IN THE SUPREME COURT OF FLORIDA NO. SC THE FLORIDA BAR, Complainant, v. OLIVER PERRY TANKSLEY III, Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA NO. SC THE FLORIDA BAR, Complainant, v. OLIVER PERRY TANKSLEY III, Respondent. ON A PETITION AND A CROSS-PETITION FOR REVIEW FROM A REFEREE S REPORT AMENDED REPLY AND CROSS-ANSWER BRIEF OF OLIVER PERRY TANKSLEY III John G. Crabtree Florida Bar No John G. Crabtree, P.A. 328 Crandon Boulevard, Suite 225 Key Biscayne, Florida Telephone: (305) Facsimile: (305) Counsel for Oliver Perry Tanksley III

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3 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii SUMMARY OF ARGUMENT...1 REPLY POINTS Overview.2 2. Constitutional Law Issues The Flyer was Not Published in the Public Media Facts Regarding the Control Issue Permitting a Communication About a Lawyer or a Lawyer s Services is Not a Bar Violation Unless the Communication is False, Misleading, Deceptive, or Unfair...9 ANSWER ARGUMENT ON CROSS-PETITION The Referee s Recommended Punishment Is Appropriate for the Rules Violations Charged CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

4 Cases TABLE OF AUTHORITIES Page(s) Bolger v. Young s Drug Prods. Corp., 463 U.S. 60 (1983)...4 The Florida Bar v. Doe, 634 So. 2d 160 (Fla. 1994)... 5, 13 The Florida Bar v. Williams, 753 So. 2d 1258 (Fla. 2000) Greenberg v. Cardiology Surgical Ass'n, 855 So. 2d 234 (Fla. 1st DCA 2003)...5 Maggio v. Florida Dept. of Labor and Employment Security, 30 Fla. L. Weekly S174 (March 24, 2005), 2005 WL (Fla. 2005) Mason v. Florida Bar, 208 F.3d 952 (11 th Cir. 2000) NAACP v. Button, 371 U.S. 415 (1963)...4 P.D. v. Dept. of Children and Families, 866 So. 2d 100 (Fla. 1 st DCA 2004)...5 State ex rel The Florida Bar v. Nichols, 151 So. 2d 257 (Fla. 1963) Ulano v. Anderson, 626 So. 2d 1112 (Fla. 3d DCA 1993) United Transportation Union v. Michigan Bar, 401 U.S. 576 (1971)...4 ii

5 Other Provisions TABLE OF AUTHORITIES (CONTINUED) Page(s) R. Regulating Fla. Bar 4-7.2(b) R. Regulating Fla. Bar 4-7.2(c)(4)... passim R. Regulating Fla. Bar 4-7.3(b)... passim R. Regulating Fla. Bar 4-7.7(a)... passim R. Regulating Fla. Bar 4-8.4(a) iii

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7 SUMMARY OF ARGUMENT The referee found Mr. Tanksley guilty of violating Rules Regulating The Florida Bar: 4-7.2(c)(4) (disclosure of liability for expenses), 4-7.3(b) (general disclosure statement regarding the hiring of a lawyer), and 4-7.7(a) (filing of advertisements). The referee also made multiple findings in mitigation. Based on those findings of guilt and mitigation, the referee recommended that Mr. Tanksley attend the Bar s advertising workshop and pre-file all advertisements (exempt and non-exempt) for one year. If the Court otherwise approves the referee s findings, it should also approve the referee s recommendation as to discipline except for the requirement that Mr. Tanksley pre-file exempt advertisements. 1

8 REPLY POINTS 1. Overview In this case, Mr. Tanksley is charged with violating three of the Rules Regulating The Florida Bar: 4-7.2(c)(4) (disclosure of liability for expenses), 4-7.3(b) (general disclosure statement regarding the hiring of a lawyer), and 4-7.7(a) (filing of advertisements). While the Bar s brief suggests uncharged violations (like improper solicitation and lack of diligence), this reply will focus on the violations actually charged and the following related issues: (1) whether application of the Bar s regulations violates the First and Fourteenth Amendments under the facts of this case; (2) whether the flyer at issue became part of the public media when Resurrection House and The Salvation Army permitted Sandy Baar to post it inside their private property solely to advance a political and social agenda to help the homeless; and, if so, (3) whether Mr. Tanksley had control over the posting of the flyer. The Bar has cross-petitioned the Referee s recommendation as to punishment, so Mr. Tanksley also answers the Bar s argument regarding punishment. 2. Constitutional Law Issues Except to make two points, Mr. Tanksley will stand by his initial brief regarding the constitutional challenge in this case: First, neither his argument nor the Eleventh Circuit decision he primarily relies on, Mason v. Florida Bar, 208 F.3d 952 (11 th Cir. 2000), involve Equal Protection challenges. They both present 2

9 First Amendment challenges. Thus, the Bar s reiteration that Mr. Tanksley must abide by the rules as other Florida attorneys must do, (AB at 16; id. at 18) is incongruous with the constitutional challenge in this case. Similarly, the Bar s claim that the Mason decision is readily distinguishable because it involved an advertisement disclosure requirement that was placed on an individual attorney as part of an ethics opinion instead of a uniform rule applicable to all Florida lawyers (AB at 16 n.8), is wrong because the Eleventh Circuit was not remotely concerned with Equal Protection. Second, the Bar now claims that it never really conceded that the flyer, as disseminated, was not untruthful, false, deceptive or misleading, and lacked no information to keep it from being untruthful, false, deceptive or misleading. (AB at 12 n.6. But see Bar Interrogatory Answers numbers 2, 3 and 4 and Bar Admissions numbers 16 and 17). Instead, the Bar claims that it merely maintained in its discovery responses that its Complaint did not allege that the flyer was false, misleading or deceptive. (AB at 12 n.6, emphasis added). The concessions seemed clear, and the Bar never disputed these issues before the Referee. (TT ; see, e.g., TT. 25 (the Bar: But this is not a case about an advertisement that contained false or misleading content. ); see also TT. 142 (Mr. Tanksley: The Bar has conceded that there was no false, deceptive or misleading 3

10 statements in the subject matter as disseminated. ); TT. 38 (same)) The Flyer was Not Published in the Public Media Mr. Tanksley is charged with violating rules that arise under subchapter 4-7, regulating advertising in the public media. So, as a threshold matter, the Bar cannot prevail unless it has proven that the flyer was placed into the public media. In his initial brief, Mr. Tanksley argued that the Bar had failed in its burden to prove by clear and convincing evidence that the flyer was part of the public media. (IB at 20-21). He pointed out that in this case, non-profit corporations were engaged in speech inside of their private property to advance social and political objectives, and then argued that the term public media facially, logically and constitutionally could not include a flyer posted in such a location as part of such speech. (IB at 17, 19, 20-21). In its answer, the Bar brushes aside this threshold component of its case 1 To the extent there is any opacity, the Bar surely enjoys no presumption in favor of its effort to justify restrictions on speech. See, e.g., Bolger v. Young s Drug Prods. Corp., 463 U.S. 60, 71 n. 20 (1983) ( The party seeking to uphold a restriction on commercial speech carries the burden of justifying it. ); see also NAACP v. Button, 371 U.S. 415 (1963) (speech by non-profit organization seeking to help disenfranchised persons enjoys considerable protection under the First Amendment, even where the speech seeks to help those persons locate legal counsel); United Transportation Union v. Michigan Bar, 401 U.S. 576, 585 (1971) ( collective activity undertaken to obtain meaningful access to the courts is a 4

11 stating the fact that [the flyer] was posted inside of non-profit organizations is of no significance. (AB at 23). Instead, the Bar focuses on the undisputed fact that the flyer was a printed message and a medium, and then contends that Mr. Tanksley s legal services were advertised to the public. 2 (Id.). But the Bar rules at issue regulating advertising cover only those communications in the public media. And it is a basic canon of construction that each enacted word must be given effect where possible. P.D. v. Department of Children and Families, 866 So. 2d 100, 102 (Fla. 1 st DCA 2004) ( Under principles of statutory construction, a court may not generally ignore or delete words used by the Legislature in a statutory provision absent a finding that the words at issue are so meaningless or clearly inconsistent with the legislative intent that they should be ignored as mere surplusage. (quoting Greenberg v. Cardiology Surgical Ass'n, 855 So. 2d 234, 237 (Fla. 1st DCA 2003))). Of course, if the rules had gone farther, and regulated speech advancing a social and political agenda within private, non-profit organizations property speech that was not fundamental right within the protection of the First Amendment. ). 2 The Bar also argues that the flyer meets the criteria for lawyers advertising set forth in The Florida Bar v. Doe, 634 So. 2d 160 (Fla. 1994). That could be true if the flyer was part of the public media and Mr. Tanksley had control of its distribution elements that were clearly not disputed in Doe, where the alleged advertisement was (1) in a newspaper; (2) paid for by the lawyer; (3) and discussed a highly competitive field of the law, DUI practice. 5

12 untruthful, false, deceptive or misleading then the rules would violate the First Amendment under the caselaw discussed above and in the initial brief. 4. Facts Regarding the Control Issue The Bar claims that Mr. Tanksley had control over the flyer and its distribution. (AB at 21). In his initial brief, Mr. Tanksley argues that he had no such control. (IB at 21-22). The majority of the Bar s brief seems devoted to proving otherwise. Many of the facts are taken out of context, however, so Mr. Tanksley provides the following short summary of the relevant facts pertaining to control, presented in the light most favorable to The Florida Bar: Statewide homeless advocate Gregg Mellowe had grown frustrated because labor pools were exploiting homeless workers in violation of the Florida Labor Pool Act and despite years of effort he had been unable to locate lawyers willing to represent those workers under the Act. (TT. 83, 86, , , ). When Mr. Tanksley said he would be willing to handle such cases, Mr. Mellowe began preparing a flyer to alert workers, and ed a draft to homeless advocate Sandy Baar, Legal Aid attorney April Charney, and Mr. Tanksley. (TT , , , ; 86; Exhibits C, L). Mr. Tanksley hoped to be paid for successfully representing the workers. (AB at 2). Given his prior outreach experience with the homeless, Mr. Mellowe felt it 6

13 was indispensable that the flyer include Mr. Tanksley s name and number. (T. 105). Mr. Tanksley thus filled in blanks for his contact information as part of his proposed revisions to the flyer. (TT. 68) Mr. Mellowe did not further revise the flyer after getting Mr. Tanksley s suggested changes and did not believe he needed approval from Mr. Tanksley to distribute the flyer. (T. 90). He simply sought Mr. Tanksley s input because he held the hope that Mr. Tanksley was comfortable with the language that we were going to circulate. (T. 92). Mr. Tanksley also served as a conduit for the proposed flyer between Mr. Mellowe and two homeless advocates that Mr. Mellowe wanted the flyer to reach Sandy Baar and Robert Kyllonen. Although the Bar suggests otherwise (AB at 4), Mr. Tanksley contacted both Ms. Baar and Mr. Kyllonen about the flyer because Mr. Mellowe had given him their names specifically as good contacts. 3 (TT. 104). Ms. Baar had, of course, been in the loop with Mr. Mellowe regarding the flyer and the Labor Pool Act violations because she had been receiving on that topic from Mr. Mellowe before she ever met with Mr. Tanksley. (TT. 86, ; Exhibit C). After meeting with Mr. Tanksley and receiving copies of the flyer from him, 3 The Bar seizes on Mr. Mellowe s earlier testimony in the proceeding, where he said that he had not asked Mr. Tanksley to distribute the flyers or deliver copies. (AB at 4, citing TT ). 7

14 Ms. Baar was able to advance her personal social and political goals and the goals of The Salvation Army by posting the flyer there. (TT , 116, ). There is absolutely no evidence that she posted the flyer, or that The Salvation Army permitted the posting of the flyer, to serve Mr. Tanksley s interests. Indeed, Ms. Baar testified that if Mr. Mellowe had altered the flyer without any approval from Mr. Tanksley, she still would have posted it at Mr. Mellowe s request. 4 Mr. Kyllonen testified that Mr. Tanksley had handed him a copy of the flyer and talked to him about posting it, but had not asked him to post it or do anything with it. (TT ). Most importantly, Mr. Kyllonen testified that he did not post or permit the posting of the flyer due to his conversation with Mr. Tanksley. (TT. 129). Later, however, Ms. Baar changed Mr. Kyllonen s mind, and he had her post the flyer inside of the Resurrection House. (TT ). Mr. Tanksley had no control over Mr. Kyllonen or Ms. Baar, and there is absolutely no evidence that Ms. Baar posted the flyers, or that Resurrection House permitted the posting of the flyers, to serve Mr. Tanksley s interests. 4 (TT ). In its brief, the Bar relies on Ms. Baar s immediately preceding testimony to state that she would not have changed the flyer without Respondent s permission. (AB at 5, citing TT. 125). 8

15 5. Permitting a Communication About a Lawyer or a Lawyer s Services is Not a Bar Violation Unless the Communication is False, Misleading, Deceptive, or Unfair. The Bar argues: Respondent cannot be allowed to circumvent the advertising rules of the Bar simply because he did not personally deliver the flyer to the prospective clients. (AB at 22) While Rule 4-8.4(a) generally prohibits a lawyer from indirectly doing what he cannot do directly, 5 the Bar has a specifically tailored rule for lawyers who permit communications regarding their legal services: A lawyer shall not make or permit to be made a false, misleading, deceptive, or unfair communication about the lawyer or the lawyer s services. R. Regulating Fla. Bar (b)(1). Neither Rule 4-7.2(b) nor Rule 4-8.4(a) are, however, properly before the Court because the Bar has not charged a violation of either rule. And even if either rule had been charged, there would be no violation. Since Rule 4-7.2(b) specifically addresses permitting communication by third persons, that rule would control in lieu of general Rule 4-8.4(a), which does not specifically address communications. See Maggio v. Florida Dept. of Labor and Employment Security, 30 Fla. L. Weekly S174 (March 24, 2005), 2005 WL , *4 (Fla. 2005) ( [A] 5 I.e., A lawyer shall not: violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. R. Regulating Fla. Bar 4-8.4(a). 9

16 specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.... Although the two statutory notice requirements do not expressly conflict, we conclude that the existence of the detailed notice requirements in the Act, which apply to a specific cause of action, should control over the general notice provisions.... (emphasis added; citations and quotations omitted)). And Rule 4-7.2(b) does not prohibit a lawyer from permitting a communication unless that communication is false, misleading, deceptive or unfair which the Bar does not allege. See Maggio, 2005 WL , *5 ( [U]nder the principle of expressio unius est exclusio alterius, the mention of one thing in a statute implies the exclusion of another... [W]hen a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded. (Citations and quotations omitted)). Even if a violation of Rule 4-8.4(a) had been charged and Rule 4-7.2(b) did not control, Mr. Tanksley still would not be guilty of violating Rule 4-8.4(a). The rule requires that the accused lawyer knowingly assist another in a violation of the Rules of Professional Conduct. R. Regulating Fla. Bar 4-8.4(a). There is neither evidence nor a finding that Mr. Tanksley believed the flyer or its 10

17 distribution violated the Rules of Professional Conduct. ANSWER ARGUMENT ON CROSS-PETITION The Referee s Recommended Punishment Is Appropriate for the Rules Violations Charged. While the Standards For Imposing Lawyer Sanctions in Advertising and Solicitation Rule Violations shall be consulted in each applicable case, and should be applied consistently, the[] standards should not be viewed as a type of sentencing guideline from which no departure is authorized. Std. 13, Standards for Imposing Lawyers Sanctions. The Standards thus urge referees to consider both aggravating and mitigating circumstances to arrive at a punishment that is just. Id. The referee in this case made factual findings regarding the nature of Mr. Tanksley s alleged violations: he had no prior violations (Report of Referee at p. 3); he had been willing to represent people who no other lawyers wanted to represent (id.); and he had acted prudently when the Bar had questioned the flyers, by asking the organizations to remove the flyers (8/2/04 TT ). She also commented that this was obviously... not your typical advertising case. (Id. at ) She thus recommended that Mr. Tanksley be referred to a practice and professionalism enhancement program, with the probationary conditions that he 11

18 attend the Bar s advertising workshop and pre-file all advertisements with the Standing Committee on Advertising for one year. (Id.; Report of Referee at p. 3). She also stated during the penalty phase hearing that she was ordering diversion as the appropriate sanction instead of an admonishment. 6 (8/2/04 TT. 32) [A] referee's recommendation [as to discipline] is presumed correct and will be followed if reasonably supported by existing case law and not 'clearly off the mark.' The Florida Bar v. Williams, 753 So. 2d 1258, 1262 (Fla. 2000). In its cross-petition, the Bar does not challenge the referee s factual basis for her recommendation, but does seek to increase Mr. Tanksley s punishment by adding an admonishment to that recommendation. An admonishment for an ethics violation is a very serious matter. As the Court acknowledged over 40 years ago: To cite a lawyer to be reprimanded for violating the Canons of Ethics creates a stain on his escutcheon that, like the emblem of ownership impressed on a range cow with a branding iron, never wears away. True, there are extreme cases that merit it, but it should not be imposed except in those cases where showing of violation of the canon is deliberate and conclusive. State ex rel The Florida Bar v. Nichols, 151 So. 2d 257, 261 (Fla. 1963). In Mr. 6 To the extent the Bar relies on any discrepancy between the referee s oral pronouncement and the subpart of the diversion rule cited in the written order, the oral pronouncement should control. See generally Ulano v. Anderson, 626 So. 12

19 Tanksley s case it is clear that he did not willfully violate the Bar rules. 7 Indeed, it is clear that he still believes in his legal position, or else he would not pursue this review proceeding over relatively minor punishment and would have taken the Bar s offer (filed in this Court on October 20, 2004) to drop any cross petition regarding punishment if he abandoned his petition. Within the context of her findings, the referee s recommendation is reasonable and not clearly off the mark. Williams, 753 So. 2d at This Court should certainly not increase it. 2d 1112 (Fla. 3d DCA 1993) (citing numerous cases on issue). 7 Again, the Bar relies on Doe but Doe is inapposite for the reasons discussed above in footnote 2. With respect to punishment, Doe is additionally inapposite because (1) Doe involved a communication that the referee found was potentially misleading, 634 So. 2d at 162, while this case does not; and (2) in this case the referee found in mitigation that the lawyer was willing to take on clients that no other lawyers were representing because of the difficulties those clients presented and because of the uncertainty of success on the merits. (Report at 3; 8/2/04 TT ). 13

20 CONCLUSION The Court should reject the Referee s finding that the Mr. Tanksley is guilty of violating rules 4-7.2(c)(4), 4-7.3(b), and 4-7.7(a) of the Rules Regulating The Florida Bar. Alternatively, the Court should reject the Referee s recommendation of punishment to the extent it requires Mr. Tanksley to file exempt advertisements for one year. Under no circumstances should the Court increase Mr. Tanksley s punishment. Respectfully submitted, John G. Crabtree Florida Bar No John G. Crabtree, P.A. 328 Crandon Boulevard, Suite 225 Key Biscayne, Florida Telephone: (305) Facsimile: (305) Counsel for Oliver Perry Tanksley III 14

21 CERTIFICATE OF SERVICE On May 24, 2005, I mailed a copy of this brief to Debra Joyce Davis, Esq., The Florida Bar, 5521 West Spruce Street, Suite C49, Tampa, Florida , and Barry Richard, Esq. and M. Hope Keating, Esq., Greenberg Traurig, P.A., 101 East College Avenue, Post Office Drawer 1838, Tallahassee, Florida CERTIFICATE OF COMPLIANCE I prepared this brief in Times New Roman 14-point font. 15