of
Specialty in Maritime Law issued by Tulane Law School," which
Loughlin believed was in compliance with Louisiana's advertising
rules.
In December of 2011, Tweed sent another letter to Loughlin
advising him that the ODC had concluded as follows:
Based upon our personal observation of the website in
question, it appears that you have violated Rule
7.2(c)(5) of the Rules of Professional Conduct.
Specifically, there is not now, nor has there ever been,

3

Loughlin attached to his letter an email exchange between
himself and the Web host company. In response to Loughlin's
inquiry about the Web site, the company replied, "All pages have
been completely removed from our server and are no longer
accessible. For some reason the Practice Area page was still
listed in Google. If someone used that link they could see part
of the site and navigate through it bypassing the redirect to the
holding page we created."
3

a recognized specialty in the field of "maritime personal
injury and death cases" as set forth on the main page of
your website. While Tulane offers a degree program in
Admiralty, this does not create a recognized specialty
with the Louisiana Board of Legal Specialization. Even if
this degree program did create a recognized specialty,
there are formal requirements that must be adhered to in
the advertisement, which were not a part of the webpage
viewed by this office.
Tweed explained that the ODC would dispose of the matter by private
discipline if Mr. Loughlin would accept an admonition. Mr. Loughlin
declined the ODC's proposed admonition.
On February 2, 2012, the Office of Disciplinary Counsel
brought

formal

charges

against

Loughlin

on

the

advertising

complaint. The ODC alleged that on or about October 13, 2011,
deputy disciplinary counsel Gregory Tweed had personally seen the
Web site, and that the page "states that you 'specialize' in
'maritime personal injury and death cases.'

However, no such

specialty

Board

is

Specialization.

recognized

by

the

Louisiana

of

Legal

Further, the ad does not contain the full name of

any other organization granting such certification."

The ODC

alleged that the Web site violated Rule 7.2(c)(1)(B) and Rule
7.2(c)(5), adding later that it also violated former Rule 7.4.
Louisiana Rule of Professional Conduct 7.2(c)(1)(B) states:
(1) A lawyer shall not make or permit to be made a false,
misleading or deceptive communication about the lawyer,
the lawyer's services or the law firm's services.
A
communication violates this Rule if it . . . (B) is
false, misleading or deceptive.
Rule 7.2(c)(5) states:

4

(5) Communication of Fields of Practice. A lawyer may
communicate the fact that the lawyer does or does not
practice in particular fields of law. A lawyer shall not
state or imply that the lawyer is "certified," "board
certified," an "expert" or a "specialist" except as
follows:
(A) Lawyers Certified by the Louisiana Board
of Legal Specialization. A lawyer who complies
with the Plan of Legal Specialization, as
determined by the Louisiana Board of Legal
Specialization, may inform the public and
other lawyers of the lawyer’s certified
area(s) of legal practice. Such communications
should identify the Louisiana Board of Legal
Specialization as the certifying organization
and may state that the lawyer is "certified,"
"board certified," an "expert in (area of
certification)" or a "specialist in (area of
certification)."
(B) Lawyers Certified by Organizations Other
Than
the
Louisiana
Board
of
Legal
Specialization or Another State Bar. A lawyer
certified by an organization other than the
Louisiana Board of Legal Specialization or
another state bar may inform the public and
other lawyers of the lawyer’s certified
area(s) of legal practice by stating that the
lawyer is "certified," "board certified," an
"expert in (area of certification)" or a
"specialist in (area of certification)" if:
(i) the lawyer complies with Section
6.2
of
the
Plan
of
Legal
Specialization for the Louisiana
Board of Legal Specialization; and,
(ii) the lawyer includes the full
name of the organization in all
communications pertaining to such
certification. A lawyer who has been
certified by an organization that is
accredited by the American Bar
Association is not subject to
Section 6.2 of the Plan of Legal
Specialization.
5

Former

Rule

7.4,

which

was

repealed

and

replaced

with

Rule

7.2(c)(5), provided:
A lawyer shall not state or imply that the lawyer is
certified, or is a specialist or expert, in a particular
area of law, unless such certification, specialization or
expertise has been recognized or approved in accordance
with the rules and procedures established by the
Louisiana Board of Legal Specialization.
In Loughlin's answer to the ODC's formal charges, he stated,
"Although the website was off-line, the Office of Disciplinary
Counsel was able to access a single page of the website on October
13, 2011." Loughlin maintained that "[a] plain reading of the
language in question is that the focus of respondent's practice was
maritime personal injury and death claims, rather than a claim of
particular expertise or legal specialization." But even if the
website did claim a specialization, Loughlin contended that it
complied with Rule 7.2(c)(5)(B) by naming Tulane University Law
School, an organization accredited by the American Bar Association,
as the certifying organization.
In March of 2012, the Louisiana Attorney Disciplinary Board
consolidated the contempt charges with the advertising charges upon
motion by the ODC. Before the scheduled disciplinary hearing, the
parties filed pre-hearing memoranda to the presiding committee. In
its memorandum, the ODC moved to dismiss the contempt charges,
reasoning that it believed it lacked sufficient evidence to meet
its burden of proof. The contempt charges were dropped, and the ODC
6

proceeded against Loughlin with only the advertising charges.
As required by the disciplinary procedures, Loughlin submitted
the names of the witnesses he intended to call at the hearing.
Tweed was not identified as a witness. In his memorandum, Loughlin
stated that he "did not maintain a web site on or about October 13,
2011, as ODC alleges," and demanded "clear and convincing proof to
the contrary." In the same memorandum, Loughlin attacked the
constitutionality

of

Rule

7.2(c)(5)(B)

based

on

this

Court's

decision in Public Citizen, Inc. v. Louisiana Attorney Disciplinary
Board, 642 F. Supp. 2d 539 (E.D. La. 2009).4
The hearing was held on February 5, 2013, by a three-member
committee of the Louisiana Attorney Disciplinary Board. Loughlin's
constitutional

claims

arise

from

the

proceedings

at

his

disciplinary hearing.
At the hearing, Loughlin objected to the ODC's introduction of
an exhibit that showed a screen shot of Loughlin's Web site with
the allegedly offending language.5 Tweed, who was representing the
ODC in the matter, responded that Loughlin had waived his right to
object because Loughlin had previously stipulated to the exhibit in
accordance with the disciplinary procedures. Loughlin argued:

4

As more fully explained later, in that case, this Court
held that certain Louisiana Rules of Professional Conduct
pertaining to attorney advertising were unconstitutional. But the
rules that Loughlin allegedly violated, however, were not
addressed by the Court.
5

The exhibit was labeled, "ODC 1."
7

ODC 1 is a new exhibit. I had no objection to the
old exhibit, which is just part of the formal webpage.
The new exhibit contains the, whatever you call it, the
scroll or the writing at the bottom of the page
indicating the date of October 2011, when it was
evidently viewed, which is one of the issues in this
case, as whether the website was even accessible in 2011,
2010, or part of 2009. So that goes to that issue.
My
understanding
is,
although
ODC
is
the
complainant, nobody from ODC is going to testify to say
this is an authentic webpage that I viewed on X date and
here it is.
Tweed responded, "The only difference between the prefiled
exhibit and this one is that the exhibit sticker covered the date.
We simply moved the sticker so that the date could be revealed."
Loughlin replied:
The date is a material difference between these two
exhibits. The date goes to whether this website was even
around. And there's no testimony laying that foundation.
There's no one to testify saying it's authentic, it's
genuine, that this was seen by the complainant in October
2011, whatever date it was.
Tweed pointed out:
The exhibit with the date on it was attached to the
formal charges. And the date is visible on the formal
version that's attached to the formal charges. So I don't
know why this would be an issue now.
Upon further protests by Loughlin, Tweed stated:
I pulled it up. In part of my research into the other
charges that have been dismissed, I pulled up his
website. I saw it.
A panelist on the committee responded:
I don't think there would
testifying to that limited.

be

an

objection

Tweed, who was representing the ODC, then said:

8

to

you

I can't testify. I mean, I can tell the committee right
now that on October 13, 2011, I personally went to
Google. I typed in Kearney Loughlin, Attorney, New
Orleans.
The
first
link
that
came
up
was
Loughlin&Loughlin.com. I hit the link, and ODC Exhibit 1
was the first thing I saw, and I printed it out and sent
it to him and provided him notice.
Loughlin maintained his protests, arguing that he should have an
opportunity to cross-exam any witness and that he was entitled to
have Tweed's statement in evidentiary form. The Chairman of the
committee ruled on the issue:
Being that the date was visible on the copy attached to
the formal charges, I don't think there's any surprise
going on here. I'll rule it admitted.
The hearing committee issued a report on May 21, 2013, finding
that Rules 7.2(c)(1)(B) and 7.2(c)(5) did not apply to Web sites,
but that Loughlin's use of the word "specializing" violated former
Rule

7.4.

reprimanded,

The

committee

required

to

recommended

attend

a

that

continuing

he

be

legal

publicly
education

program on lawyer advertising, and assessed costs.
Loughlin

objected

to

the

hearing

committee's

report

and

briefed the issues to the Louisiana Attorney Disciplinary Board,
which held oral argument on July 18, 2013.

Nine months later, the

Board issued its ruling, in which it adopted all of the hearing
committee's factual findings.
hearing

committee's

The Board, however, rejected the

conclusion

that

Rules

7.2(c)(1)(B)

and

7.2(c)(5) do not apply to Web sites, but agreed that ODC had failed
to prove a violation of those rules because there was not clear and

9

convincing evidence that Loughlin's Web site was online at the time
the rules were in force.6 The Board agreed with the hearing
committee that Loughlin's former Web site violated former Rule 7.4.
The Board noted, however, that there was insufficient evidence in
the record to reach a conclusion on the constitutionality of Rule
7.4.

Nonetheless, the Board agreed with the sanctions imposed by

the hearing committee.7
Loughlin appealed the Board's ruling to the Louisiana Supreme
Court. The State's high court dismissed all charges against him,
finding that his actions in drafting his Web site were not taken
with a culpable mental state and that they caused no harm to the
public.

In re Loughlin, 148 So.3d 176, 178 (La. 2014).

The

Supreme Court did not reach the constitutional issues.
Loughlin then filed suit in this Court seeking damages under
Section 1983 against the defendant, Gregory Tweed, for violating
his constitutional rights. Specifically, Loughlin contends that
Tweed falsely asserted that his Web site was online in 2011, and
that Tweed initiated charges against him as the complaining witness
and later refused to give sworn testimony and be cross-examined. He
also claims that Tweed "knowingly concealed the Judgment rendered
by this Court [in Public Citizen] and knowingly concealed the

6

The current rules took effect in 2009.

7

Loughlin also contends that the Board refused to consider
representations the Board had previously made to the Fifth
Circuit in Public Citizen, 632 F.3d 212 (5 Cir. 2011).
10

judicial admissions and representations made by defendants to the
Fifth Circuit [also in Public Citizen]." He also claims that the
attorney advertising rules are unconstitutional and seeks to enjoin
the defendants from enforcing them. Finally, he asks the Court to
hold the defendants in contempt for enforcing the advertising rules
contrary to this Court's order in Public Citizen.
Given the importance the plaintiff places on the Court's
decision in Public Citizen, it is necessary to reiterate the
Court's findings. In that case, the Court held that the following
Rule 7.6(d) was unconstitutional:
Advertisements.
All computer-access communications
concerning a lawyer's or law firm's services, other than
those subject to subdivisions (b)8 and (c)9 of this Rule,
are subject to the requirements of Rule 7.2 when a
significant motive for the lawyer's doing so is the
lawyer's pecuniary gain.
The Court distinguished Internet information from the more popular
fads of tv, radio, and print solicitations of law cases, and found
that

the

defendants,

which

included

the

Louisiana

Attorney

8

Subdivision (b) is entitled "Internet Presence" and
governs "[a]ll World Wide Web sites and home pages accessed via
the Internet that are controlled, sponsored,, or authorized by a
lawyer or law firm and that contain information concerning the
lawyer's or law firm's services." Subdivision (b)(3) states that
such Web sites "are considered to be information provided upon
request and, therefore, are otherwise governed by the
requirements of Rule 7.9." Rule 7.9, in turn, states that such
information shall comply with the requirements of Rule 7.2 unless
otherwise provided in Rule 7.9.
9

Subdivision (c) applies to unsolicited electronic mail
communications.
11

Disciplinary Board:
ha[d] not shown that the State studied online advertising
techniques or methods and then attempted to formulate a
Rule that directly advanced the State's interests and was
narrowly tailored with respect to Internet advertising.
Instead, the State, through its high court, simply
applied the same Rules as those developed for television,
radio, and print ads to Internet advertising. This Court
is
persuaded
that
Internet
advertising
differs
significantly from advertising in traditional media.
Public

Citizen,

642

F.Supp.2d

at

559.

Holding

Rule

7.6(d)

unconstitutional, the Court found that the defendants had not met
their burden of showing that the Rule directly and materially
advanced the State's interests or was narrowly tailored.

Id.

Tweed contends that he is entitled to qualified immunity. He
claims that he Googled "Kearney Loughlin, New Orleans, attorney,"
in his official capacity as a deputy of the ODC in connection with
his investigation of the contempt charges filed against Loughlin on
June 23, 2011; that he acted in accordance with his official duties
by submitting the potential violation to the ODC for screening.
Tweed claims that Loughlin fails to overcome the applicable
burden of proof to show that (1) Tweed violated the plaintiff's
constitutional

right;

and

2)

Tweed's

conduct

was

objectively

unreasonable in light of clearly established law at the time of the
conduct. Because he followed the Rules of Professional Conduct that
were in effect by orders of the Louisiana Supreme Court, and none
of those rules had been declared unconstitutional, Tweed submits
that what he did was not objectively unreasonable in initiating

12

charges against Loughlin.
With regard to Loughlin's Sixth Amendment claims, Tweed, for
purposes of this Court's decision, points out that prior to the
disciplinary hearing, Loughlin never advised Tweed that he wanted
him to testify. He did not list Tweed as a potential witness in his
pre-hearing memorandum, which required that all potential witnesses
be identified. Nor did he seek to subpoena Tweed to testify. Even
at the hearing, while he argued that Tweed should testify, he did
not ask the hearing officer to compel Tweed to testify. Under the
circumstances, Loughlin waived his right to call as a witness.
All defendants contend that Rules 7.2(c)(5) and former Rule
7.4

pass

constitutional

muster

because

they

only

restrict

commercial speech that is false or inherently likely to deceive,
which the Supreme Court has found receives no constitutional
protection. The Rule restricts "only communications that state or
imply that a lawyer is 'certified,' 'board certified,' an 'expert'
or a 'specialist,' and only if a lawyer is not actually certified
as a specialist." (Emphasis in original). The defendants point to
empirical evidence in the record that establishes that the term
"specialist" is inherently deceptive in the mind of the public.
Alternatively, the defendants urge that the challenged rules
are only "potentially" misleading, in which case they still pass
constitutional muster under the Central Hudson Gas & Electric Corp.
v. Public Service Commission test. 447 U.S. 557, 563-64 (1980).
13

They claim that the challenged rules are narrowly drawn to directly
advance the substantial state interests of protecting the public
from misleading lawyer advertising and maintaining the standards
and integrity of the legal profession.
Loughlin counters that defendant Tweed was not performing his
discretionary duties as disciplinary counsel when he initiated the
advertising

complaint.

Rather,

he

claims

that

Tweed

was

the

complaining witness. Based on this premise, the plaintiff concludes
that Tweed is not entitled to qualified immunity.
Loughlin adds that the defendants have not rebutted the
presumption that the rules are unconstitutional. He claims that
Rule

7.4

(which

has

been

replaced

by

Rule

7.2(c)(5))

is

an

overbroad, content-based restriction of truthful speech.10
The plaintiff also attacks Rule 7.2(c)(5). He claims that the
Rule does not apply to attorney Web sites. He says that Web sites
are governed by Rule 7.6(b), which also subjects Web sites to Rule
7.9. His combined reading of those rules is that attorney Web sites
are not a form of advertising and are not governed by Rule 7.2.11
The plaintiff seeks to enjoin the defendants from applying the

10

Curiously, the plaintiff spends half of his twenty-page
brief discussing the constitutionality of Rule 7.4 - a rule that
no longer exists.
11

But Rule 7.9(a) specifically states, "Information
provided about a lawyer's or law firm's services upon request
[e.g., a Web site] shall comply with the requirements of Rule 7.2
unless otherwise provided in this Rule 7.9."
14

advertising rules to attorney Web sites, incorrectly invoking this
this Court's decision in Public Citizen.
I. Standard
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine dispute of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5 Cir. 1992).

Rather, he must come forward with
15

competent evidence, such as affidavits or depositions, to buttress
his claim. Id. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at
trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5 Cir. 1987);
FED. R. CIV. P. 56(c)(2).

Finally, in evaluating the summary

judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.

Anderson, 477 U.S. at 255.

II. The Effect of Public Citizen
In Public Citizen, Inc. v. Louisiana Disciplinary Board, et
al.,

the

Court

considered

the

constitutionality

of

several

Louisiana Rules of Professional Conduct as they relate to attorney
advertising and the First Amendment. 642 F. Supp. 2d 539 (E.D. La.
2009), aff'd in part and rev'd in part, 632 F.3d 212 (5 Cir. 2011).
There,

the

Court

held

that

the

following

Rule

7.6(d)

was

unconstitutional:
Advertisements.
All computer-access communications
concerning a lawyer's or law firm's services, other than
those subject to subdivisions (b)12 and (c)13 of this
Rule, are subject to the requirements of Rule 7.2 when a
significant motive for the lawyer's doing so is the
12

Subdivision (b) is entitled "Internet Presence" and
governs "[a]ll World Wide Web sites and home pages accessed via
the Internet that are controlled, sponsored, or authorized by a
lawyer or law firm and that contain information concerning the
lawyer's or law firm's services."
13

Subdivision (c) applies to unsolicited electronic mail
communications.
16

lawyer's pecuniary gain.
The Court distinguished Internet information from the more popular
fads of tv, radio, and print solicitations of law cases, and found
that

the

defendants,

which

included

the

Louisiana

Attorney

Disciplinary Board:
ha[d] not shown that the State studied online advertising
techniques or methods and then attempted to formulate a
Rule that directly advanced the State's interests and was
narrowly tailored with respect to Internet advertising.
Instead, the State, through its high court, simply
applied the same Rules as those developed for television,
radio, and print ads to Internet advertising. This Court
is
persuaded
that
Internet
advertising
differs
significantly from advertising in traditional media.
Public

Citizen,

642

F.Supp.2d

at

559.

Holding

Rule

7.6(d)

unconstitutional, the Court found that the defendants had not met
their burden of showing that the Rule directly and materially
advanced the State's interests or was narrowly tailored.

Id.

Relying on the Court's decision in Public Citizen, Loughlin
seeks to enjoin or estop the defendants from applying the attorney
advertising rules to his Web site. He references excerpts from
argument held before this Court and briefs submitted to the Fifth
Circuit in which counsel representing LADB argued that Web sites
are

different

from

advertisements

because

Web

sites

are

"information upon request." His portrayal of Public Citizen is
incorrect.
This Court in Public Citizen struck down a rule that subjected
17

all "computer-access communications" to the requirements of Rule
7.2 except Web sites and unsolicited electronic mail. Web sites
were unaffected by the Court's decision regarding Rule 7.6(d).
Moreover, both parties agree that Rule 7.6(b) governs attorney Web
sites. That Rule expressly states that attorney Web sites "are
considered to be information provided upon request and, therefore,
are

otherwise

Accordingly,

governed

the

by

plaintiff's

position in Public Citizen

the

requirements

contention

of

regarding

Rule
the

7.9."
LADB's

is off the mark.14 The plaintiff's

request to enjoin the defendants from applying the advertising
rules to Web sites based on this Court's decision in Public Citizen
is patently misguided. The Court did not address the applicability
of the advertising rules to attorney Web sites in Public Citizen.
Nor does the Court resolve that issue here.
III. Section 1983 Claims
A.
Title 42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under color
of state law; it provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects,
or causes to be subjected, any ... person within the

14

Attorney Web sites are "information upon request" under
Rule 7.6(b). However, "information upon request" is still subject
to the general requirements of Rule 7.2 pursuant to Rule 7.9(a).
18

jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.
To establish § 1983 liability, the plaintiff must satisfy three
elements:
(1)

deprivation of a right secured by the U.S. Constitution
or federal law,

(2)

that occurred under color of state law, and

(3)

was caused by a state actor.

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5 Cir. 2004) (citation
omitted).
Tweed responds to Loughlin's § 1983 claims by asserting
qualified immunity. When a plaintiff seeks money damages from
government officials for alleged violations of constitutional or
statutory rights, officials sued in their individual capacities may
invoke the defense of qualified immunity. Because it is an immunity
from suit and not a defense to liability, courts are advised to
resolve the issue "at the earliest possible stage in litigation."
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).
"Qualified immunity shields government officials from civil
damages liability," the U.S. Supreme Court has reiterated, "unless
the official violated a statutory or constitutional right that was
clearly

established

at

the

time

of

the

challenged

conduct."

Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012)(citing Ashcroft v.
19

al-Kidd, 131 S.Ct. 2074, 2080 (2011)); Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (This doctrine protects government officials
against individual civil liability "insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known."). In other words,
qualified immunity "protects all but the plainly incompetent or
those who knowingly violate the law, so we do not deny immunity
unless

existing

precedent

must

have

placed

constitutional question beyond debate."

the

statutory

or

Morgan v. Swanson, 659

F.3d 359, 370-71 (5 Cir. 2011) (en banc) (internal quotations,
citations, and footnotes omitted).

"Qualified immunity balances

two important interests -- the need to hold public officials
accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when
they perform their duties reasonably."

Pearson v. Callahan, 555

U.S.

protection

223

(2009)

(noting

that

"[t]he

of

qualified

immunity applies regardless of whether the government official's
error is a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact.").
In

resolving

a

government

official's

qualified

immunity

defense, courts have traditionally applied the two-prong process
articulated

in

Siegert

v.

Gilley,

500

U.S.

226

(1991),

and

confirmed by the Supreme Court again in Saucier v. Katz, 533 U.S.
194 (2001).

First, the Court must determine whether the plaintiff
20

has shown a violation of a constitutional right.

Id. at 201.

The

second inquiry requires the Court to consider "whether the right at
issue was 'clearly established' at the time of the defendant's
alleged misconduct."

Pearson v. Callahan, 555 U.S. 223 (2009).

Although the Supreme Court has left to the district court's
discretion the sequence for undertaking these two inquiries, the
Supreme Court has increasingly indicated a preference for first
considering whether a purported right was clearly established by
prior case law "without resolving the often more difficult question
whether the purported right exists at all."

Reichle, 132 S.Ct. at

2093 ("This approach comports with our usual reluctance to decide
constitutional questions unnecessarily."); Camreta v. Greene, 131
S.Ct. 2020, 2031 (2011) (observing that "our usual adjudicatory
rules suggest that a court should forbear resolving this issue")
(emphasis in original); Pearson, 555 U.S. at 238-39 (listing
circumstances in which courts might be best served to bypass the
first step of the Saucier process, such as "when qualified immunity
is asserted at the pleadings stage, the precise factual basis for
the plaintiff's claim or claims [is] hard to identify").
Once a defendant has invoked the defense of qualified
immunity, the burden shifts to the plaintiff to show that the
defense is unavailable.

Collier v. Montgomery, 569 F.3d 214,

217-18 (5 Cir. 2009); McClendon v. City of Columbia, 305 F.3d 314,
323 (5 Cir. 2002) (en banc).

"Although qualified immunity is
21

'nominally

an

affirmative

defense,'

the

plaintiff

bears

a

heightened pleading burden 'to negate the defense once properly
raised.'"

Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012)

(quoting Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008)).
In response to a qualified immunity defense, "plaintiffs suing
governmental officials in their individual capacities must allege
specific conduct giving rise to the constitutional violation."
Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5 Cir.
1999); see also FED. R. CIV. P. 7(a).
Public officials are summarily entitled to qualified immunity
unless (1) the plaintiff adduces sufficient evidence to raise a
genuine dispute of material fact suggesting the official's conduct
violated an actual constitutional right; and 2) the defendant's
conduct

was

objectively

unreasonable

in

light

of

clearly

established law at the time of the conduct. Poole v. City of
Shreveport, 691 F.3d 624, 627 (5 Cir. 2012)(quoting Brumfield v.
Hollins, 551 F.3d 322, 326 (5 Cir. 2008).
B.
The

plaintiff

claims

that

Tweed's

actions

violated

his

constitutional rights under the First and Sixth Amendments. The
facts underlying the plaintiff's Section 1983 claims are not in
dispute. The record shows that Tweed entered "Kearney Loughlin, New
Orleans, attorney" into a Google search and was able to pull up a
Web site titled "Loughlin & Loughlin." The Web site stated,
22

"Loughlin & Loughlin is a plaintiff-oriented pure litigation firm
specializing in maritime personal injury and death cases." Tweed
took a screen shot of the Web page and submitted it to the ODC for
screening. Based on the use of the word "specializing" on the Web
page,

the

ODC

opened

a

case

against

Loughlin

for

potential

violations of the Louisiana attorney advertising rules. The Court
addresses the alleged constitutional violations in turn.
1.
Loughlin alleges that Tweed violated his First Amendment
rights by: 1) falsely asserting that Loughlin's Web site was
accessible in October of 2011; and 2) falsely asserting that
Loughlin's Web site violated Louisiana's attorney advertising
rules.
i.
Loughlin's response to the ODC's initial complaint was that he
thought his Web site was not accessible to the public. Upon receipt
of the ODC's complaint, he contacted his Web host company to
request that it remove the Web page. Loughlin attached an email
correspondence between him and his Web host representative in which
he stated, "This web site is supposed to be offline and not
accessible pending substantial revisions. I learned yesterday that
at

least

some

of

the

web

site

can

still

be

seen."

The

representative replied on the following day, "All pages have been

23

completely removed from our server and are no longer accessible.
For some reason the Practice Area page was still listed in Google.
If someone used that link they could see part of the site and
navigate through it bypassing the redirect to the holding page we
created."
In

his

answer

to

the

ODC's

formal

charges,

Loughlin

reiterated, "Although the website was off-line, the Office of
Disciplinary Counsel was able to access a single page of the
website on October 13, 2011." Nonetheless, on the day of his
disciplinary hearing, Loughlin asserted that, "one of the issues in
this case [is] whether the website was even accessible in 2011 . .
. ." Even viewed in a light most favorable to the plaintiff, the
record is clear that Loughlin had full knowledge that Tweed was
able to access his Web site in October of 2011. Loughlin's claim
that Tweed falsely asserted that the Web site was accessible in
October of 2011 is betrayed by his own admissions.
ii.
Loughlin also alleges that Tweed violated his First Amendment
rights by falsely asserting that Loughlin's Web site was subject to
the attorney advertising rules. Tweed responds that he is entitled
to qualified immunity because his conduct was not objectively
unreasonable in light of clearly established law at the time.
Loughlin replies that Tweed is precluded from the defense of
qualified immunity because he was not performing a discretionary
24

function of his office. And that is pivotal to this question.
Tweed's entitlement to qualified immunity turns on whether he
was acting in his official capacity as deputy disciplinary counsel
or as a complaining witness when he submitted the screen shot of
Loughlin's website to the ODC for screening. Tweed maintains that
he discovered the Web site in the course of his investigation
involving
on

June

the contempt charges filed by the ODC against Loughlin
23,

2011,

which

were

eventually

dismissed.

Loughlin

responded to those contempt charges in August of 2011. Two months
later, on October 13, Tweed discovered the alleged offending
language on Loughlin's Web site after searching for his name on the
Internet.
Louisiana Supreme Court Rule XIX § 4(B) vests the disciplinary
counsel with the following powers and duties:
(1) To screen all information coming to the attention of
the agency to determine whether it concerns a lawyer
subject to the jurisdiction of the agency because it
relates to misconduct by the lawyer or the incapacity of
the lawyer.
(2) To investigate all information coming to the
attention of the agency which, if true, would be grounds
for discipline . . . .
(3) To dismiss or recommend probation, informal
admonition, a stay, the filing of formal charges, or the
petitioning for transfer to disability inactive status
with respect to each matter brought to the attention of
the agency.

25

(4) To prosecute before hearing committees, the board, and the
court discipline, reinstatement and readmission proceedings,
and proceedings for transfer to or from inactive status.
Additionally, Rule XIX § 11(A) says:
The disciplinary counsel shall evaluate all information
coming to his or her attention by complaint or from other
sources alleging lawyer misconduct or incapacity.
Tweed correctly submits that these rules obligated him to
investigate Loughlin in connection with the contempt charges.
Tweed's

position

throughout

the

course

of

the

disciplinary

proceedings was that he searched for Loughlin's name during the
performance

of

his

investigatory

duties.

The

close

proximity

between the time that Loughlin filed a response to the contempt
charges in August of 2011 and the time Tweed discovered Loughlin's
Web site in October of 2011 adds credence to Tweed's testimony.
Loughlin has never disputed this fact.
Upon

discovering

the

potential

advertising

violation

on

Loughlin's Web site, Tweed took a screen shot and submitted it to
the ODC's screening department. Loughlin maintains that these
actions make Tweed the "complaining witness" in the case. The Court
finds that Loughlin's characterization of Tweed as the "complaining
witness" is misguided.
Tweed was obligated by his duties as deputy counsel to
investigate the contempt charges filed against Loughlin. It was not
unreasonable for Tweed to search for Loughlin's name on the

26

Internet. Upon discovering the Web site, Tweed was required "[t]o
investigate all information coming to the attention of the agency
which, if true, would be grounds for discipline." Tweed was not a
vigilante, who happened upon a potential conduct violation; he
discovered the Web site while conducting an official investigation
for the Bar committee. As deputy disciplinary counsel, Tweed
fulfilled his duty to evaluate and screen the new information that
he discovered on Loughlin's Web site. Thus, Tweed was acting in his
official capacity and not as a complaining witness.
Loughlin fails to satisfy the two-part test for qualified
immunity because on this record, Tweed's conduct in charging him
with violations of the advertising rules was not objectively
unreasonable in light of clearly established law. Tweed points out
that "[a]ll of the cited rules are currently in effect by Orders of
the Louisiana Supreme Court," and none of the rules were among
those

declared

unconstitutional

in

Public

Citizen.

The

Court

agrees.
2.
The

Court

has

already

determined

that

Loughlin

mischaracterizes Tweed as the "complaining witness," and that Tweed
was acting in his official capacity as disciplinary counsel at the
hearing. Loughlin never identified Tweed as a potential witness in
his pre-hearing papers, nor did Loughlin ever request the hearing
committee to compel Tweed's testimony.
27

Accordingly, Gregory Tweed's, motion for partial summary
judgment on the plaintiff's Section 1983 claims is GRANTED.
IV. Constitutionality of the Advertising Rules
The

United

commercial

States

speech

is

Supreme

protected

Court
under

first
the

Virginia State Board of Pharmacy in 1976.

recognized

First

that

Amendment

in

425 U.S. at 770. The

Supreme Court recognized that some regulation of commercial speech
is “clearly permissible,” but cautioned also that a state “may not
do so by keeping the public in ignorance” of truthful information.
Id.

Commercial speech is thus afforded less First Amendment

protection than other constitutionally guaranteed expression. See
id.; Bates v. State Bar of Arizona, 433 U.S. 350, 363-64 (1977);
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447
U.S. 557, 561-62 (1980). The Supreme Court applied First Amendment
protections to attorney advertising in Bates v. State Bar of
Arizona,

holding

that

“advertising

by

attorneys

may

not

be

subjected to blanket suppression,” but finding that advertising by
attorneys may still be regulated in some ways. 433 U.S. at 383.
“For commercial speech to come within [the First Amendment’s
protections], it at least must concern lawful activity and not be
misleading.”

Bd. of Trustees of the State University of N.Y. v.

Fox, 492 U.S. 469, 475 (1989). Therefore, “truthful advertising
related to lawful activities is entitled to the protections of the
First

Amendment,”

whereas

“[m]isleading
28

advertising

may

be

prohibited entirely.”

In re R.M.J., 455 U.S. 191, 202-03 (1982);

see Fla. Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995)).
Information that is only potentially misleading, however, may not
be banned entirely. See In re R.M.J., 455 U.S. at 203. Rather, as
articulated in Central Hudson Gas & Electric Corp. v. Public
Service Commission,447 U.S. 557, 563-64 (1980) states may regulate
non-misleading or potentially misleading advertising only if they
show a substantial interest, the regulation is narrowly drawn, and
the interference with speech is in proportion to the interest
served.
This Court must therefore decide first if the language that
the

attorney

advertising

rules

seek

to

restrict

is

either

inherently misleading or has been proven to be misleading; if so,
the state may “freely regulate” it.
24.

Went for it, 515 U.S. at 623-

If the advertising is not misleading, or is only potentially

misleading, this Court must then apply Central Hudson to determine
if the restrictions are narrowly tailored to further a substantial
government interest.

In making these determinations, the Court

notes that "[i]t is well established that 'the party seeking to
uphold a restriction on commercial speech carries the burden of
justifying it.'"

Edenfield v. Fane, 507 U.S. 761, 770 (1993)

(quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71 n.20
(1983)).

"This burden is not satisfied by mere speculation or

conjecture; rather, a governmental body seeking to sustain a
29

restriction on commercial speech must demonstrate that the harms it
recites are real and that its restriction will in fact alleviate
them to a material degree."

Id. at 770-71.

The Fifth Circuit has

held that evidence used to justify the state’s regulation need not
exist pre-enactment.

Pruett v. Harris County Bail Bond Bd., 499

F.3d 403, 410 (5 Cir. 2007).
A.
The defendants contend that the speech at issue restricted by
the advertising rules is not entitled to constitutional protection
because the speech in question is false, inherently likely to
deceive,

or

claims

a

quality

of

service

not

susceptible

of

measurement or verification. In support, they point to a survey
commissioned

by

the

American

Bar

Association's

Committee

on

Specialization. The survey teaches that "the public expects a
lawyer who claims to be a specialist to have certain qualifications
not necessarily expected of a non-specialist in the same field of
law, and to do a better job than a non-specialist." The defendants'
justification for regulating the word "specialist" is "to assure
the public that a lawyer claiming to be a specialist meets the
standards

the

public

expects

of

the

lawyer."

A

simple

acknowledgment of common sense.
1. Rule 7.2(c)(1)(B): Statements About Legal Services
This Rule prohibits a lawyer from making false, misleading, or

30

deceptive communications about the lawyer, the lawyer's services,
or the law firm's services. Because the restrictions apply only to
commercial speech that is "false, misleading, or deceptive," this
Rule

plainly

finds

shelter

within

the

commercial

speech

jurisprudence.
2. Rule 7.2(c)(5)(B): Communications of Fields of Practice
This Rule prohibits an attorney from stating or implying that
he

is

a

"specialist"

without

meeting

certain

qualifications.

Specifically, the attorney must either comply with Louisiana's Plan
of

Legal

Specialization

or

state

the

full

name

of

the

ABA-

accredited certifying organization. While the specialist survey
relied upon shows that the public attributes value to a person who
claims

to

be

"specialist."

a

"specialist,"

But,

his

Web

Loughlin

site

stated

never
that

used
his

the

firm

word
was

a

"plaintiff-oriented pure litigation firm specializing in maritime
personal injury and death cases." Is there some profound difference
between "specialist" and "specializing"? Plaintiff would have this
Court split hairs. The Court finds that Loughlin's description of
his firm as one "specializing in" maritime personal injury and
death cases is as functionally misleading as stating that one is a
"specialist," and therefore advances a substantial state interest.15

15

See infra Part B; see also THE AMERICAN HERITAGE DICTIONARY (2d
ed. 1982).
31

3. Former Rule 7.4: Replaced by Rule 7.2(c)(5)
Former

Rule

7.4

prohibited

an

attorney

from

stating

or

implying that he was certified, an expert, or a specialist unless
recognized as such by the Louisiana Board of Legal Specialization.
The

plaintiff

spends

a

great

deal

of

time

discussing

the

constitutionality of a repealed rule. The Court need not give an
advisory opinion on the constitutionality of a rule that is no
longer in effect.
Court's

Rule 7.4 was reenacted as Rule 7.2(c)(5). The

consideration

of

the

latter

Rule

renders

the

constitutionality of former Rule 7.4 moot.16
B.
The defendants assert two substantial state interests: 1)
protecting the public from unethical and potentially misleading
lawyer advertising; and 2) maintaining the ethical standards and
integrity of the legal profession. The Fifth Circuit held in Public
Citizen that "protecting the public from unethical and potentially
misleading advertising and preserving the ethical integrity of the
legal profession" are both substantial government interests. 632
F.3d 212, 220 (5 Cir. 2011).
"[A] governmental body seeking to sustain a restriction on
commercial speech must demonstrate that the harms it recites are

16

The Court also notes that all charges against Loughlin have
been dropped. Thus, Loughlin has suffered no injury from former
Rule 7.4.
32

real and that its restriction will in fact alleviate them to a
material degree." Public Citizen, 632 F.3d at 220; Edenfied. v.
Fane,

507

U.S.

761,

770-71

(1993);

Zauderer

v.

Office

of

Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 648-649
(1985). Defendants may do so with empirical evidence, studies, and
anecdotal evidence. Public Citizen, 632 F.3d at 220-21. The High
Court has also justified restrictions on speech based solely on
history, consensus, and "simple common sense." Florida Bar v. Went
For It, Inc., 515 U.S. 618, 628 (1995).
Noting that "consumers find legal services amongst the most
difficult to buy," the ABA Committee on Specialization explained:
While advertising may be somewhat useful in
assisting consumers in finding a lawyer, it can also lead
to misunderstanding and confusion about the lawyer's
skill and expertise. The proliferation of lawyer
advertising has created an even greater need to
objectively identify those with the requisite degree of
skill.
A certification addresses a genuine public need for
better information on the qualifications and capabilities
of lawyers. Survey results indicate consumers find
information about a lawyer's specialty expertise useful.
Indeed, the American public is so accustomed to
certification of specialists, particularly professional
specialists, that some people now believe any lawyer who
has a specialty practice is board certified.
The empirical evidence shows that the public associates the
term "specialist" with an elevated quality of credentials. As such,
a lawyer claiming to be a specialist without basis is likely to
mislead a person seeking legal services. Limiting use of the word

33

"specialist" to only those attorneys who have attained, through
approved certification programs, the heightened skill set commonly
associated with a specialist protects the public from potentially
misleading

forms

of

advertisement.

Thus,

the

specialist

rule

directly advances a substantial state interest.
Therefore, IT IS ORDERED that the defendant, Gregory Tweed's,
motion for summary judgment on the plaintiff's Section 1983 claims
is hereby GRANTED.
IT IS FURTHER ORDERED that the defendants' motion for summary
judgment on the plaintiff's claims that the Louisiana Rules of
Professional Conduct are unconstitutional is hereby GRANTED.
The plaintiff's claims are hereby dismissed with prejudice.
New Orleans, Louisiana, October 1, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

34