ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: KEARNEY SONIAT DUFOSSAT LOUGHLIN NUMBER: 12-DB-008

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1 ORIGINAL Louisiana Attornc~ Disci Jlinar~ Board FILEDby: ~~ Docket# Filed-On 12-DB-008 4/23/2014 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: KEARNEY SONIAT DUFOSSAT LOUGHLIN NUMBER: 12-DB-008 RULING OF THE LOUISIANA ATTORNEY DISCIPLINARY BOARD... This attorney discipline matter arises out of formal charges filed by the Office of Disciplinary Counsel ("ODC") against Kearney Soniat Dufossat Loughlin ("Respondent"), Bar Roll Number 2639 I. The formal charges, which contain two counts, allege a violation of Rule 7.2(c)(l)(B), effective October I, 2009 (a lawyer shall not make a false, misleading or deceptive communication about the lawyer's services), Rule 7.2 ( c )(5), effective October 1, 2009 (a lawyer shall not state or imply that the lawyer is certified, an expert or a specialist unless he has been recognized or approved as one by the Louisiana Board of Legal Specialization) as well as a violation of Rule 7.4, in effect from March I, 2004 to October I, 2009 (a lawyer shall not state or imply that the lawyer is ce1tified, an expert or a specialist unless he has been recognized or approved as one by the Louisiana Board of Legal Specialization) of the Rules of Professional Conduct.' The Hearing Committee 2 (the "Committee") assigned to this matter concluded that Respondent engaged in the alleged misconduct under former Rule 7.4, but did not find that ODC met its burden of proof of clear and convincing evidence for violations of Rule 7.2(c)(l)(B) nor for Rule 7.2(c)(5). As a sanction, the Committee recommended that Respondent be reprimanded, and that he be required to attend a continuing legal education program on lawyer adve1tising. 1 See the attached Appendix for the text of the Rules. 2 Committee No. IO was composed of Frank H. Walk Jr. (Chairman), Keith Pyburn (Lawyer member) and Guy P. Johnson (Public member).

2 For the reasons set forth below, the Board adopts the Committee's factual findings as they pertain to the allegations. Additionally, the Board adopts the Committee's legal conclusions, with one exception. Although the Board declines, as the Committee did, to find a violation of Rule 7.2, the Board does not adopt the Committee's reasoning in support thereof. The Board adopts the Committee's conclusion that Respondent's website, as it existed fi om 2007 to 2009, violated former Rule 7.4. As to the appropriate sanction, the Board adopts the Committee's recommendation of a public reprimand and requirement that he attend a continuing legal education program on lawyer advertising. Finally, the Board recommends that Respondent be assessed with all costs and expenses ofthese proceedings. PROCEDURAL HISTORY On June 23, 2011, formal charges were filed in Docket No. 11-DB-067. Respondent filed an answer on August 5, Formal charges in a second matter, Docket No. 12-DB-008, were filed on February 2, 2012 and were served on Respondent on or about February 8, 2012, via certified mail. On February 28, 2012, Respondent filed an answer to the formal charges in which he denied violating the Rules as charged, and requested a partial dismissal of the formal charges. On March 9, 2012 ODC moved to consolidate matter number 12-DB-008 with 11-DB-067. The motion was granted on March 12, On March 30, 2012 ODC filed an opposition to Respondent's request for a partial dismissal ofthe combined formal charges. On April 4, 2012 the hearing committee chairman issued an order denying Respondent's request for a partial dismissal of the formal charges. On July 10, 2012, Respondent filed a motion to exclude evidence of a prior admonition and to set aside the prior admonition. Both parties filed prehearing memoranda on July 17, On July 26, 2012, ODC moved to dismiss the formal 2

3 charges in matter No. 11-DB-067. The Board dismissed the 11-DB-067 charges on the same day. On August I, 2012 Respondent filed a supplemental pre-hearing memorandum. In response to the constitutional challenges briefed by Respondent in his memo, the hearing committee chairman issued an Order on August 2, 2012 granting him leave to file an amended answer raising the constitutional issues and in addition, ordering Respondent to notify the Louisiana Attorney General of his constitutional challenge to the Rules. On August 15, 2012 Respondent forwarded the 12-DB-008 Formal Charges and his Answer to the Formal Charges to the Office of the Attorney General, advising them that he was challenging the constitutionality of Rules 7.1, et seq. The Office of the Attorney General declined the opportunity to defend the constitutional challenge raised by Respondent. On October 4, 2012, Respondent declined to consent to an offer of admonition made by ODC on September 20, On October 5, 2012, ODC filed Supplemental Charges and an Amendment to the Formal Charges, which were delivered to Respondent by hand on November 29, On November 16, 2012, Respondent's July 10, 2012 motion to exclude evidence was denied, and a hearing date was set for February 5, On December 27, 2012, Respondent filed an answer to the Supplemental and Amended Charges. A formal hearing was held before Hearing Committee No. 10 on February 5, At the hearing, ODC was represented by Deputy Disciplinary Counsel Gregory L. Tweed, and Respondent appeared on his own behalf. The hearing committee found that the ODC did not meet the required burden of proof with regard to the alleged violations of Rule 7.2(c)(l)(B) and Rule 7.2(c)(5). However, the hearing committee concluded that Respondent violated former Rule 7.4. ODC filed a post hearing memorandum on March 19, Respondent filed his 3

4 post-hearing memorandum on April 19, The Hearing Committee issued its report on May 21, ODC filed an objection to the report on May 23, On June 7, 2013 a minute entry was entered into the record to dissolve the consolidation ofthe two cases. ODC filed a pre-argument brief on June 18,2013. Respondent filed a brief on the same day objecting to the hearing committee's report and recommendation. Respondent subsequently filed a brief in response to ODC's pre-argument brief on July 3, Oral argument was held before Panel "B" of the Disciplinary Board 3 on July 18, Mr. Tweed appeared on behalfofodc, and Respondent appeared on his own behalf. Respondent filed a motion for leave to file a supplemental memorandum on July 22, ODC objected to Respondent's motion on the same day. Respondent filed a reply memorandum in support of his motion for leave on July 31, The parties and Panel "B" chairman discussed Respondent's motion in a telephone conference on August 15, Panel "B" denied Respondent's request for leave to file his supplemental memorandum on August 19, THE FORMAL CHARGES The formal charges provide in pertinent part: COUNT I On December 21, 2011, at the conclusion of ODC's investigation into the matter bearing ODC investigative file number , you received an offer to resolve the referenced disciplinary matter through an admonition (private discipline). On January 4, 2012, you declined ODC's offer of admonition. Pursuant to the terms of Rule XIX, Section 11 (D), by rejecting the admonition offer, you have, in effect, demanded that this matter be disposed of by way of a formal proceeding. Pursuant to ODC's investigation into investigative file number , it is noted that on or about October 13, 2011, the undersigned Deputy Disciplinary Counsel personally observed a website advertising your legal services. On the home page for the website in question, it states that you "specialize" in "maritime 3 Board Panel "B" was composed of Stephen F. Chiccarelli (Chairman), Jamie E. Fontenot (Lawyer Member) and Linda P. Spain (Public Member). 4

5 personal injury and death cases." However, no such specialty is recognized by the Louisiana Buan.l of Legal Spet:ializaliun. Furlher, Lhe ad Jues nul wnlain Lhe full name of any other organization granting such certification. A copy of the advertisement in question is attached hereto and made a part hereof. It is alleged that your web based advertising violates Rule 7.2(c)(l)(B) and Rule 7.2(c) (5) of the Rules ofprofessional Conduct. [First Supplemental and Amended Formal Charges] The Respondent in these proceedings is Kearney Soniat du Fossat Loughlin, a Louisiana licensed attorney who was born January 27, 1968 and admitted to the practice of law in the State of Louisiana on October 15, 1999 after graduating from Tulane Law School. The Respondent is currently eligible to practice law in the State of Louisiana. I. The Office of Disciplinary Counsel reiterates all of the allegations of fact, and allegations of rule violations as contained in the original set of Formal Charges as though copied inextensio herein. II. The Office of Disciplinary Counsel wishes to add Count II of the Formal Charges to read as follows: COUNT II In October of 2011, ODC received information indicating that the Respondent and his firm maintained a website that contained representations that did not comply with the requirements of Rule 7.1, et seq., of the Rules of Professional Conduct. A review ofthe web page in question on October 13, 2011, indicated that the Respondent claimed that he "specializes in maritime personal injury and death cases." However, no such specialty is recognized in this State. After being placed on notice ofthis issue, the Respondent admitted that he started the website in 2007 and requested that it be taken down in 2009 after his wife started with the US 5th Circuit. The Respondent claimed that until he received ODC's letter, he had no idea the site was available to the general public. According to the Respondent, he contacted the webhost after receiving notice of the complaint and they confirmed that the site had been removed from their server; although, part of the site was still available through Google. The Respondent claimed the website has not been complete[ly] disabled from public access. The Respondent admitted that he provided the bulk of the content on the website and went on to suggest that he has a certificate of specialization in maritime law, issued by Tulane Law School. The Respondent claims that since Tulane is accredited by the ABA, the claims on his website were not a violation of Rule 7.2(c)(5). In its pre-hearing memo, ODC pointed out that the Rule violation charged by ODC (7.2(c)(5)), was amended in 2009, but is substantially the same as Rule 7.4 of the pre-revision Rules. While this was argued as an alternative theory, once 5

6 the Respondent suggested that he was going to raise a Constitutional challenge to Rule 7.2(c)(5), ODC look lhe opporlunily lo formally place lhe Respondenl on notice that, by his own admission, his website was maintained in in a form that was in violation of the then existing Rules of Professional Conduct; specifically Rule 7.4. This matter was assigned ODC Investigative File Number In his response to this new complaint, the Respondent stated that former Rule 7.4 was broader, vaguer and more restrictive of speech than the current rules and is thus subject to the same constitutional objections. The Respondent went on to suggest that Rules 8.1(b) and (c) may therefore be unconstitutional, as well as certain provisions of Rule XIX. In response to Count I of the pending formal charges, the Respondent has alleged that by virtue of his Certificate of Specialization in Admiralty, he is able to claim that he specialized in maritime personal injury and death cases. In the event that the Committee is persuaded by this argument, ODC specifically alleges the alternative argument that under the version of Rule 7.4 that was applicable in 2007 through September 30, 2009, the Rules did not provide for any exceptions; the only way that one could ethically claim to specialize in a particular area of law was if that area of law was specifically approved by the Louisiana Board of Legal Specialization. Since neither "Admiralty" nor "maritime personal injury or death cases" were recognized by the Louisiana Board of Legal Specialization at that time, the Respondent's claims on his website were in violation of Rule 7.4. On September 20, 2012, at the conclusion of ODC's investigation into the matter bearing ODC investigative file number , the Respondent was hand-delivered an offer to resolve the referenced disciplinary matter through an admonition (private discipline). On October 4, 2012, the Respondent declined ODC's offer of admonition, a copy of which is attached hereto and made a part hereof as ODC Exhibit 1. Pursuant to the terms of Rule XIX, Section 11 (D), by rejecting the admonition this matter now must be addressed by way of a formal public proceeding. THE HEARING COMMITTEE REPORT As noted above, the hearing ofthis matter was held on February 5, The committee heard testimony from Ms. Barbara Shafranski (Louisiana Board of Specialization), Mr. Richard Lemmler (Ethics Counsel), Mr. Richard Stanley (Chairman of the Rules Committee) and the Respondent. The Committee admitted into evidence ODC's exhibits [ODC 1-17] as well as Respondent's exhibits [R 50-53] and proffered exhibits R The Committee provided the following findings, analysis and conclusions: 6

7 FINDINGS OF FACT AND RULES VIOLATED I. Allegation of Violation of Rule 7.2 On December 1, 2008, Rule 7.6, Computer Accessed Communications, was made effective. The definition of such communications, at 7.6(a), includes home pages or World Wide Web (WWW) sites. Section 7.6(b ), Internet Presence, states such WWW sites and home pages: 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: (3) are considered to be information provided upon request and, therefore, are otherwise governed by the requirements of Rule 7.9. Respondent's WWW site, subject of the complaint herein, are hereby found to be within said Section 7.6(b) category. Section 7.6( d) Advertisements, states: "all computer-accessed communications concerning a lawyer's or law firm's services, other than those subject to subdivisions (b) and (c), are subject to the requirements of Rule 7.2. [FN 2] In other words, advertising communications other than Section 7.6(b) advertisement communications, are subject to Rule 7.2. FN2 Emphasis added. Section 7.6(d) continues "when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain." A significant motive of Respondent's WWW site (Exhibits ODC- I and ODC- 2) is hereby found to be such. So it is hereby found that Respondent's WWW site is not subject to Rule 7.2. Part of the complaint herein is based on Section 7.2(c), which became effective on October 1, That pmi of the complaint alleges violations of Section 7.2(c)(l)(B) (prohibition against false, misleading, or deceptive statements), and Section 7.2(c)(5) (prohibition against stating or implying a lawyer is a specialist). Since Respondent's WWW site was not subject to Rule 7.2, it is hereby found that the parts of the complaint which concern Sections 7.2(c)(l)(B) and Section 7.2(c)(5) fail to state a violation ofthe Rules of Professional Conduct. II. Allegation of Violation of Rule 7.4. Rule 7.4, Communication of Fields of Practice, was effective from March 1, 2004 until October 1, It read: A lawyer shall not state or imply that the lawyer is certified, or is a specialist or an expert, in a particular area of law, unless such certification, specialization or expertise has been recognized or 7

8 approved in accordance with the rules and procedures established by Lhe Louisiana Board of Legal Spec..:ializallon. In a brief, Respondent admitted he authorized and maintained, between 2007 and 2009, a law firm World Wide Web (WWW) site, including a home page. (Respondent's Pre-hearing Brief, I. Background, A. Case Summary, page 14, Paragraph 36.; also see Transcript, page T.33, line 24 to page T.34, line 2, and continuing through page T.36). Two of Respondent's WWW site pages are shown as Exhibits ODC 1, ODC 2, ODC 14 and ODC 15. These are the pages that existed on the WWW from some time in 2007 to at least some time in He did not state on what date in 2009 he requested that the site be removed from the WWW. (See Transcript pages T.33, lines 13-18, T.34, lines 10-21, and continuing through T.39.). Exhibit R36 includes the November 2, from Respondent to his WWW site contractor, and the November 3, response, stating "All pages have been removed from our server". However, these s do not address when Respondent requested his WWW site be removed from the WWW, and when it was so removed. Only Respondent's testimony, referenced above, addresses these points. Although Respondent's testimony on these points seemed credible, his failure to adduce additional evidence thereon is noteworthy. We find Respondent in authorizing the WWW site at issue, which contained the statement that his firm was one "specializing in maritime personal injury and death cases" was stating or implying that his firm was a "specialist" in maritime personal injury and death cases, in violation of Rule 7.4. This is a violation because such a specialization had not been recognized or approved in accordance with the rules and procedures established by the Louisiana Board of Legal Specialization. It is hereby found there is clear and convincing evidence that Respondent violated said Rule 7.4 during the 2007, 2008 and 2009 time period described above. Constitutional Challenge The Respondent has raised a constitutional challenge. It is hereby found that Rule 7.4 is constitutional. State v. Granger, 982 So.2d 779 (La. 2008). The Committee found that the Respondent acted negligently in authorizing the contents of his website as it existed from 2007 to 2009, since he failed to make himself aware of and comply with Rule 7.4. The Committee found that Respondent violated a duty owed to the legal profession, but that his misconduct did not cause any actual injury and there was little potential injury. The Committee found no mitigating factors. In aggravation, the Committee found that 8

9 Respondent has substantial experience in the practice law. 4 After noting that an admonishment was not a possible sanction at this point in the disciplinary proceedings, the Committee determined that a public reprimand was the appropriate sanction. The Committee also recommended that he attend a CLE for lawyer advertising, and pay all costs associated with the proceedings. ANALYSIS OF THE RECORD BEFORE THE BOARD I. The Standard of Review A. Manifest Error The powers and duties of the Disciplinary Board are defined in 2 of the Louisiana Supreme Cowi Rule XIX, Rules for Lawyer Disciplinary Enforcement. Rule XIX, (G)(2)(a) states that the Board is "to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges... and prepare and forward to the court its own findings, if any, and recommendations." Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of "manifest error." Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts a de novo review ofthe hearing committee's application ofthe Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/1992). Here, the Committee's findings of fact are supported by the record and do not appear to be manifestly erroneous. De novo review of the record indicates that the Committee 4 Additionally the Committee noted that Respondent had a prior admonition, but not for similar misconduct and therefore was not a significant factor which would impact the sanction determination. In addition, they noted "a possible aggravating factor" of submission of false statements, false evidence or deceptive practices during the disciplinary process, but noted that "the evidence of the existence of this aggravating factor is not clear and convincing." H.C. Report, pp

10 appropriately applied the Rules of Professional Conduct, with one exception. The Board agrees with the Committee that ODC proved by clear and convincing evidence that Respondent violated Rule 7.4, as that Rule was in effect during the time period that Respondent has admitted his website was in operation. The Board also agrees with the Committee that ODC failed to prove violations of Rule 7.2(c)(l)(B) and 7.2(c)(5), but not for the reasons cited by the Committee. Each alleged Rule violation is addressed below. Rule 7.2(c)(5) and Rule 7.2(c)(l)(B): The Committee declined to find a violation of either subsection of Rule 7.2 on the basis that the Respondent's website is not actually subject to Rule 7.2. The Committee stated that Respondent's website was governed by Rule 7.6(b)(3), which suggests that websites are to be treated as "information provided upon request," which are thereby governed by Rule 7.9. The Committee then interpreted the language contained in the Rule to mean that "advertising communications other than section 7.6(b) advertisement communications" are subject to Rule 7.2, and concluded that therefore, Respondent's website is not subject to Rule 7.2. As ODC outlined in its brief filed June 18, 2013, this is a misinterpretation of the Rule 7 series. As ODC points out, "under the Committee's reasoning, an attorney is free to post intentionally false, misleading or deceptive claims on his website, without any recourse. Clearly, the Louisiana Supreme Court did not intend for such a situation when adopting the new advertising rules." The Committee is correct in that Respondent's former website (as it existed from ) was subject to Rule 7.6(b)(3). It was a website accessed via the internet, which was authorized by Respondent and contained information about Respondent's legal services. As per Rule 7.6(b)(3), it was therefore considered to be "information provided upon request" and would be governed by the requirements of Rule 7.9. Rule 7.9(a) specifically states that, unless 10

11 otherwise provided in Rule 7.9 5, information provided about a lawyer's services upon request shall comply with the requirements of Rule 7.2. As a consequence, all law firm websites, unless otherwise provided within Rule 7.9 (b) and (c), must comply with the requirements of Rule 7.2, including all of its subparts. 6 The testimony of experts Richard Stanley and Richard Lemmler supports the conclusion that law firm websites are subject to Rule 7.2. See Hearing Transcript, pp. 77, 87, 92, Although Respondent's website was an 'internet presence' which would be subject Rule 7.2 if it was live, the Board declines to find violations of Rule 7.2(c)(5) and Rule 7.2(c)(l)(B) because ODC did not present clear and convincing evidence that the website in question was a live website at any point after the enactment of Rule 7.2 (effective October 1, 2009). On October 13, 2011, Deputy Disciplinary Counsel Greg Tweed accessed the internet via the search engine Google. Hearing Transcript, p. 13. He typed "Kearney Loughlin, Attorney, New Orleans" into Google's search bar.!d. The first link in the Google search results was a link The balance of Rule 7.9 [sections (b) and (c)] offers some small, specific additional "latitude" to the lawyer or law firm providing information about the lawyer's or law firm's services to potential clients who have requested such information fi om the lawyer or law firm that would not otherwise be available to the lawyer or law firm when generally advertising (i.e., when not providing information upon request ti om a potential client). But that specific additional 'latitude" is strictly as enumerated within Rule 7.9(b) and Rule 7.9(c). Rule 7.9(b)(I) permits the lawyer or law firm, upon a request fi om a potential client, to furnish such factual information regarding the lawyer or law firm deemed valuable to assist the client. Rule 7.9(b)(2) also permits the lav.ryer or law firm, upon request for information fi om a potential client, to furnish an engagement letter to the potential client, but ifthat information includes a contingency fee contract, the top of each page of the contract must be marked "SAMPLE" in a print size at least as large as the largest print used in the contract and the client signature line must be marked ''DO NOT SIGN". However, Rule 7.9(c) requires that a lav.ryer or law firm, when furnishing information and/or a statement regarding representation in a particular type of matter to a prospective client as authorized by Rule 7.9(b), to include appropriate qualifying information if the lawyer or law firm reasonably believes that another lawyer or law firm not associated with that first lawyer or law firm will be associated or act as primary counsel in representing the client to whom the information is being furnished. Rule 7.9(c) indicates that furnishing such information without appropriate qualification will be presumed to be misleading and that the history of prior conduct by the lawyer in similar matters may be considered in determining whether the statement is misleading. 6 It should be noted that prior to the October I, 2009 effective date of the reenacted Rules regarding lawyer advertising and solicitation, Rule 7.6(d) was first amended, by Order of the Court signed June 4, 2009, and then its enforcement was fully suspended by Order of the Court signed September 22, 2009, ultimately providing that it was not and to date has never been, enforced. So, for all intents and purposes, Rule 7.6(d) has effectively never been applied or enforced as part of the current Rules. 11

12 to "Loughlin & Loughlin". Mr. Tweed clicked on the link and printed Exhibit 1, which is a copy of a screen shot from the "Firm Profile" section of the website. He also printed a copy of the screen shot of the "Home Page" of the website. ODC Exh. 2. Respondent testified under oath that he directed his web designer to remove his website from the internet during the summer of The Committee found his testimony on this issue to be credible, but did note Respondent's failure to produce additional evidence of the exact moment that he requested the website to be removed from the internet. Respondent submitted an dated November 3, 2011 from his website contractor, in which the website contractor stated that "All pages have been 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 by passing the redirect to the holding page we created." ODC-3. The Board likewise finds the Respondent's testimony credible as to his belief that his website was taken offline in 2009, and that he did not know that a portion of the site was still accessible through Google's archived documents. The question presented to the Board is whether or not an attorney should be held in violation of the Series 7 Rules based on a website that is not actually live, but is only incidentally accessed via the archived documents of an internet search engine. Such a finding would have far reaching effects. It would require attorneys to be responsible for any and all defunct website pages which happen to be archived in any number of internet search engines. Therefore, the Board declines to hold Respondent liable for violating Rule 7.2 due to the fact that two pages of his defunct website were discovered by ODC on October 13, 20 II via a Google search, two years after he requested, and believed, that his site was removed from the host server. 12

13 Rule 7.4: Rule 7.4, was in effecl from March 1, 2004 to October I, Rule 7.4 slated: A lawyer shall not state or imply that the lawyer is certified, or is a specialist or an 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. The Committee found that Respondent's website, as it existed from , was in violation of Rule 7.4 of the then applicable Rules. The Committee determined that the statement on his website stated or implied that his firm was a "specialist" in maritime personal injury and death cases, in violation of Rule 7.4. As there is no such specialty recognized or approved by the Louisiana Board of Legal Specialization, the Committee determined that the website was in violation of Rule 7.4. The Committee also determined that Rule 7.4 was constitutional, citing State v. Granger, 982 So.2d 779 (La. 2008). Respondent testified that the website in question was created in 2007, and maintains that it was taken offline during the summer of2009. The Board agrees with the Committee that Respondent's website, as it existed from appears to have violated former Rule 7.4. The statement on his website, "Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases" appears to imply that he is a specialist in an area of law that is not recognized by the Louisiana Board oflegal Specialization, in violation of the Rules ofprofessional Conduct. The major difference between former Rule 7.4 and current Rule 7.2(c)(5) is that the current version of the Rule provides an exception for specialization programs that have been accredited by another organization, such as the ABA. Respondent has suggested that he is permitted to claim he is a specialist in maritime personal injury and death cases by virtue of the fact that he received a certificate of specialization in maritime law from Tulane Law School. 13

14 The Board finds that the evidence establishes that Rule 7.2(c)(5) did not contemplate that lawyers could claim to be specialists in an area of law simply by virtue of attending an ABA accredited law school. As pointed out by ODC's expert witness Richard Stanley, this interpretation of the Rule would allow any recent law school graduate without any practical experience in any specific areas of law, the ability to claim to be a specialist upon receipt of a certificate of specialization. Hearing Transcript, pp This would undermine the purpose of the Louisiana Board of Legal Specialization. 7 Therefore, the Board agrees with the Committee that ODC proved by clear and convincing evidence that Respondent violated Rule 7.4, as that Rule was in effect during the time period that Respondent has admitted his website was in operation. For the reasons cited above, the Board also agrees with the Committee that ODC failed to prove violations of Rule 7.2(c)(l)(B) and 7.2 (c)(5). CONSTITUTIONAL CHALLENGE RAISED BY PLAINTIFF Respondent claims that former Rule 7.4 (in effect from March I, 2004 to October I, 2009) and Rule 7.2(c)(5) (effictive October I, 2009) ("Communication of Fields of Practice Rules"), in addition to being overly broad and vague, are content-based restrictions on free speech in violation of the First Amendment of the United States Constitution and Article I, Sections 7 ofthe Louisiana Constitution. 8 7 The Louisiana Board of Legal Specialization was established in I 993 by the Louisiana Supreme Court to assist consumers in finding a lawyer who has demonstrated ability and experience in specialized fields oflaw, and since that time has approved board certification of some members of the Louisiana State Bar Association who practice in the following areas: Business and/or Consumer Bankruptcy, Estate Planning and Administration, Family Law, and Tax Law. See 8 See Respondent's Answer to First Supplemental and Amending Formal Charges (filed December 27, 20 12); and Respondent's Supplemental Pre-Hearing Memorandum (filed August I, 20 I 2). 14

15 The Committee concluded that Rule 7.4 is constitutional without supplying written reasons, but cited State v. Granger, 982 So.2d 779 (La. 2008). In the case of State v. Granger the Louisiana Supreme Court held that: Statutes are presumed to be constitutional and their constitutionality will be preserved "when it is reasonable to do so." State v. Fleury, , p. 5 (La.10116/01), 799 So.2d 468, 472; see also Moore v. Roemer, 567 So.2d 75, 78 (La. 1990); State v. Griffin, 495 So.2d 1306, 1308 (La.1986). Since statutes are presumed to be constitutional, "the party challenging the validity of a statute generally has the burden of proving unconstitutionality." Moore v. RLCC Techs., Inc., , pp. 7-8 (La.2/28/96), 668 So.2d 1135, 1140; see also Roemer, 567 So.2d at 79. To satisfy this burden, the challenging party must cite the specific constitutional provision that prohibits the legislative action. Flewy, , p. 5, 799 So.2d at [982 So.2d 787]. In the matter at hand, both Respondent and ODC claim that the other party has the burden of proving the constitutionality of the Rules at issue, and each claim that the other party failed to carry their burden. Respondent argued that ODC had the burden of proving that the restrictions on the speech at issue did not violate the First Amendment. 9 ODC submitted that Respondent did not offer any evidence to overcome the presumption of constitutionality outlined in the Granger case. See Disciplinary Counsel's March 19, 2013 Post-Hearing Memorandum, p. 4. In rebuttal, Respondent noted in his brief that "the party seeking to uphold a restriction on commercial speech[,] carries the burden of justifying it." Public Citizen v. Louisiana Attorney Disciplinary Board, 632 F.3d 212, 218 (5 1 h Cir. 2011), quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n. 20, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983). "Its burden is a 'heavy' one, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516, 116 S. Ct. 1495, 134 L.Ed.2d As noted above, on August 15, 2012 Respondent forwarded the 12-DB-008 Formal Charges and his Answer to the Formal charges to the Office of the Attorney General, advising them that he was challenging the constitutionality of Rules 7.1, et seq. The Office ofthe Attorney General declined the opportunity to defend the constitutional challenge raised by Respondent. 15

16 (1996), that cannot be satisfied 'by mere speculation or conjecture,' Ederifield v. Fane, 507 U.S. 761, , 113 S. Ct. 1792, 123 L.Ed.2d 543 (1993)."!d. As noted by ODC, the only testimony provided on the constitutional issues raised by Respondent was that of Richard C. Stanley, who provided the constitutional background of the Rules and noted that the Rules were drafted in response to the U.S. Supreme Court's decision in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990). 10 Bates v. State Bar of Arizona and its progeny establish that lawyer advertising rs commercial speech and, as such, is accorded only a limited measure of First Amendment protection. 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810. Advertising that "is inherently likely to deceive or where the record indicates that a particular form or method... of advertising has in fact been deceptive" receives no protection and the State may prohibit it entirely. In re R.M.J., 455 U.S. 191, 202, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). Advertising that is potentially 10 Mr. Stanley was offered by ODC as an expert in the Rules of Professional Responsibility and Constitutional Law. When asked by ODC if he thought the rules at issue were vague, confusing, or a restriction of speech, he responded: "! don't think the rules are vague. I don't think the rules are a restriction of speech, at least, well, they are. but they're not an unconstitutional restriction on speech. I happen to agree with him [Respondent] that it takes a little bit of work to follow through some of the provisions that point to other provisions and go back and understand how they interrelate. But I would expect anybody who got a JD to be able to understand how the rules intersect and look back and forth. That part of it is a challenge." Hearing Transcript, p ODC asked Mr. Stanley what he teaches Tulane law students with regard to using the word 'specialist', or any derivative thereof, as it relates to Rule 7.2(c)(5). Mr. Stanley responded: Simply that this is one of the rules that [is] easier to comply with. That you don't use the word "specialist" or any derivative of it. unless you have certification because it's one of those rules that's easy to violate and easy to follow, especially when you're moving quickly through [the] advertising rules. It's one of the ones that [is] easy to teach them. You just say don't use those words. There's other ways to express it. You can say concentrate your practice. You have experience in various things, examples of what you've done with your career. But trying to summarize it with the word "specialist" or "specialize," it's bound to get the attention of the regulatory boards. Hearing Transcript, pp

17 misleading- because it "may be presented in a way that is not deceptive"- may be regulated if it satisfies one of two standards. See id. at 203, 102 S.Ct. 929; see also Zauderer v. Office of Disciplinmy Counsel ofthe Sup.Ct. of Ohio, 471 U.S. 626, 651, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). The Board questions whether or not the general public would interpret the statement on Respondent's website, "Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases" to mean that Respondent is stating or implying that he is a "specialist" in maritime law. Mr. Stanley was offered and accepted as an expert in the Rules of Professional Responsibility and constitutional law and testified that the term "special" is not misleading on its face. Hearing Transcript, p Mr. Stanley agreed that whether or not the term "special" violated the Rules of Professional Conduct depended on the context within which the word was used. Id. In this case, the Board finds that Respondent's statement is not self evidently deceptive, but rather, has the potential to mislead. As such, the language used on Respondent's website is commercial speech that is only potentially misleading, therefore implicating the First Amendment. The standard for regulating the content of commercial speech that is potentially misleading was first articulated by the Supreme Court in Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 ( 1980). In Central Hudson, the Court found that the content of potentially misleading commercial speech can be constitutionally regulated only when a substantial government interest is at stake, the regulation directly advances that interest, and the regulation is no more extensive than is necessary to serve that interest. ld. at 566. In Board of Trustees of State University of New Yorkv. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), the Court clarified the 17

18 Central Hudson test for regulating commercial speech by announcing that only a "reasonable fit" must be necessary between the state interest and the regulation. The "fit" need not be perfect, only reasonable.!d. The record, as developed thus far in this matter, does not contain the evidence needed to evaluate whether the Communication of Fields of Practice Rules meet the applicable constitutional standards set forth by Central Hudson. 11 To appropriately conduct the Central Hudson test there must be evidence in the record indicating what the State's substantial interest is in support of the regulation. Although trial testimony is not required, the proponents of a restriction must either advance an interest that is self-evident or put something in the record to make the required demonstration. Hayes v. New York Attorney Grievance Comm. of the Eight Judicial Dist., 672 F.3d 158, (2d Cir. 2012). As m1iculated by Mr. Stanley, the intent behind the Communication of Fields of Practice Rules is to protect the public fi om statements made by lawyers which falsely lead the public to believe that a lawyer is certified or designated as a specialist in a particular area of law when he is not. Hearing Transcript, p The Board agrees that protecting the public from misleading lawyer advertising qualifies as a substantial governmental interest. As is often recited in disciplinary case law, the purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct, to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. Louisiana State Bar Ass 'n v. 11 There is an exception to the prevailing Central Hudson rule. In Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, the Supreme Court held that, where a law compels disclosure of "purely factual and uncontroversial information," the law need only be "reasonably related to the [government's] interest in preventing deception of consumers" to pass muster under the First Amendment. 471 U.S. 626, 651 (1985). However, regardless of whether the Central Hudson (intermediate scrutiny) or the Zauderer (reasonableness) standard applies, the record does not contain the evidence needed to evaluate the constitutional challenge under either standard. 18

19 Guidry, 571 So.2d 161 (La. 1990) (emphasis added). Therefore, the Board finds that the ODC has asserted an important substantial government interest: protecting the public from unethical and potentially misleading lawyer advertising. Under Central Hudson's second and third prongs, the State must demonstrate that the challenged rules are narrowly drawn to materially advance the asserted substantial interests. Edenfield, 506 U.S. at 770, 113 S. Ct That burden, the Supreme Court has explained, "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a 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." Edenfield v. Fane, 507 U.S. at 768. Empirical data, studies and anecdotal evidence may be used to demonstrate that the harm targeted by the regulation is real and that its restriction will in fact alleviate them to a material degree. Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995) (a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real). In Florida Bar v. Went For It, Inc., the second Central Hudson prong was addressed when the State submitted a Bar study that contained extensive statistical and anecdotal data in order to demonstrate that the harm targeted by the ban was real.!d. at 618. Without further evidence in the record, such as empirical data, studies and anecdotal evidence, the Board is left to speculate as to whether "the harms it recites are real and that its restriction will in fact alleviate them to a material degree. Edenfield v. Fane, 507 U.S. at 768. Nor is there evidence in the record to satisfy the third prong of Central Hudson: that the prohibitions in the Communication of Fields of Practice Rules are not more extensive than reasonably necessary. Fox, 492 U.S. at 477, 109 S.Ct In the Public Citizens case, the 19

20 Fifth Circuit determined that conclusory and unsupportable assertions were insufficient to satisfy the LADB's burden in defending the constitutionality of Rule 7.2(c)(l)(D). Public Citizens, 632 F. 3d at 223. In the matter at hand, the record is void of evidence which would allow the Board to decide one way or another whether the challenged rules are narrowly drawn to materially advance the asserted substantial interests. Without evidence to analyze whether the second and third Central Hudson prongs have been met or not, the Board declines to reach a conclusion as to the constitutionality of the Communication of Fields of Practice Rules. II. THE APPROPRIATE SANCTION A. Application of Rule XIX, lo(c) Factors Louisiana Supreme Court Rule XIX, 1 O(C) states that in imposing a sanction after a finding of lawyer misconduct, the Court or Board shall consider the following factors: I. whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; 2. whether the lawyer acted intentionally, knowingly, or negligently; 3. the amount of actual or potential injury caused by the lawyer's misconduct; and 4. the existence of any aggravating or mitigating factors. Here, Respondent negligently violated his duties owed to the public, but caused no actual harm or injury. The Board adopts the single aggravating factor found by the Committee: that Respondent has substantial experience in the practice of law. 12 There does not appear to be any mitigating factors in this matter. B. The ABA Standards and the Case Law The Louisiana Supreme Court relies on the ABA's Standards for Imposing Lawyer Sanctions to determine the baseline sanction by examining "the type of duty violated, the lawyer's mental state and the extent of the injury caused; and then adjust[ing] the sanction in 12 Respondent was admitted to the practice of law in Louisiana on October 15,

21 accordance with the aggravating and mitigating factors present." In re Quaid, (La. 11/30/94); 646 So. 2d 343, 350. ABA Standard 7.4 states that an admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in determining whether the lawyer's conduct violates a duty owed to the profession. and causes little or no actual or potential injury to a client, the public, or the legal system. However, Louisiana Supreme Court Rule XIX, Sec. 1 O(A) (5) states: "An admonition cannot be imposed after formal charges have been issued." As discussed in the transcript of this matter. ODC generally handles similar cases which involve violations of Rule 7.2(c)(5) and its precursor, Rule 7.4. through private admonition. Mr. Loughlin was offered an admonition, which he declined. which necessitated the filing of formal charges. 13 Therefore, ABA Standard 7.3 is applicable, as it provides that reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. The Board adopts the hearing committee's finding that the violation herein is found to be an isolated instance of negligence, which was not shown to have injured anyone. Therefore, a reprimand is the appropriate sanction in this instance. Since the reenactment of the Series 7 Rules is still relatively new, there are no cases that provide guidance as to the level of sanction applicable in this matter. Although Respondent's conduct constitutes a minor violation of Rule 7.4 as it existed during the time period in question, it was based upon inexperience with the advertising rules rather than a dishonest or selfish motive. The record demonstrates that no actual harm was caused by Respondent's conduct. 13 The hearing committee specifically asked Mr. Loughlin why he refused the offer of private discipline. He explained that he thought his website was down and inaccessible as of the middle of2009, and so did not believe he was in violation of Rule 7.2 and was therefore not amenable to agreeing to an admonition. See Hearing Transcript, p

22 Respondent's website is no longer available on the internet. Therefore, a public reprimand is in order. CONCLUSION The Board adopts the factual findings of the Committee. The Board adopts the Committee's conclusion that Respondent violated former Rule 7.4. Consequently, the Board recommends that Respondent be reprimanded as well as be required to attend a continuing legal education program on lawyer advertising. Finally, the Board orders that Respondent be assessed with all costs and expenses of these proceedings in accordance with Rule XIX, Section lo.l(a). RULING Considering the foregoing, the Board rules that Respondent, Kearney Soniat Dufossat Loughlin, be publicly reprimanded for engaging in professional misconduct. Additionally, the Board orders that Respondent be assessed with all costs and expenses of these proceedings in accordance with Rule XIX, 10.1 (A). LOUISIANA ATTORNEY DISCIPLINARY BOARD Carl A. Butler John T. Cox, Jr. George L. Crain, Jr. Jamie E. Fontenot Tara L. Mason R. Lewis Smith, Jr. Linda P. Spain R. Steven Te' 22

23 APPENDIX RULE 7.2 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES Effective October 1, 2009 The following shall apply to any communication conveying information about a lawyer, a lawyer's services or a law firm's services: *** (c) Prohibitions and General Rules Governing Content of Advertisements and Unsolicited Written Communications. (1) Statements About Legal Services. 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: (A) (B) (C) (D) (E) (F) (G) (H) (I) contains a material misrepresentation of fact or law; is false, misleading or deceptive; fails to disclose material information necessary to prevent the information supplied from being false, misleading or deceptive; contains a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer's services provided upon request; [Pursuant to the Louisiana Supreme Court's order as of April 27, 2011, the enforcement of Rule 7.2(c)(l)(D) is suspended until further notice.] promises results; states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated; contains a paid testimonial or endorsement, unless the fact of payment is disclosed; includes (i) a portrayal of a client by a non-client without disclaimer of such, as required by Rule 7.2(c)(l0); (ii) the depiction of any events or scenes, other than still pictures, photographs or other static images, that are not actual or authentic without disclaimer of such, as required by Rule 7.2(c)(l0); or (iii) a still picture, photograph or other static 23