UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA. v. Case No. 3:08-CV-15-J-34TEM

Transcription

1 Harrell et al v. The Florida Bar et al Doc. 65 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA WILLIAM H. HARRELL, JR.; et al. Plaintiffs, v. Case No. 3:08-CV-15-J-34TEM THE FLORIDA BAR, et al., Defendants. / DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT OF MOTION AND IN OPPOSITION TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT MOTION FOR SUMMARY JUDGMENT Defendants move for summary judgment on all issues on the grounds that there are no material issues of fact in dispute and defendants are entitled to judgment as a matter of law. MEMORANDUM OF LAW 1. Plaintiff is Precluded from Revisiting Issues Already Decided by This Court and by the Eleventh Circuit Court of Appeals The Eleventh Circuit affirmed most of this Court s summary judgment, agreeing that Plaintiff s challenges to nine of the Rules Regulating The Florida Bar are nonjusticiable. 1 However, the Court remanded the case for consideration of the following three issues: 1 This Court s ruling that Public Citizens has no standing in this matter was not appealed and is the law-of-the-case. United States v. Escobar-Ureego, 110 F.3d 1556, 1560 (Fla. 11 th Cir. 1997). 1 Dockets.Justia.com

2 1. Harrell s facial vagueness challenge to the following five Rules Regulating The Florida Bar: 4-7.1, 4-7.2(c)(1)(G), 4-7.2(c)(2), 4-7.2(c)(3), and 4-7.5(b)(1)(A); 2. Harrell s as-applied First Amendment challenge to Rule 4-7.5(b)(1)(C); and 3. Harrell s as-applied First Amendment challenge to the Bar s rejection pursuant to Rule 4-7.2(c)(2) of the slogan Don t settle for less than you deserve. Harrell v. The Florida Bar, 608 F.3d 1241, 1247 (11 th Cir. 2010). The law-of-the-case doctrine precludes Plaintiff from relitigating issues other than the three set forth above. This That and The Other Gift and Tobacco, Inc. v. Cobb County, Georgia, 439 F.3d 1275, 1283 (11 th Cir. 2006); Schiavo v. Schiavo, 403 F.3d 1289, 1291 (11 th Cir. 2005). Plaintiff s attempt to re-argue any challenges other than those returned for consideration by the Eleventh Circuit should be rejected. 2. Rules 4-7.2(c)(1)(G), 4-7.2(c)(2), 4-7.2(c)(3), 4-7.5(b)(1)(A) and 4-7.1, are Not Unduly Vague in Violation of Due Process Although the Eleventh Circuit found that Harrell has standing to challenge five of the Rules on grounds of vagueness, and that there are no ripeness problems with this challenge, the Court refrained from addressing Harrell s contention of vagueness on the merits. Harrell, 608 F.3d at The lack of merit of Harrell s vagueness claim is addressed below. Relevant Law The void-for-vagueness doctrine serves two main purposes: (1) to provide fair notice of prohibitions, so that individuals may avoid unlawful conduct; and (2) to prevent arbitrary and discriminatory enforcement of laws. Mason v. Florida Bar, 208 F.3d 952, 2

3 959 (11 th Cir. 2000). Facial vagueness occurs when a statute is utterly devoid of a standard of conduct so that it simply has no core and cannot be validly applied to any conduct. High Ol Times, Inc. v. Busbee, 673 F.2d 1225, 1228 (11 th Cir. 1982). The burden of proof is on the complainant to demonstrate that the law is impermissibly vague in all of its applications. Nordgren v. Hafter, 616 F. Supp. 742, 751 (S.D. Miss. 1985) (quoting Village of Hoffman Estates v. Flipside, 455 U.S. 489, 497 (1982)), aff d 789 F.2d 334 (5 th Cir. 1986), cert. denied, 479 U.S. 850 (1986). A regulation is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning. Mason, 208 F.3d at 958; Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973). However, a regulation is not vague when the meaning of the words used can be fairly ascertained by reference to judicial or executive interpretations. Go Leasing, Inc. v. National Trans. Safety Bd., 800 F.2d at 1514, 1525 (9 th Cir. 1986). Nor can a regulation be vague when the meaning of the words can be ascertained by reference to the dictionary or if the words themselves have a common and generally accepted meaning. E.g., Capoccia, v. Committee on Prof. Standards, 1990 WL , *8-9 (N.D.N.Y. 1990) (regulation banning lawyer advertising containing puffery or self-adulation did not fail to give a person of ordinary intelligence fair notice of what is required and forbidden); Committee on Prof. Ethics v. Humphrey, 355 N.W.2d 565, 571 (Ia. 1984) (finding that nondramatic voice as used in lawyer advertising regulation is a simple phrase that is commonly understood; finding that term self-laudatory in lawyer advertising regulation is not vague where the dictionary meaning of laudatory is expressing praise ). 3

4 Additionally, the particular context in which a regulation is promulgated is all important. Wilson v. State Bar of Georgia, 132 F.3d 1422, 1430 (11 th Cir. 1998). When a state bar rule is at issue, if lawyers of reasonable intelligence can derive a core meaning from the rule, the rule may validly be applied to conduct within that meaning and the possibility of a valid application necessarily precludes facial invalidity. Wilson, 132 F.3d at The test is whether the [rule] is substantially incomprehensible to a lawyer of reasonable intelligence. Id. Given the traditions of the legal profession and an attorney s specialized professional training, there is unquestionably some room for enforcement of standards that might be impermissibly vague in other contexts; an attorney in many instances may properly be punished for conduct which all responsible attorneys would recognize as improper for a member of the profession. * * * Arguably vague regulations may take on definiteness and clarity in the context of the profession s complex code of behavior and an attorney is properly charged with knowledge of all applicable disciplinary rules and ethical guidelines. Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 666, 666 n. 9 (1985) (Brennan, J. joined by Marshall, J. concurring in part and dissenting in part). See also Texans Against Censorship v. State Bar of Texas, 888 F. Supp. 1328, 1369 (E.D. Tex. 1995) (lawyers are expected to rely on their heightened abilities of interpretation in attempting to conform their conduct to advertising rules), aff d, 100 F.3d 953 (5 th Cir. 1996); Howell v. State Bar of Texas, 843 F.2d 205, 206 and 208 (5 th Cir.) (denying vagueness challenge to state bar rule in part because lawyers have the benefit of guidance provided by case law, court rules and the lore of the profession ), cert. denied, 488 U.S. 982 (1988); Bishop v. Committee on Prof. Ethics, 521 F. Supp. 1219, 4

5 1232 (S.D. Iowa 1981) (a regulation requiring that lawyer advertising be in a dignified manner was not unconstitutionally vague; a lawyer should have little difficulty distinguishing a dignified advertisement from one that is undignified ), vacated on other grounds, 686 F.2d 1278 (8 th Cir. 1982). Economic regulations are subject to a less strict vagueness test than other regulations because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Village of Hoffman Estates, 455 U.S. at 498. Moreover, a regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process. Id. That a statute may require clarification does not render it unconstitutional for vagueness. Where there is a procedure by which an individual may seek and obtain advice from the regulating body, the rejection of a challenge to the regulation on vagueness grounds is justified. E.g., Arnett v. Kennedy, 416 U.S , (1974); United States Civil Serv. Comm. v. National Ass n of Letter Carriers AFL-CIO, 413 U.S. 548, 580 (1973); Joseph E. Seagram & Sons, Inc., v. Hostetter, 384 U.S. 35, 49 (1966); McGowan v. State of Maryland, 366 U.S. 420, 429 (1961). In the context of lawyer regulations, the Eleventh Circuit has held that the existence of a procedure -- like that offered by The Florida Bar -- whereby a lawyer can obtain an advisory opinion as to the applicability of an advertising regulation bolsters the regulation s validity. Mason, 208 F.3d at 959 n. 4 (11 th Cir. 2000) (citing Arnett and United States Civil Serv. Comm n)); Wilson, 132 F.3d at 1430 (lawyers could derive a core meaning from the regulation where informal and formal advisory opinions were 5

6 available from the state bar). See also Mason v. The Florida Bar, 29 F. Supp.2d 1329, 1333 (M.D. Fla. 1998) (formal procedure offered by The Florida Bar for lawyers to obtain advice regarding compliance with the advertising rule bolstered the rule s validity), aff d in relevant part, 208 F.3d at 959 n.4 (11 th Cir. 2000). Pursuant to Eleventh Circuit Precedent, Rule 4-7.2(c)(2) is Not Unconstitutionally Vague. Applying the principles of law set forth above, the Eleventh Circuit determined that the predecessor rule to Rule 4-7.2(c)(2), containing almost identical language, was not vague. In Mason v. Florida Bar, the Eleventh Circuit reviewed former Florida Bar Rule 4-7.2(j) prohibiting lawyers from making statements that are merely self-laudatory or statements describing or characterizing the quality of their legal services in advertisements and written communication. 208 F.3d at 954. The district court noted that the Bar offers a formal procedure for lawyers to seek advisory interpretations of the rules, and such procedure was available to clarify the rule in question. Id. The district court found that [b]ecause the rule s language is clear and because the Bar provides a formal procedure for attorneys to obtain advice regarding compliance with the rule, the rule is not void for vagueness. Id. On review, the Eleventh Circuit found that although the rule was capable of multiple meanings and potentially had a very broad application, the rule s plain language was adequate to put Bar members on notice that statements describing the quality of their legal services is prohibited. Mason, 208 F.3d at 959. The Court also cited to the Supreme Court s decisions in Arnett, 416 U.S. at 160, and United States Civil Service Commission, 413 U.S. at 548, and found that the availability of advisory opinions to gauge the application of the rule to specific situations bolstered the 6

7 rule s validity. Id. at 959 n.4. The Court affirmed the district court s rejection of the void-for-vagueness challenge to the rule. The Eleventh Circuit s opinion in Mason is directly on point and is dispositive of the challenge to the vagueness of Rule 4-7.2(c)(2). Pursuant to Mason, the rule is not void for vagueness. Rules 4-7.2(c)(1)(G), 4-7.2(c)(3), 4-7.5(b)(1)(A) and are Not Unconstitutionally Vague Plaintiff also alleges that certain terms in Rules 4-7.2(c)(1)(G), 4-7.2(c)(3), and 4-7.5(b)(1)(A) render those rules vague and facially invalid. Specifically, Plaintiff challenges the terms promises results in Rule 4-7.2(c)(1)(G), 2 and the term manipulative in Rules 4-7.2(c)(3) 3 and 4-7.5(b)(1)(A). 4 While Plaintiff does not allege that Rule is vague on its face, he alleges that the comment to the rule makes the rule vague because it states that a lawyer s advertisement should provide only useful, factual information presented in a nonsensational manner. The terms singled out by Plaintiff do not fail to give a person of ordinary intelligence fair notice of what is required and forbidden. Promises results is a simple term that is commonly understood. Useful, factual information is also commonly 2 Rule 4-7.2(c)(1)(G) provides that a lawyer shall not make or permit to be made a false, misleading, or deceptive communication about the lawyer or the lawyer s services. A communication violates this rule if it... promises results. R. Regulating Fla. Bar 4-7.2(c)(1)(G). 3 Rule 7.2(c)(3) provides that a lawyer shall not include in any advertisement or unsolicited written communication any visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events that are deceptive, misleading, manipulative, or likely to confuse the viewer. R. Regulating Fla. Bar 4-7.2(c)(3). 4 Rule 7.5(b)(1)(A) provides that a lawyer s [t]elevision or radio advertisement shall not contain... any feature that is deceptive, misleading, manipulative, or that is likely to confuse the viewer. R. Regulating Fla. Bar 4-7.5(b)(1)(A). 7

8 understood or at least is a term from which a lawyer of reasonable intelligence should be able to derive a core meaning as a matter of ordinary knowledge. See Wilson, 132 F.3d at 1430; Mason 208 F.3d at 959; Capoccia, 1990 WL at *8-9; Humphrey, 355 N.W.2d at 571. These terms are not vague. The term manipulative is not vague. The term manipulative is a term frequently used in statutes along with terms such as deceptive for the purpose of prohibiting certain conduct. 5 And it has been held that such statutes and rules prohibiting manipulative [or] deceptive conduct are not unconstitutionally vague. Todd and Co., Inc. v. Securities and Exchange Comm n, 557 F.2d 1008, 1013 (3d Cir. 1977) (National Association of Securities Dealers fair practice rule prohibiting member from inducing the purchase of any security by means of any manipulative or deceptive device fairly puts those governed on notice and is not unconstitutionally vague); United States v. Persky, 520 F.2d 283, 287 (2d Cir. 1975) (finding that statute and rule prohibiting the use of deceptive or manipulative devices in connection with sales of securities are not vague; [w]hile it is true that the language of [the law] uses general terms, its provisions, while 5 See, e.g., 15 U.S.C. 78j and 78k-(c)(1) (prohibiting any manipulative or deceptive device or contrivance in connection with the purchase or sale of securities); 15 U.S.C. 78n(e) (prohibiting fraudulent, deceptive, or manipulative acts and practices in connection with statements made with respect to tender offers); 15 U.S.C. 80b-6 (prohibiting investment advisors from engaging in any act, practice, or course of business which is fraudulent, deceptive, or manipulative ); 15 U.S.C. 717c-1 (prohibiting any manipulative or deceptive device or contrivance in connection with the purchase or sale of natural gas); 16 U.S.C. 824v (prohibiting any manipulative or deceptive device or contrivance in connection with the purchase or sale of electric energy); 42 U.S.C (prohibiting any manipulative or deceptive device or contrivance in connection with sale or purchase of crude oil gasoline or petroleum distillates at wholesale). 8

9 perhaps falling short of the standards of immutability followed by the laws of the Medes and the Persians, are definite enough according to the canons of Anglo-American law ). Here, the term manipulative as used in Rule 4-7.2(c)(3) and Rule 4-7.5(b)(1)(A) is used in conjunction with the terms deceptive and misleading. Hence, these rules give a lawyer a reasonable opportunity to know what is prohibited. This is especially the case given that the rules apply to the legal profession and its established practices. Moreover, as previously noted, the Bar offers a formal procedure for lawyers to obtain clarification of any ambiguity in the rules before being subject to sanctions. Mason, 208 F.3d at 959 n. 4; Mason, 29 F. Supp.2d at The Rules Regulating The Florida Bar provide that: Voluntary Prior Filing. A lawyer may obtain an advisory opinion concerning the compliance of a contemplated television or radio advertisement prior to production of the advertisement by submitting to The Florida Bar a script, a description of any visual images to be used in a television advertisement, and the fee specified in this rule. The voluntary prior submission shall not satisfy the filing and evaluation requirements of these rules, but The Florida Bar shall charge no additional fee for evaluation of the completed advertisement for which a complete voluntary filing has been made. R. Reg. Fla. Bar 4-7.7(a)(1)(B). The rules also contain a similar provision for a lawyer to obtain an advisory opinion for other types of advertisements and written communications in advance of dissemination. R. Reg. Fla. Bar 4-7.7(b)(2)(B). Plaintiff has even admitted that he may obtain guidance from The Florida Bar regarding compliance with The Florida Bar s advertising rules by submitting a memorandum describing the proposed advertisement to The Florida Bar pursuant to the rules, and that he may also obtain the opinion of a Bar staff member. (Harrell s Resp. to Defs. Req. for Admis. at #9, Doc. 9

10 25-2). 6 As such, the contentions in Plaintiff s motion that lawyers have no guidance on what sorts of statements are allowed or prohibited under the rules and that it is nearly impossible for lawyers to effectively predict how the Bar will apply the rules (Pl. s Mot. for Summ. J. at 7) are simply not correct. Likewise, Plaintiff s complaint that [i]t is very expensive to produce advertising, and especially television advertising and therefore there is a strong incentive to leave out any elements that even arguably violate the Bar s rules to avoid the cost of having to re-produce ads at great expense (Pl. s Mot. for Summ. J. at 12) is without merit. Lawyers may submit a contemplated advertisement to the Bar in mock or draft form before incurring full production costs of the actual advertisement. R. Regulating Fla. Bar 4-7.7(a)(1)(B). Significantly, Plaintiff has admitted that pursuant to Rule 4-7.7(a)(1)(B) he may obtain guidance regarding compliance with The Florida Bar s advertising rules before incurring the expense of printing, filming, recording, or otherwise fully producing the advertisement. (Harrell s Resp. to Defs. Req. for Admis. at #10, Doc. 25-2). There is ample opportunity for lawyers to seek advice on the interpretation of the Bar s rules, and procedures are available to clarify the rules in question and to apprise lawyers of what the rules require. On this basis alone, the Plaintiff s vagueness challenge should fail. See Arnett, 416 U.S. at 160; United States Civil Serv. Comm. 413 U.S. at 580; Joseph E. Seagram & Sons, 384 U.S. at 49; McGowan, 366 U.S. at 429; Zauderer, 6 Harrell s Responses to Defendants Request for Admissions was attached as Exhibit 2 to Defendants Motion for Summary Judgment filed on September 15, 2008, and is listed on the Court s docket as Document

11 471 U.S at 668; Mason, 208 F.3d at 959 n. 4; Wilson, 132 F.3d at 1430; Go Leasing, 800 F.2d at 1525; South Central Terminal Co., 728 F. Supp. at From 1994 through September 2008, the Bar s Ethics and Advertising Department issued 52,741 advisory opinions on lawyer advertising. (Second Affidavit of Elizabeth Clark Tarbert at 6, Doc. 33-3). 7 Although Plaintiff was given access to all of the Bar s many thousands of advertising files for opinions issued during the six years preceding the initiation of this action in 2008, he refers only to a handful of advisory opinions in support of his assertion that the Bar s review process is arbitrary. (Pl. s Mot. for Summ. J. at 2, 9-11). Upon further investigation, however, these opinions do not show arbitrariness. Most of the descriptions are taken from an internal database for Bar staff s use to quickly reference committee and board decisions (see Ex. 12 to Pl. s Mot. for Summ. J.), decisions made based upon a full review of the entire advertisement file. When the larger context of the advertisements is understood, it becomes clear that the decisions are not arbitrary. By way of example, Plaintiff states: To name just a few inconsistencies, the Bar has prohibited images of fortune tellers but allowed images of wizards. (Pl. s Mot. for Summ. J. at 2). The fortune teller advertisement depicts the fortune teller gazing into a crystal ball and telling a man, who was wearing a sling, crutches and a neck brace, that she saw the law firm s telephone number, stating that the accident victim should put their future in good hands by calling the law firm. (Second Tarbert Aff. at 11, Doc. 7 The Second Affidavit of Elizabeth Clark Tarbert was filed on September 29, 2008 as Exhibit 2 to Defendants Response to Plaintiffs Motion for Summary Judgment, and is listed on the Court s docket as Document

12 33-3). The other ad was limited to a simple line illustration of a wizard without any additional detail or commentary. Id. The decision to permit one illustration, but deny the other was not based upon the mere distinction between a fortune teller and a wizard, but upon the belief that the fortune teller advertisement went too far in predicting results. Similarly, Plaintiff references an alleged inconsistency in the prohibition of an advertisement of an elderly person looking out the window of a nursing home and the approval of an advertisement for the representation of DUI victims showing a man looking out a window. (Pls. Mot. for Summ. J. at 11). However, a review of these actual advertisements shows that the prohibited one included a series of photos of elderly people looking alone and sad in what appears to be hospitals and/or nursing homes and each image is onscreen for a significant period of time. (Third Affidavit of Elizabeth Clark Tarbert ( Third Tarbert Aff. ) attached hereto as Ex. 1, at 8). The approved advertisement included a very brief onscreen image of the back of a man, in which there is no view of any part of the face and therefore no depiction of emotion. Id. Some of the differences in decisions referenced by Plaintiff resulted from rule changes or new case law. For example, the advertisement containing a close-up image of a pair of tiger s eyes and the advertisement where a lawyer claimed to have the strength of a lion were disapproved as a result of the Florida Supreme Court s decision in Pape v. Chandler, 918 So. 2d 240 (Fla. 2005) in which the Court disallowed a logo of a pit bull in a spiked collar and the telephone number PITBULL. (Second Tarbert Aff. at 12, Doc. 33-3). The advertisement regarding the panthers was a stylized silhouette that was a play on the firm s name Panter & Panter. Id. 13. The panthers had been approved for 12

13 use prior to the Court s decision in Pape and under the circumstances the Board voted to allow the law firm to continue to use the stylized silhouettes. Id. This decision is consistent with other decisions that a stylized lion as part of a crest on letterhead is permissible. Id. Other alleged inconsistencies pertain to advertisements that contained the same or similar words, but the context of the words in the advertisements led to different decisions. (See Third Tarbert Aff. [Ex. 1] at 9-12). 3. Rules 4-7.5(b)(1)(C) and 4-7.2(c)(2) Are Constitutional As Applied to Harrell Plaintiff s Challenge Appears to Encompass an Irrelevant Issue As a preliminary matter, a large portion of Plaintiff s motion pertaining to his challenge to Rule 4-7.5(b)(1)(C) and the Bar s rejection of his slogan is devoted to the Bar s alleged perception of relevant or irrelevant advertising. (Pl. s Mot. for Summ. J. at 14-21). However, there is not currently a rule that prohibits irrelevant advertising. The Rules pertaining to relevant advertising were removed in In any event, Plaintiff s as-applied challenge to the rules has been limited to a challenge to Rule 4-7.5(b)(1)(C) prohibiting any background sound other than instrumental music in a television or radio advertisement, and a challenge to Rule 4-7.2(c) as applied to the slogan Don t settle for less than you deserve. Harrell, 608 F.3d at 1264, Former Rule 4-7.2(b)(4) and former Rule 4-7.2(c)(1) pertaining to relevant advertising were deleted pursuant to a petition from the Bar to the Florida Supreme Court. See Amendment to the Rules Regulating The Florida Bar, 875 So. 2d 448, 511 (Fla. 2004). 13

14 Advertising that is Unverifiable May be Regulated At its February 1, 2008 meeting, The Florida Bar Board of Governors considered Harrell s advertising slogan Don t settle for less than you deserve. (Tarbert Aff. at 8, Doc. 25-3). 9 The Board of Governors found that the phrase did not violate Rule 4-7.2(c)(2) and it was approved for use. Id. The Board of Governors decision is binding upon the Bar. Id. at 9. Nonetheless, the Bar s rejection of the phrase would have been within the constitutional parameters for the regulation of lawyer advertising. A state bar s restriction of lawyer advertising encompassing misleading characteristics, including advertising of quality of services, promises of results, and subjective statements or statements of opinion, is well within the guidelines established by the United States Supreme Court. Peel v. Attorney Registration and Disciplinary Comm n of Ill., 496 U.S. 91, 101 (1990); Zauderer, 471 U.S. at 640 n.9; Bates, 433 U.S. 350, (1977). The United States Supreme Court has extended First Amendment protection to lawyer advertising only to the extent that it provides accurate factual information that can be objectively verifiable. Id. Likewise, other courts have routinely upheld the principle that lawyer advertising may convey an attorney s level of quality or experience only to the extent that it is objectively verifiable. E.g., Texans Against Censorship, 888 F. Supp. at (finding that regulation prohibiting attorney advertisements that compare a lawyer s services with other lawyers services, unless comparison can be substantiated by reference to verifiable and objective data, reasonably 9 The Affidavit of Elizabeth Clark Tarbert was filed as Exhibit 3 to the Defendants Motion for Summary Judgment filed on September 15, 2008 and is listed as Document 25-3 on the Court s docket. 14

15 fit state s interest in protecting consumers from false or deceptive advertising), Spencer v. Honorable Justices of Sup. Ct. of Pa., 579 F. Supp. 880, (E.D. Pa. 1984) (rejecting constitutional challenge to lawyer advertising regulation because claims using terms such as experienced, expert, highly qualified, or competent, are difficult for a layman, to confirm, measure, or verify; a lawyer may describe the quality of his legal services only through the use of objective, verifiable terms ), aff d, 760 F.2d 161 (3d Cir. 1985); Bishop, 521 F. Supp. at 1225 (finding that prohibition on any claim by lawyer of quality, including terms such as competent and trustworthy was not a violation of plaintiff s First Amendment rights); In re PRB, 868 A.2d 709 (Vt. 2005) (finding lawyer advertisement that contained phrase the experts had serious potential to mislead the consumer since there is no objective way to verify the claim); The Florida Bar v. Pape, 918 So. 2d 240 (Fla. 2005) (holding that lawyer advertising enjoys First Amendment protection only to the extent that it provides accurate factual information that can be objectively verified), cert. denied, 547 U.S (2006); Medina County Bar Ass n, 678 N.E.2d 535 (Oh. 1997) (finding that the statement We Do It Well in an advertisement was unverifiable and therefore impermissible). Here, Rule 4-7.2(c)(2) prohibiting statements in advertising describing or characterizing the quality of the lawyer s services, and its application to reject Harrell s phrase Don t settle for less than you deserve, would be in accordance with the guidelines established by the Supreme Court and enforced by other courts. 15

16 Rule 4-7.5(b)(1)(C) [prohibiting background sounds] Is Constitutional as Interpreted by the Bar Rule 4-7.5(b)(1)(C) must be read in pari materia with rule 4-7.2(c)(16), which also deals with background sounds. The latter rule was the later-adopted rule, approved by the Florida Supreme Court in 2009 and effective February It provides: (16) Prohibited Sounds. A lawyer shall not include in any advertisement or unsolicited written communication any sound that is deceptive, misleading, manipulative, or that is likely to confuse the listener. R. Regulating Fla. Bar 4-7.2(c)(16); Amendments to the Rules Regulating The Florida Bar, 24 So. 3d 63, (Fla. 2009). At the time that the rule was adopted, Rule 4-7.5(b)(1)(C), containing an apparent prohibition on all background sounds other than music, was not repealed, thus requiring that the rules be interpreted in pari materia in order to avoid an apparent conflict. The Bar staff has interpreted and applied the rule in accordance with the more recent and specific language contained in 4-7.2(c)(16), quoted above. approved by the Bar s Standing Committee on Advertising. That approach has been ( 10 of Ex. A to Third Tarbert Aff. [Ex. 1]). Consequently, background sounds are only prohibited when they are deemed to be deceptive, misleading, manipulative, or likely to confuse the listener. The Bar is not limited to regulation of deceptive or misleading advertising. Thus, in The Florida Bar v. Went for It, Inc., the Supreme Court upheld the Bar s 30-day ban on direct mail solicitation after an accident, finding that, [t]he Bar has a substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered. Florida Bar v. Went For It, Inc., 515 U.S. 618, 635 (1995). In Zauderer, 16

17 the Court struck down a rule banning the use of all illustrations in attorney advertising, but recognized that manipulative uses of visual media were subject to appropriate regulation on a cases-by-case basis: We are not persuaded that identifying deceptive or manipulative uses of visual media in advertising is so intrinsically burdensome that the State is entitled to forgo that task in favor of the more convenient but far more restrictive alternative of a blanket ban on the use of illustrations. 471 U.S. at 649 (italics added). The Florida Bar May Regulate Advertising That Meets the Central Hudson Test Lawyer advertising that is not inherently misleading is subject to the constitutional analysis set forth in Central Hudson Gas & Elec. Corp., v. Public Serv. Comm n of N.Y., 447 U.S. 557 (1980). Pursuant to Central Hudson, for commercial speech that is not misleading, a regulation: (1) must promote a substantial governmental interest; (2) must directly advance the interest asserted; and (3) must not be more extensive than necessary to serve that interest. 447 U.S. at 564. Rule 4-7.5(b)(1)(C) as interpreted by the Bar, and Rule 4-7.2(c)(2) as applied to Harrell s slogan, meet all of these requirements. The Florida Bar has Substantial Interests in Regulating Lawyer Advertising The well-established interests of the Bar in establishing standards for regulating lawyer advertising include: (1) ensuring that the public has access to information that is not misleading to assist the public in the comparison and selection of attorneys; and (2) preventing the erosion of the public s confidence and trust in the judicial system and 17

18 curbing activities that negatively affect the administration of justice. These interests have been validated by the Supreme Court. The state interests implicated in [a lawyer advertising case] are particularly strong. In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions....the interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and [are] officers of the courts. Ohralik v. Ohio State Bar Ass n, 436 U.S. 447, 460 (1978). The Court has also acknowledged specifically with regard to The Florida Bar: the Bar s paramount and repeatedly professed objective of curbing activities that negatively affect the administration of justice.... [w]e have little trouble crediting the Bar s interests as substantial.... States have a compelling interest in the practice of professions within their boundaries, and... as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions. Went For It, Inc., 515 U.S ). The Supreme Court has specifically recognized that advertising by a lawyer requires different standards than other industries competing in the market place: lawyers... do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising. Virginia Pharm. Bd. v. Virginia Consumer Council, 425 U.S. 748, 773 n. 25 (1976). Rule 4-7.5(b)(1)(C) [prohibiting background sounds] as Interpreted by the Bar and Rule 4-7.2(c)(2) as applied to Harrell s Slogan Directly Support These Interests Florida s rules regulating lawyer advertising were not formed in a vacuum. The rules were promulgated after extensive study, research and analysis. In 1989, the Bar 18

19 finalized two years of research of the effects of lawyer advertising on public opinion. Went For It, 515 U.S. at 620. The Bar invited comment at public hearings, commissioned surveys, and reviewed extensive public commentary. Id. Based upon these findings, the Bar proposed major revisions to the Rules pertaining to lawyer advertising which were adopted by the Florida Supreme Court. The Florida Bar: Petition to Amend The Rules Regulating The Florida Bar-Advertising Issues, 571 So. 2d 451 (Fla. 1990). The Rules were intended to correct the following abuses identified by the former Commission on Advertising and Solicitation of the Bar: (a) advertising that does not convey complete and useful factual information; (b) advertising that misleads consumers or elevates emotional factors over rational decision making factors; (c) overreaching and coercive advertising; (d) electronic broadcast media advertising; and (e) advertising that negatively affects the administration of justice. 571 So. 2d at 455. In adopting the proposed revisions, the Florida Supreme Court thoughtfully and carefully evaluated them under the First Amendment and Supreme Court case law. Id. at Many of the same arguments raised by Plaintiff here were considered by the Court then. Id. at 456. With some amendment, the Rules pertaining to the content of advertising have remained substantially the same since the major revisions in In adopting the rule revisions in 1990, the Florida Supreme Court stated: We agree with the Bar that certain types of advertising require more restrictions than others; e.g., the electronic broadcast media, if manipulated, can produce unrealistic images and expectations. The proposed rules regarding television advertising concentrate on reducing the effect of technical manipulation. We find that the proposed rules focus on presenting a realistic picture of the attorney and of the services he or she can provide. 19

20 Petition to Amend Rules, 571 So. 2d at The record supporting the rules adopted in 1990 is extremely voluminous and Defendants refer the court to the Brief and Summary of Exhibits filed by The Florida Bar in support of the petition to amend the Rules in Florida Supreme Court Case. No. 74,987. (Docs 25-5 and 25-6). 11 Subsequent to the 1990 revisions to the Rules, The Florida Bar Joint Presidential Advertising Task Force ( Task Force ) collected and analyzed more data, studies and surveys pertaining to lawyer advertising, and underwent an exhaustive review of research conducted by other bar organizations and studies performed for The Florida Bar. (Final Report and Recommendations to The Florida Bar Board of Governors, Florida Bar Joint Presidential Advertising Task Force (May 30, 1997), Doc. 25-7, and apps. G-L of this Report, containing surveys and studies relied upon by the Task Force as referenced in the Report, Doc. 25-8). 12 The analysis of this data led to 10 Other state high courts have concluded that lawyer advertising rules prohibiting or limiting television advertisements containing background sounds are constitutional. See, e.g., In re Felmeister, 518 A.2d 188 (N.J. 1986); Committee on Prof. Ethics v. Humphrey, 355 N.W.2d at 565 (Ia. 1984). 11 The Brief and Summary of Exhibits were filed as Exhibits 5 and 6 to the Defendants Motion for Summary Judgment on September 15, 2008, and are listed on the Court s docket as Documents 25-5 and The Task Force Report and Appendices G-L of the Report were filed on September 15, 2008 as Exhibits 7 and 8 to the Defendants Motion for Summary Judgment and are listed on the Court s docket as Documents 25-7 and Due to the voluminous nature of the documents, the other appendices to the Task Force Report were not filed. 20

21 further revision of the rules pertaining to lawyer advertising by the Florida Supreme Court. (See Doc at 14 of 37); 13 Amendments to Rules, 762 So. 2d at 392. The empirical data gathered showed that lawyer advertising was not providing the public with the useful, factual information that it wants and needs in order to make an informed choice about the hiring of a lawyer. (Doc at Pg. 13 of 37); Amendments to Rules, 762 So. 2d at 406. The data further showed that much lawyer advertising -- especially television advertising and including television advertising containing background sounds -- lowers the public s respect for the fairness and integrity of the legal system and adversely affects the system. Id. (See also Doc at Pg. 24 of 65; Doc at Pg. 12 of 114 and Pgs of 114; Doc at Pgs of 37; Doc at Pg. 36 of 111 and Pgs of 111). The data also indicated that the public approved the rule banning background sounds in broadcast advertisements. (Doc at Pg. 54 of 114). The Rules Are Not More Extensive Than Necessary The rules in question do not prohibit Harrell from advertising or conveying nonmisleading information about his professional services in print, on television and radio, and on the Internet. The rules go no further than necessary to advance substantial governmental interests because they propose to ensure the truthful dissemination of information by regulating, not prohibiting, legal advertising. Petition to Amend the Rules, 571 So. 2d at 460; Amendments to Rules, 762 So. 2d at The reference to page numbers of documents already filed and listed on the Court s docket is to the page numbers as assigned by the Clerk and as indicated at the top of each page. 21

22 Current Status of Bar Advertising Rules Pursuant to a December 2007 order of the Florida Supreme Court, The Florida Bar directed a committee of the Board of Governors ( Board Review Committee ) to undertake a new comprehensive study of all current rules regulating attorney advertising and to recommend modifications to the rules to the Supreme Court. See In re: Amendments to the Rules Regulating The Florida Bar -- Advertising, 971 So. 2d 763, 765 (Fla. 2007). The Board Review Committee conducted an extensive study, including a professional survey by an independent firm and advice on attorney advertising jurisprudence by the Bar s outside counsel. (Third Tarbert Aff. [Ex. 1] at 3). On December 10, 2010 the Board Review Committee made its recommendations to the Board of Governors. Id. at 4. A copy of the revised rules as proposed by the Board Review Committee is attached hereto. (Ex. B to Third Tarbert Aff. [Ex. 1]). The recommended new rules, which would extensively modify and reorganize the current rules, including those challenged in this action, were considered by the Board of Governors on first reading at its December 10 meeting and are scheduled to proceed in accordance with the following calendar pursuant to Florida Bar rules: January 27, 2011 March 24, 2011 May 27, 2011 As soon thereafter as notice requirements permit. Review of proposed revisions by Citizens Forum and receipt of public comment. Additional receipt of public comment on proposed revisions. Consideration of proposed revisions for final vote by Board of Governors. Filing of proposed revisions with Florida Supreme Court. 22

23 Third Tarbert Aff. at 5. The Court may want to consider delaying final consideration of summary judgment motions and the filing of supplemental memoranda until after final disposition of the proposed rules revisions. S/BARRY RICHARD BARRY RICHARD Florida Bar Number M. HOPE KEATING Florida Bar Number BRIDGET SMITHA Florida Bar Number GREENBERG TRAURIG, P.A. 101 East College Avenue Tallahassee, FL Telephone (850) Facsimile (850) Counsel for Defendants CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served via the Court s electronic filing system this 17th day of December, 2010 upon: Gregory A. Beck Brian Wolfman th St. N.W. Washington, DC David Michael Frank Law Office of David M. Frank, P.A Metropolitan Blvd. Tallahassee, FL S/BARRY RICHARD BARRY RICHARD 23

24 TAL 451,571,442v