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 FOR REVIEW FROM A REFEREE S REPORT CORRECTED INITIAL 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 STATEMENT OF THE CASE AND THE FACTS...1 BURDEN OF PROOF AND STANDARD OF REVIEW SUMMARY OF ARGUMENT ARGUMENT I. APPLICATION OF THE BAR S REGULATIONS VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS UNDER THE FACTS OF THIS CASE II. NEITHER MR. TANKSLEY NOR THE FLORIDA COALITION FOR THE HOMELESS ADVERTISED LEGAL SERVICES THROUGH THE PUBLIC MEDIA A. The Flyer was Not Public Media B. The Flyer was Not Lawyer Advertising Because the Lawyer Had No Legal Control Over It III. THE REQUIREMENT THAT TANKSLEY PRE-FILE ALL ADVERTISEMENTS WITH THE FLORIDA BAR FOR ONE YEAR WOULD VIOLATE THE FIRST AMENDMENT CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

4 Cases TABLE OF AUTHORITIES Page(s) Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) , 20, 23 The Florida Bar v. Doe, 634 So. 2d 160 (Fla. 1994) Goldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990) Mason v. Florida Bar, 208 F.3d 952 (11 th Cir. 2000) , 23 NAACP v. Button, 371 U.S. 415 (1963) United Transportation Union v. Michigan Bar, 401 U.S. 576 (1971) Winters v. New York, 333 U.S. 507 (1948) Other Provisions U.S. CONST. amend. I U.S. CONST. amend. XIV 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 ii

5 STATEMENT OF THE CASE AND FACTS Mr. Tanksley s Initial Encounter with the Florida Coalition for the Homeless Mr. Tanksley is a solo practitioner in Sarasota with some expertise in labor law issues. 1 In March, 2003, he was conducting labor law research on the Internet and encountered the website for the Florida Coalition for the Homeless, a nonprofit organization with statutory authority under Florida Statutes Chapters 420 and 421 to help Florida s homeless population (TT , 119; see also , , et. seq., Fla. Stat.). The Coalition s objective is to protect the welfare of the state s homeless population by alleviating homelessness and halting abusive practices that harm the homeless objectives the Coalition promotes by coordinating various state and local social-services and housing agencies and service groups, and directing legal and legislative initiatives, public advocacy campaigns, etc. (TT ). As the Coalition s Executive Director, Greg Mellowe, testified, one of the Coalition s main concerns is that many of the homeless, who are often desperate 1 TT Mr. Tanksley is a former Navy petty officer who graduated from the University of Florida law school and was admitted to the Bar in This is Mr. Tanksley s first experience with a Florida Bar probable cause proceeding. (8/2/04 HT. 9-10). 2 Citations to the transcript of the June 3, 2004 guilt-phase hearing are indicated as TT. [page#]. Citations to the transcripts of the other two hearings are 1

6 for wages but unable to obtain traditional jobs, end up being recruited by labor pools, which are their last resort source of income. (TT. 83, 86, 93-95, ). Yet homeless workers recruited by labor pools are then exploited and cheated of even their minimal wages by means of high transportation charges by the labor pool owners, in direct violation of the Florida Labor Pool Act, a practice Mr. Mellowe described as widespread and a massive violation of the Act and one which the Coalition had for years been trying to combat. 3 (TT ). Despite the passage of the Labor Pool Act, Mellowe discovered that the safeguards in the Act were meaningless because Florida lawyers were unwilling to represent homeless workers seeking to enforce their rights under the Act. (TT ). Thus Mellowe testified that for the entire eight year period from 1995 through 2003, he only found one lawyer in Florida a Legal Services lawyer who was willing to pursue one case under the Act. (Id.). Mellowe explained that he had consequently been trying to organize meetings, publish articles, and use the Coalition website the one encountered by Tanksley to increase awareness of the Labor Pool Act and to jumpstart legal action that might curb labor pool indicated HT [page#] with the hearing date. 3 See Chapter 448, Part II, Fla. Stat. (1995), which regulates labor pool organizations that recruit temporary day-laborers for irregular work. The Coalition and Mellowe were directly involved in the enactment of the Act in 1995, as one of their initiatives on behalf of the homeless. (TT ). 2

7 exploitation of homeless workers. (TT ). 4 Tanksley s Communications with Mellowe When Tanksley encountered the Coalition s website, he noticed that it contained legally erroneous statements concerning the statutory rights of labor pool workers under the Florida Labor Pool Act, statements that exaggerated the workers legal rights and protections. (TT ). On March 28, 2003, he sent the Coalition an pointing out the errors and explaining what the law actually provided. (Comp. Ex. L). His initial advised the Coalition that its website incorrectly informed labor pool workers that they were entitled to overtime benefits under a statute that actually did not apply to them as hourly workers; misinformed workers about the statutory cap on labor-pool transportation charges; and misled workers about the statutory penalties for Chapter 448 violations. (Id.). As shown below, it was that effort by Mr. Tanksley to correct misleading information in the Coalition s Website that led to Mr. Tanksley s present contretemps with The Florida Bar. 5 4 Mellowe s testimony was corroborated by the testimony of Sandra Baar, Director of the Sarasota Homeless Coalition and also a director of the Florida Homeless Coalition (TT , 118), who confirmed that Mellowe had long been trying to find some way to enforce the provisions of the Labor Pool Act. (TT ). 5 At the heart of this case is thus a deep irony, of the let no good deed go unpunished variety, that Mr. Tanksley has been attacked by an arm of one branch 3

8 After receiving Tanksley s pointing out the errors in the Coalition s website, Mellowe thanked Tanksley, and they discussed the Coalition s concern about exploitation of homeless labor pool workers and the workers inability to enforce their legal rights under Chapter 448. (TT , 147). Mellowe essentially set out to recruit Tanksley to help with the Coalition s broad political and legal agenda on behalf of the homeless. (TT ). Thus Mellowe ed Tanksley on May 19, 2003, urging Tanksley to participate in the Coalition s Civil Rights and Economic Justice conference; and scheduling Tanksley to speak at the statewide conference on the homeless (including the National Coalition for the Homeless) which concerned pending labor pool legislation in Congress and the national labor pool justice movement. 6 (Comp. Ex. L). of Florida government (see Fla. Bar Reg. Rule ; Fla. R. Jud. Admin. Rule 2.051(b)(2)) for an utterly harmless violation of the Bar s advertising rules as a result of Tanksley s pro bono effort to prevent the public from being misled by erroneous legal information published by a state-sponsored organization. 6 See Comp. Exh. L; TT Also speaking at those conferences were the former Speaker of the Florida Senate and leaders of the National Law Center for Homelessness and Poverty. The conferences, which were sponsored in part by the Florida Department of Children and Families and Fannie Mae, also addressed the criminalization of homelessness, voting rights issues, U.S. Speaker of the House Hastert s refusal to bring to the floor a proposed amendment to the National Housing Trust Fund, the failure of OSHA, the U.S. Labor Department or state labor officials to protect labor-pool workers, and the effects of labor-pool workers on the Social Security system, especially the Social Security disability insurance system. See Composite Ex. L. It is clear that Tanksley understood what Mellowe s objective was to use legal action as a tool for the Coalition s broader political 4

9 Mellowe s Proposed Flyer As part of his effort to enlist Tanksley for the Coalition s efforts to halt labor pool abuses, Mellowe asked Tanksley if he would be willing to represent homeless day laborers whose rights under the Labor Pool Act had been violated. (TT ) Mellowe, who was clearly excited to have found a lawyer knowledgeable about labor law and apparently willing to help the Coalition, urged Tanksley to represent laborers so that the Labor Pool Act would be enforced (TT. 99, 101), and for that purpose Mellowe wanted to circulate a flyer as a means of jump starting enforcement of the Act (TT , 100). That idea was entirely Mellowe s own, and Tanksley was initially hesitant to get involved, and did not encourage Mellowe or do anything to pursue the flyer idea. (TT. 148) However, several weeks later, Tanksley received an from Mellowe containing a proposed flyer that Mellowe wanted Coalition affiliate organizations to post on their bulletin boards (Ex. C), and Mellowe asked for Tanksley s and objective: Thus Tanksley sent an to Mellowe on April 21, 2003, remarking that if a few suits were filed then the labor pool industry would begin to reform their practices voluntarily reform will certainly follow. (Composite Ex. L). 5

10 Coalition colleagues feedback on the draft flyer. 7 (Ex. L (April 17, ); TT , ). The draft flyer asked whether a client of the organization had been overcharged for transportation by a labor-pool, and advised that such overcharges were illegal and that a lawyer could help them. (Ex. C). Mellowe thought the flyer needed to have Tanksley s name and telephone on it, which he considered indispensable information because one characteristic of the homeless is that they needed to be able to call the lawyer directly. (TT ). Mellowe also decided that the flyer should state that Tanksley would only be paid from any recovery, because he knew that the homeless were very distrustful and wouldn t seek help without that assurance. (TT. 107). Thus, Tanksley made a few editorial changes to the draft flyer (TT ), so that it better explained what an overcharge was under the Act, added Tanksley s name and telephone number, and noted that under the law the employer would have to pay legal fees and costs, and that Tanksley would not charge the employee anything except a percentage of any recovery. Tanksley sent the edited draft back to Mellowe and had no further input into the flyer. (TT. 149). In Tanksley s 7 Mr. Mellowe also ed his draft flyer to April Charney at Gulf Coast Legal Services and to Sandy Baar, the director of Sarasota County Coalition for Homeless, asking for their feedback as well. (TT. 86, ; Exhibit C). In Mellowe s follow-up he urged them to help stop labor pool exploitation of the homeless, and noted that the Act had no state enforcement mechanism, so 6

11 to Mellowe of May 5, 2003 (Comp. Exh. L), he specifically stated that to avoid any Florida Bar problems he did not think the flyer should contain both his name and the Coalition s name, and that it was fine with him if the flyer did not have his name on it at all, and only contained the Coalition s name. The flyers were then relayed by Tanksley to the leaders of two homeless outreach groups, whose names Mellowe had given him as contacts. (TT. 32, 104). Mr. Tanksley testified that he had no legal control over Mr. Mellowe s flyer, but had responded to the latter s request for input and assistance by editing it. (TT ). Mr. Mellowe confirmed that the flyer was indeed his idea and was intended to help homeless labor-pool workers, and though Mr. Mellowe had sought feedback from Mr. Tanksley and two other individuals, Mr. Mellowe rebuffed the Bar s suggestion that Mr. Tanksley had been necessary to approve the flyer. (TT , ). Mellowe s testimony was supported by Sandra Baar, the Director of the Sarasota Homeless Coalition, a director of the Florida Homeless Coalition, and one of the two people Mellowe asked Tanksley to contact. (TT , 118). She testified that she had been aware that Mellowe s organization was seeking to obtain legal enforcement of the state s Labor Pool Act. (TT ). She also litigation was the only possible solution to rampant violations. (Comp. Ex. L). 7

12 testified that her posting of the flyer inside the property of the Resurrection House and the Salvation Army was entirely her decision, and fully within her control, and that she had decided to post the flyer to assist the homeless not for Tanksley s benefit. (TT. 116, ). She also testified that she had chosen to give copies of the flyer to her colleagues who deal with the homeless community, in the hope that she could get information disseminated to the homeless (though she was apparently unaware if any such information was ever actually relayed to the homeless by this means). (TT ). Robert Kyllonen, the Director of Resurrection House, a day resource center for homeless people, and also a member of the Coalition, was the other person Mellowe had asked Tanksley to contact. (TT , 133). Kyllonen testified that he had discussed posting the flyer with Tanksley when they met, but that Tanksley did not ask him to post it. (TT ). While it was Kyllonen s personal understanding that the intent of the conversation was for him to post the flyer (TT. 134), he declined to do so after meeting with Tanksley. (TT. 129). Nonetheless, he later permitted his colleague, Ms. Baar, to post a flyer on his bulletin board in the Resurrection House after she came to him and asked if she could do so. (TT ). 8

13 The Positions of the Bar and Tanksley The Bar s position during the proceedings below was that Tanksley had violated advertising rules 4-7.2(c)(4), 4-7.3(b), and 4-7.7(a) because Mellowe s flyer advertised Tanksley s services, Tanksley had edited the flyer, and it had resulted in Tanksley being retained by ten clients on a contingency fee basis. (TT ). According to the Bar, the flyer was thus an advertisement that violated the rules and warranted admonishment, compulsory attendance at an advertising workshop, and mandatory pre-filing of all of Tanksley s advertisements for one year. (TT. at pp ). The Bar argued that attorneys could not be allowed to circumvent the advertising rules by having others handle distribution of advertisements, and that the rules applied to any type of communication conveying information about a lawyer s legal services, and not merely ads in the usual public media. (TT ). While the Bar conceded that nothing in the flyer was misleading (TT. 142), Mr. Tanksley nevertheless deserved punishment because he had been involved in an advertisement that violated the requirements in the Bar s advertising rules. (TT ). In opposition to the Bar s position, Tanksley argued that he had been trying to help the Coalition protect a marginalized and desperate class (TT , 134-9

14 142), which other lawyers in the state had been unwilling to do because homeless people were so difficult to represent. Tanksley stressed that it had been Mellowe, not him, who had decided to distribute the flyers, and that Mellowe did so as the state-wide representative of the homeless, to stop abuses of the Florida Labor Pool Act. 8 Thus the issue, in Tanksley s view, was whether a lawyer should be punished because a statewide nonprofit organization seeking to help the homeless had decided to identify him as a lawyer who would help the organization s clients, without the lawyer being required to have the organization s publication approved by the Florida Bar (TT ). As Mr. Tanksley stated, he wasn t advertising rather, Mellowe and the Coalition had engaged in protected speech and associational activities to which the Bar s rules did not apply and could not constitutionally apply. (TT , ). Moreover, Tanksley noted, the flyer had only been posted on the bulletin boards of two Coalition affiliated organization (TT , 116, 141), and were not at all dishonest or misleading, as the Bar itself had admitted. See Bar Interrogatory Answers numbers 2, 3 and 4 and Bar Admissions numbers 16 and 17, dated June 8 (TT , ). As Tanksley stated, he had merely been consulted and asked to assist Mellowe with the flyer, which Mellowe and the Coalition had decided to distribute to carry out their mission, not to advance Tanksley s interests. 10

15 12, 2004, admitting that the flyer was not false, misleading or deceptive, nor even lacked information that was needed to render the flyer non-deceptive. He thus moved for a directed verdict, which was denied. (TT ) In fact, the Bar not only characterized Mr. Tanksley s alleged violation a minor infraction (8/2/04 HT. 4), it actually conceded that the dissemination of the information in the flyer to the marginalized group of homeless Floridians was a laudable goal and a public service. (TT. 28). The Bar s position, in other words, seemed to be that Mr. Tanksley deserved to be sanctioned (for the first time in his 18-year career) because of a minor and harmless violation of the Bar s advertising rules, even while all the other lawyers in the state had for eight years provided practically no legal representation to homeless workers exploited by labor pool operators. The Findings and Rulings Below At a brief hearing on July 1, 2004, Judge Brodie announced that she found that the Bar had presented clear and convincing evidence that the flyer, as disseminated, was an advertisement within the Rules Regulating The Florida Bar, that Mr. Tanksley had approved and participated in its preparation and dissemination (7/1/04 HT. 3-4), and that Tanksley had thereby violated Rules 4- (TT. at pp ). 11

16 7.2(c)(4), 4-7.3, and because the flyer did not comply with the costs and hiring disclosure requirements and the Bar s advertisement filing requirements. (7/1/04 HT. 4). At the subsequent penalty phase hearing of August 3, 2004, the Bar s counsel described Mr. Tanksley s violation as minor misconduct that involved no deceit (8/2/04 HT. 4, 23), but nevertheless sought Tanksley s admonishment, compulsory attendance at an advertising workshop, and an order requiring him to pre-file all ads for a year. (Id. at 4-5). Mr. Tanksley urged the Court not to impose admonishment or to require him to pre-file all ads, and that the maximum penalty under the circumstances was for him to attend an advertising workshop, since there was no misrepresentation or deception involved. (8/2/04 HT ). Mr. Tanksley also stressed that no other attorneys in Florida were willing to handle these cases because they were so unattractive, and so his efforts to help the homeless and the Coalition reflected his good character. (8/2/04 HT , 20-21). He also noted that he had cooperated fully with the Bar and had even tried to rectify the situation by asking the homeless organizations to take down the flyer when the Bar had objected to it. (Id. at ) After hearing the parties arguments, Judge Brodie stated that she had concluded that Mr. Tanksley had not complied with the strict letter of the Bar rules 12

17 on advertising, yet he had been willing to take on clients that no other lawyers were representing because these are such a difficult group of people to represent. Judge Brodie stated that Mr. Tanksley had acted prudently when the Bar had questioned the flyers, by asking the organizations to remove the flyers. (8/2/04 TT ). Judge Brodie also commented that this was obviously... not your typical [egregious] advertising case, but concluded that she was nonetheless required to impose a sanction. She recommended that Mr. Tanksley be diverted into an advertising workshop and required to pre-file all ads for a year. (Id. at ) In Judge Brodie s written report to the Court, she reiterated her finding that the flyer was an advertisement, that Tanksley was involved in its preparation and dissemination, that Tanksley had obtained 10 clients as a result, and that the advertisement violated Rules 4-7.2(c)(4), 4-7.3(b), and 4-7.7(a) because it did not contain the required costs disclosure language and the required warning that the hiring of a lawyer was an important decision (etc.), and because Tanksley did not timely file a copy of the flyer with the Bar s advertising committee. (Report of Referee at pp. 1-2). Judge Brodie also reiterated her mitigation finding that Tanksley had been willing to represent people who no other lawyers wanted to represent. Nevertheless she confirmed her recommendation that Tanksley be 13

18 required to attend the Bar s Advertising Workshop and to pre-file all ads with the advertising committee for one year. Id. at p. 3. The order also recommended that Tanksley be required to pay the Bar s costs in the amount of $2, (Report at pp. 3-4). Mr. Tanksley then timely petitioned this Court for review. BURDEN OF PROOF AND STANDARD OF REVIEW It is well established that the party seeking to uphold a restriction on commercial speech carries the burden of justifying it. This burden 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. 761 (1993) (quotation and citations omitted)). The Bar s factual burden of proof is the clear and convincing standard, which is more stringent that the preponderance standard, and is defined as an intermediate level of proof [that] entails both a qualitative and quantitative standard. Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486, n.4 (Fla. 1999); Fla. Stds. Imposing Law. Sancs On review in this Court, a Referee s factual findings should be upheld to the extent they are supported by competent substantial evidence. The Florida Bar v. Williams, 753 So. 2d 1258, 1262 (Fla. 2000). Questions of law are subject to de 14

19 novo review. The Florida Bar v. Cosnow, 797 So. 2d 1255, 1258 (Fla. 2001). [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). SUMMARY OF ARGUMENT This is an unusual advertising case. The Bar has conceded that the purported advertisement a flyer posted in private property was not false, misleading or deceptive. The Bar has also conceded that the flyer, as disseminated, lacked no information without which it would have been untruthful, false, deceptive or misleading. Under such circumstances, application of the three Rules Regulating The Florida Bar cited by the Referee as a basis to find Mr. Tanksley guilty violates the First and Fourteenth Amendments. Mr. Tanksley is also not guilty because the Bar rules he is charged with violating relate to advertising in the public media, and the flyer was posted inside private property. The Bar rules do not expressly (or even implicitly) expand the definition of the term public media to include a communication posted in such a location, and no reasonable construction of the term public media can cover such a location. Mr. Tanksley is not guilty because neither he nor any agent of his posted the 15

20 flyer. The person who did post the two flyers (homeless advocate Sandy Baar) had control over them and posted them to promote her organization s social and political objectives not for any benefit to Tanksley. Finally, even if Mr. Tanksley were guilty of violating a Bar rule, the recommendation that he file (actually, pre-file) all advertisements for one year would violate the First and Fourteenth Amendments. The Bar s exempt advertisements pose no actual or potential threat to the public at large, and there is no concrete evidence that Mr. Tanksley presents some genuine, unique threat that would justify such a requirement. 16

21 ARGUMENT I. APPLICATION OF THE BAR S REGULATIONS VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS UNDER THE FACTS OF THIS CASE. It is undisputed that the flyer the Resurrection House and Salvation Army permitted Sandy Baar to post inside their private property was not false, misleading or deceptive, and that the flyer as disseminated lacked no information without which it would have been untruthful, false, deceptive or misleading. (TT , 141; Bar Interrogatory Answers numbers 2, 3 and 4 and Bar Admissions numbers 16 and 17, dated June 12, 2004). The party seeking to uphold a restriction on commercial speech carries the burden of justifying it. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n. 20 (1983). Where alleged advertising information is truthful, it passes the first prong of the Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, (1980), First Amendment test for protectable commercial speech. A court considering the constitutionality of a State s restrictions on such truthful speech then applies a related three-prong test from that case: (1) whether the state's interests in limiting the speech are substantial; (2) whether the challenged regulation advances these interests in a direct and material way; and 17

22 (3) whether the extent of the restriction on protected speech is in reasonable proportion to the interests served. Mason v. Florida Bar, 208 F.3d 952, (11 th Cir. 2000) (citing Central Hudson, 447 U.S. at ). Given its concessions and the facts in this case, the Bar s current application of Rules 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) fails to pass the second and third prongs of this test. In Mason, The Florida Bar argued that its restriction on a lawyer s advertising regarding his Martindale-Hubbell rating should be upheld because it ha[d] not insisted upon an outright ban on speech, but merely require[d] the use of a disclaimer. 208 F.3d at 958. The Eleventh Circuit disagreed: Even partial restrictions on commercial speech must be supported by a showing of some identifiable harm. Accordingly, we hold that the Bar is not relieved of its burden to identify a genuine threat of danger simply because it requires a disclaimer, rather than a complete ban on Mason's speech. Id. Because the Bar had failed in that case to meets its burden of producing concrete evidence that the lawyer s speech threatened to mislead the public the court held that the Bar s limited regulation of that speech did not advance the 18

23 State s legitimate interests in a direct and material way sufficient to satisfy the First and Fourteenth Amendments. Id. As in Mason, application of the relevant Bar advertising rules does not advance the State s interests in a direct and material way in this case because it is undisputed that the flyer, as disseminated, lacked no information without which it would have been untruthful, false, deceptive or misleading. (TT , 141; Bar Interrogatory Answers numbers 2, 3 and 4 and Bar Admissions numbers 16 and 17, dated June 12, 2004). This is also a case in which non-profit corporations were engaged in speech inside of their private property to advance social and political objectives. Given the considerable protection such speech enjoys under the First Amendment, NAACP v. Button, 371 U.S. 415 (1963); United Transportation Union v. Michigan Bar, 401 U.S. 576, 585 (1971), the Bar has failed to prove how its restrictions on that speech are in reasonable proportion to the interests purportedly served by those restrictions, other than to cite The Florida Bar v. Doe, 634 So. 2d 160, 162 (Fla. 1994). (TT. 153). In Doe, the Court stated The rules regulating lawyer advertising in Florida are constitutional and rejected an overbreadth argument as well as a claim that the commercial speech at issue was a public service announcement. 634 So. 2d at 162. The Court did not deal with the situation here, where the Bar has conceded 19

24 that the speech at issue as disseminated was not untruthful, false, deceptive or misleading and lacked no information without which it would have been untruthful, false, deceptive or misleading. Under Central Hudson and under Mason, punishment of Mr. Tanksley based on application of the Bar s advertising regulations in this case does not pass constitutional scrutiny. II. NEITHER MR. TANKSLEY NOR THE FLORIDA COALITION FOR THE HOMELESS ADVERTISED LEGAL SERVICES THROUGH THE PUBLIC MEDIA. A. The Flyer was Not Public Media. The Rules Regulating The Florida Bar at issue in the Complaint all arise under subchapter 4-7, which regulates the public media. Rule 4-7.1(a). To prevail in this case, the Bar must thus have proven by clear and convincing evidence that Mr. Tanksley advertised legal services through the public media. General Rule 4-7.1(a) defines public media as including but not being limited to: print media, such as a telephone directory, legal directory, newspaper or other periodical; outdoor advertising, such as billboards and other signs; radio, television, and computer-accessed communications; recorded messages the public may access by dialing a telephone number; and written communication in accordance with rule While the Bar rules thus define the term somewhat amorphously, public media facially, logically and constitutionally cannot include 20

25 a flyer posted inside private property, with the primary purpose of serving political and social objectives. See Winters v. New York, 333 U.S. 507, (1948) ( A failure of a statute limiting freedom of expression to give fair notice of what acts will be punished and such a statute's inclusion of prohibitions against expressions, protected by the principles of the First Amendment violates an accused s rights under procedural due process and freedom of speech or press. ). Since the Bar has failed to prove by clear and convincing evidence that Mr. Tanksley advertised in the public media, the referee s finding of guilt must be reversed. b. The Flyer was Not Lawyer Advertising Because the Lawyer Had No Legal Control Over It. An attorney cannot be guilty of charges he violated a Bar rule unless he or his agent violates that rule. The alleged violations at issue here failure to make disclaimers in the flyer and failure to file the flyer with the Bar would not be viable unless the flyer were presented to the homeless by someone. Since it was actually Sandy Baar that posted the flyer, Mr. Tanksley cannot be guilty of violating the Bar s rules for that posting unless she was acting as his agent. Unlike the lawyer in The Florida Bar v. Doe, 634 So. 2d at , Tanksley did not originate the alleged advertisement; he did not pay for it; and he did not have legal control over it. On the other hand, Ms. Baar, who did have 21

26 control over the flyer, did not care one whit about Mr. Tanksley s interests when she chose to post it as a public service. (TT. 116, ). She, like Mr. Mellowe, was concerned only about her marginalized constituents, who had been unable for almost a decade since the Labor Pool Act s passage to obtain lawyers willing to champion their cause. Since Mr. Tanksley lacked control over her actions, no agency relationship existed under Florida law, Goldschmidt v. Holman, 571 So. 2d 422, 424 n.5 (Fla. 1990) (purported principal's knowledge that plaintiff sought to hold him liable for acts of alleged agent insufficient, absent proof of control, to establish agency), and he did not violate the Bar s rules governing advertising. III. THE REQUIREMENT THAT TANKSLEY PRE-FILE ALL ADVERTISEMENTS WITH THE FLORIDA BAR FOR ONE YEAR WOULD VIOLATE THE FIRST AMENDMENT. In her report, the Referee recommended that Mr. Tanksley pre-file all advertisements with The Florida Bar s Standing Committee on Advertising for one year. Such a requirement would violate the First Amendment to the extent it applied to the matters exempt from any filing requirement under Rule The communications covered by the exemption pose no genuine threat of danger to the public; that s why they are exempt. And this not a case where a restriction covering exempt communications might be justified on some ad hoc basis because 22

27 the lawyer is dishonest or incompetent, and cannot be trusted. Mr. Tanksley had a spotless Bar record before this case, and the record in this case is that he did all he could to cooperate with the Bar. There simply is no evidence much less, concrete evidence that a prefiling requirement (or any filing requirement) for communications otherwise exempt under Rule is constitutionally justified in this case. Mason, 208 F.3d at , 958; Central Hudson, 447 U.S. at The Referee s recommendation for such a requirement should be rejected. 23

28 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. 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 24

29 CERTIFICATE OF SERVICE On June 8, 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. 25