The Old York Review Board No. 2011-650 Sheldon Hooper, Defendant Appellant v. Old York Professional Responsibility Disciplinary Commission Plaintiff Appellee. Argued November 2011 Decided April 2012 OPINION: This matter is before the Old York Court Review Board. Defendant-Appellant, Sheldon Hooper, appeals the decision of the Old York Board of Professional Responsibility Disciplinary Hearing Panel ( Hearing Panel ) finding that his interaction with Leonard Kofstadter created an attorney-client relationship in violation of Old York Rule of Professional Conduct 5.5 1 ( Rule 5.5 ) against the unauthorized practice of law. 2 Hooper also appeals the Hearing Panel s finding that his video advertisements violate Old York Rule of Professional Conduct 7.1 ( Rule 7.1 ), 1 Old York Rule 5.5 states: General Rule. No person shall engage in the practice of law in Old York or in any manner hold himself out as authorized or competent to practice law in Old York unless enrolled as an active member of the Old York Bar, except as otherwise permitted by these Rules. Comment: Definitions: "Practice of Law" means the provision of professional legal advice or services where there is a client relationship of trust or reliance. 2 Old York Rule of Professional Conduct Rule 8.5 states: Disciplinary Authority. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. 1
regarding misleading attorney advertising, because the advertisements violate Old York Rule of Professional Conduct 9.1 (a) 3 ( Rule 9.1 (a) ). We find that Sheldon Hooper did not create an attorney-client relationship with Kofstadter, and therefore did not violate Rule 5.5. Furthermore, Hooper s advertisements are protected speech under the First Amendment. We reverse the Hearing Panel s decision to sanction Hooper. STATEMENT OF THE CASE Hooper appeals the determination that his conduct and advertisements violated Rule 5.5 and Rule 7.1. Hooper presents the following issues for review: 1. Whether Hooper s LInfo Blog 4 post in response to Kofstadter s legal question constitutes legal advice, thereby creating an attorney-client relationship in a jurisdiction in which Hooper was not licensed in violation of Rule 5.5; and 3 Old York Rule of Professional Conduct 7.1 states: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Old York Rule of Professional Conduct 9.1 (a)(1)-(2) states: (a) An advertisement shall not: (1) include the portrayal of a judge or opposing counsel; or, (2) utilize methods or portrayals to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence. 4 LInfo Blog or Legal Information Blog is a blogging website where people can post questions to be answered by an attorney who signs up with a blog and posts a profile showing their credentials and information. However, the credentials are not verified. Legal practitioners are able to correspond and comment on the issues, as well as provide personal information about themselves or their practice. At the top of the page, LInfo Blog provides a disclaimer of representation for the practitioners and requests blog posters only write general inquiries. Disclaimer: The information presented at this site should not be construed to be formal legal advice or the formation of a lawyer/client relationship. The use of the Internet for communications with this law firm will not establish an attorney-client relationship and messages containing confidential or time-sensitive information should not be sent. 2
2. Whether Hooper s advertisements were in violation of Rule 9.1 (a), which, in furtherance of Rule 7.1, prohibits specific types of attorney speech. PROCEDURAL HISTORY The Hearing Panel disciplined Hooper for his actions found to violate Rule 5.5, because of it s finding that he engaged in an attorney-client relationship with layperson Kofstadter through the LInfo Blog. In addition, Hooper was disciplined by the Hearing Panel for the content of video advertisements posted on his firm s website. Such advertisements were found to violate Rule 9.1 (a), which prohibits specific types of misleading attorney speech. A violation of Rule 9.1 (a) also constitutes a violation of the more general Rule 7.1. For these violations, Hooper was sentenced to a one-year suspension from the practice of law in the state of Old York and was ordered to pay restitution in the amount of five thousand dollars ($5,000.00). STATEMENT OF THE FACTS We adopt the facts as stated in the opinion by the Hearing Panel, Committee, No. 08-2011. DISCUSSION AND DECISION Issue I: Attorney-Client Relationship and the Unauthorized Practice of Law In reviewing the Hearing Panel s conclusion that Hooper engaged in the unauthorized practice of law, our determination will hinge on whether the Hearing Panel was correct in recognizing the existence of an attorney-client relationship. While we agree with the Hearing Panel that the law should accommodate new methods of technology and communication, the essential elements of the law still remain. The Hearing Panel was correct in using the 3-prong Kurtenbach test in determining whether the attorney-client relationship existed. However, we do not agree with the Hearing Panel s application of the test to these facts. We find that no 3
attorney-client relationship was ever established between Hooper and Kofstadter. Accordingly, we reverse the Hearing Panel s decision finding that Hooper violated Rule 5.5. Restatement Test for Attorney-Client Relationship Applying the Restatement definition as used by the Hearing Panel, an attorney-client relationship is formed when: (1) a person manifests to a lawyer the person s intent that the lawyer provide legal services for the person; and (2) the lawyer: (a) manifests to the person consent to do so; or (b) fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or (3) a tribunal with power to do so appoints the lawyer to provide the services. Restatement (Third) of the Law Governing Lawyers 14. Additionally, as the Hearing Panel stated, the court further defined the relationship as being created when: (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance. Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977). The relationship may also be formed either expressly, e.g. through a contract, or impliedly as is the argument in this case. Id. Given that both parties stipulate to the fact that no express agreement was executed between the parties, we need only look to the existence of an implied attorney-client relationship. Our analysis of the implied relationship is evaluated in a similar manner as the Hearing Panel s evaluation, based on prongs (1) and (3) of the Kurtenbach test. 4
First, we consider Kofstadter s intent on seeking professional legal advice. While Kofstadter was indeed seeking a response to his question, soliciting such feedback in an informal blog does not necessarily manifest one s intent to seek professional legal assistance. Conversely, such actions could also be construed as merely seeking public opinion. In Farmer v. Mount Vernon Realty, Inc., the U.S. District Court for the District of Columbia held that an attorney-client relationship could not be established by an informal conversation without any additional contact between the parties. The court characterized such informal conversation as mere preliminary steps to establishing an attorney-client relationship. 720 F. Supp. 223, 225 (D.D.C. 1989). We find the blog communication between Hooper and Kofstadter to be informal in nature and insufficient to demonstrate any intention Kofstadter may have had to create a formal attorney-client relationship. At the most, Kofstadter s blog post rose to the level of the preliminary step discussed in Farmer. Generally, the purpose of discussing a legal issue is to obtain representation, but considering the disclaimer of representation, which existed on the blog, Kofstadter was given sufficient notice that no such relationship could have been created. It would be against public policy to decide otherwise. That is, to hold that an individual could establish such a relationship despite having clear and unambiguous knowledge of the disclaimer of representation would be contrary to public policy. Kofstadter should have known that no attorney-client relationship could have existed. Consequently, we cannot conclude any such relationship existed. See also Green v. Montgomery County, 784 F. Supp. 841, 846 (M.D. Ala. 1992). Because the blog post is only a preliminary step to establishing an attorney-client relationship, we decline to make any determination as to whether that relationship falls within the realm of representation. 5
Although we have already shown that Kofstadter cannot meet the first prong of the Kurtenbach test, we will complete our analysis by looking to whether Hooper expressly or impliedly agreed to give legal advice, or actually gave any such advice. While Hooper does address, albeit briefly, Kofstadter s legal question, we are not convinced that Hooper s response constitutes genuine professional legal advice. The blog conversation between Hooper and Kofstadter was far from an official consultation. The content of Hooper s post seemed to reflect a general discontent with the American legal system, and as such, did not specifically render legal advice. In fact, Hooper was using the blog as an advertising device. Hooper provided no indication on the blog site that would have implied a commitment on his part to Kofstadter s legal dilemma; he merely suggested that Kofstadter view Hooper s profile to contact him further. See Ill. St. Bar Ass n Op. 96-10 (1997). To discern whether Hooper impliedly agreed to provide advice to Kofstadter, we look to the court s opinion in Bohn v. Cody, 832 P.2d 71 (Wash. 1992). There, the attorney expressly stated to the client that he was unable to provide her with advice. Unlike the attorney in Bohn, Hooper did not expressly communicate to Kofstadter his intent not to provide advice. Therefore, we must examine whether Hooper impliedly agreed to give Kofstadter advice through his blog posting. This examination turns largely on the client s subjective belief that [a relationship] exists, 832 P.2d 71, and looks to the nature of the work performed. Moen v. Thomas, 682 N.W.2d 738 (N.D. 2004). Additionally, we are not foreclosing the possibility that online communications could, in fact, create an attorney-client relationship. However, such a formation is only possible if the layperson reasonably believed that such a relationship was formed. Phila. Bar Ass n Prof l Guidance Comm., Op. 98-6 (1998). However, the belief does not control the 6
issue unless it is reasonably formed based on attending circumstances, including the attorney s words or actions. Id. The Hearing Panel directs us to Togstad v. Vesely, Otto, Miller & Keefe in order to show that a client s subjective belief can be enough to prove the existence of an attorney-client relationship. Togstad v. Vesely, Otto, Miller, & O Keefe, 291 N.W.2d 686, 690 (Minn. 1980). However, we believe that the Hearing Panel improperly applied this case because the facts of Togstad are too dissimilar from the facts at issue here. In Togstad, the parties did not contest the issue of whether advice provided was actually legal advice as opposed to an opinion. Id. In this case, we have already stated that Hooper s blog post was not legal advice. Under the circumstances surrounding this case, we find it unreasonable for Kofstadter to have believed, based on Hooper s online blog reply-post, that Hooper intended to provide any legal advice to Kofstadter. By posting such a general response, Hooper did not demonstrate any indication, either impliedly or expressly, that he would provide Kofstadter legal advice. He even went so far as to direct Kofstadter to his profile and website for further correspondence in a professional capacity. Additionally, Hooper s blog posting required no legal work to be performed; conversely, Hooper spent a few minutes to reply to a blog post with his personal opinion. Furthermore, the average attorney-client relationship involves a fee arrangement more often than not. [I]f legal advice is sought from an attorney... and if the attorney gives the advice for which fees will be charged, an attorney/client relationship is created that cannot be disclaimed by the attorney. Utah St. Bar Ethics Advisory Opinion Comm., Op. 96-12 (1997). While fees are not always necessary to establish an attorney-client relationship, the absence of such an arrangement can be an indication that an attorney-client relationship never existed. Kubin v. Miller, 801 F. Supp. 1101, 1115 (S.D.N.Y. 1992). The lack of fees in this case is 7
indicative of a simple social interaction rather than the formation of a formal official attorneyclient relationship. Kofstadter could not have reasonably believed that an attorney-client relationship was formed as a result of this blog posting. For the foregoing reasons, we find that Hooper did not form an attorney-client relationship with Kofstadter, and therefore did not commit the unauthorized practice of law. We reverse the Hearing Panel s decision to sanction Hooper as to this issue. Issue II: First Amendment and Attorney Commercial Speech Old York Rule of Professional Conduct 7.1 provides: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. The First Amendment provides that Congress shall make no law... abridging the freedom of speech. U.S. Const. amend. I. The Disciplinary Commission restricted Hooper s speech under Rule 9.1 (a), which addresses the depiction of judges and opposing counsel as well as the use of irrelevant content in attorney advertising. In the arena of commercial speech, Central Hudson and its progeny govern the limits of First Amendment protections. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commin. of New York, 447 U.S. 557 (1980). Hooper s commercial speech is indeed protected by the First Amendment. Therefore, we reverse the Hearing Panel s decision as to this issue as well. Hooper contends that Rule 9.1 (a) is unconstitutional because the regulation is more extensive than necessary to serve the state s interest. To evaluate Hooper s position, 8
we look to the Central Hudson test. To determine whether a regulation is constitutional, the United States Supreme Court, in Central Hudson, sets out the following four-factor test: (1) whether the expression is protected by the First Amendment.... Next, we ask (2) whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine (3) whether the regulation directly advances that governmental interest asserted, and (4) whether it is not more extensive than is necessary to serve that interest. Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). In our analysis, regulation of commercial speech receives an intermediate level of scrutiny. Fla. Bar v. Went For It, 515 U.S. 618, 623 (1995). Hooper does not challenge the validity of Rule 7.1. He solely challenges the validity of the Rule 9.1 (a). Therefore, we will use the Central Hudson factors to analyze Hooper s arguments below. The state has a substantial interest in regulating attorney speech. There should be no doubt that such an interest is served by regulating the actions undertaken by attorneys professionals who are licensed by a state bar association. 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. Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975). Hooper maintains that regulating online pop-up videos on attorney websites does not serve a substantial state interest. We reject this argument. The Court in Zauderer v. Office of Disciplinary Counsel of Supreme Court, distinguished between solicitation made in print and those made in person, stating that 9
[p]rint advertising may convey information and ideas more or less effectively, but in most cases, it will lack the coercive force of the personal presence of a trained advocate. 471 U.S. 626, 642 (1985). In that case, the Court determined that the substantial interests that justified the ban on in-person solicitation upheld in Ohralik cannot justify the discipline imposed on appellant for the content of his advertisement. Id. (discussing Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978)). While Hooper s videos are neither in-person solicitation nor printed solicitation per se, the dangers posed by online video solicitation are more akin to the fraud, undue influence,... [and] overreaching deemed to be intrinsic of in-person solicitation. Ohralik, 436 U.S. 447, 448. The state s interest served by prohibiting false or misleading attorney speech is sufficiently broad to cover attorney online advertising. Moreover, the law should not be forced to tarry behind technology advancements. Therefore, the state has a substantial interest in regulating attorney commercial speech. The third prong of the Central Hudson test looks to whether the regulation directly advances the state s interest. Specifically, [t]he penultimate prong of the Central Hudson test requires that a regulation impinging upon commercial expression directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government s purpose. Edenfield v. Fane, 507 U.S. 761, 770 (1993) (quoting Central Hudson, 447 U.S. at 564). The burden placed on the Disciplinary Commission to justify a restriction on commercial speech 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 10
real and that its restriction will in fact alleviate them to a material degree. Edenfield., 507 U.S. at 770-71. The Disciplinary Commission maintains that the substantial state interest of protecting the public from fraud, overreach, and other ills associated with false or misleading speech is, in fact, directly advanced by Rule 9.1 (a). It asserts that a prohibition on portrayals of judges and attorneys, which may be used to suggest that an attorney will convince all judges and be victorious against all opposing counsel, effectively prevents the public from being misled about the attorney s services. These types of content-based regulations have been found to be unconstitutional in multiple circuits. However, content in commercial speech that is irrelevant, unverifiable, [and] non-informational may not be inherently false, deceptive or misleading. Alexander v. Cahill, 598 F.3d 79, 89 (2d Cir. 2010). When applying Central Hudson to the disputed regulation, we find that the regulation neither materially advances the State s substantial interest nor is it narrowly tailored. A. Rule 9.1 (a)(1): Portrayal of Judges and Opposing Counsel The Disciplinary Commission believes that by prohibiting all portrayals of judges and opposing counsel, it is, in turn, protecting the public from misleading advertisements. Additionally, it argues that the regulation advances the premise that such portrayals could possibly create false impressions of future performance by the attorney and that, absent a disclaimer, Hooper s advertisements create unjustified expectations that mislead potential clients. Advertising claims as to the quality of services... [that may not be] susceptible of measurement or verification... may be so likely to be misleading as to warrant 11
restriction. Bates v. State Bar of Ariz., 433 U.S. 350, 383-84 (1977). We reject this argument. While there is a substantial state interest in protecting the public from advertisements that may suggest past performance as an indicator of future success and/or the ability to unduly influence a tribunal, those dangers are not present in Hooper s advertisements. The depiction of a judge, alone, is not necessarily misleading. Alexander, 598 F.3d at 93. The Disciplinary Commission s argument amounts to no more than an assertion that the public is insufficiently sophisticated to avoid being misled by a courtroom not devoid of its normal occupants. Public Citizen, Inc. v. La. Atty. Disciplinary Bd., 632 F.3d 212, 223 (5th. Cir. 2011). In Edenfield, the Supreme Court articulated the standard by which we are able to determine whether a regulation is, in fact, narrowly drawn. [L]aws restricting commercial speech... need only be tailored in a reasonable manner to serve a substantial state interest in order to survive First Amendment scrutiny. Edenfield v. Fane, 507 U.S. 761, 767 (1993). While narrow tailoring does not require a perfect fit, the prohibition on the portrayal of judges is not narrowly tailored because it encompasses all portrayals of judges and opposing counsel that could possibly mislead the public. Therefore, we hold the regulation on the portrayal of judges and opposing counsel does not advance the State s interest and is not narrowly tailored. B. Rule 9.1 (a)(2): Irrelevant Content As with portrayals of judges and opposing counsel, the Disciplinary Commission asserts that irrelevant content in attorney advertising is inherently misleading. Specifically, the Hearing Panel maintains that irrelevant content is devoid of intrinsic 12
meaning, may be inherently misleading, and that attorney advertisements that violate state regulations have a history of being deceptive. Peel v. Atty. Registration & Disciplinary Comm n, 496 U.S. 91, 112 (1990). While we find that the Disciplinary Commission does have a substantial interest in ensuring that speech is factually accurate, we reject the argument that irrelevant content is always misleading. Like the plaintiff in Alexander, the Disciplinary Commission appear[s] to conflate irrelevant components of advertising with misleading advertising. These are not one and the same. Questions of taste or effectiveness in advertising are generally matters of subjective judgment. Alexander, 598 F.3d at 93. Lastly, we do not find the irrelevant content in Hooper s advertisement actually misleading. The irrelevant content that the Disciplinary Commission has noted is the portrayal of aliens involved in a contract dispute, which is a scenario that could not possibly mislead an ordinary viewer. The average person would not think that Hooper s portrayal of aliens had any bearing on his legal skills. The Disciplinary Commission s position appears to conflate irrelevant content with misleading content. Id. We hold that since the regulation does not directly advance the State s interest and because it is not narrowly tailored, the prohibition on irrelevant content is unconstitutional. For the foregoing reasons, we find that Hooper s advertisements are protected by the First Amendment and reverse the Hearing Panel s decision to sanction Hooper. We hereby dismiss all the charges. 13
Appendix 1. Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010). 2. Bates v. State Bar of Ariz., 433 U.S. 350 (1977). 3. Bohn v. Cody, 832 P.2d 71 (Wash. 1992). 4. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commin. of New York, 447 U.S. 557 (1980). 5. Edenfield v. Fane, 507 U.S. 761 (1993). 6. Farmer v. Mount Vernon Realty, Inc., 720 F. Supp. 223 (D.D.C. 1989). 7. Fla. Bar v. Went For It, 515 U.S. 618 (1995). 8. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). 9. Green v. Montgomery County, 784 F. Supp. 841 (M.D. Ala. 1992). 10. Ill. St. Bar Ass n Op. 96-10 (1997). 11. Kubin v. Miller, 801 F. Supp. 1101 (S.D.N.Y. 1992). 12. Kurtenbach v. TeKippe, 260 N.W.2d 53 (Iowa 1977). 13. Moen v. Thomas, 682 N.W.2d 738 (N.D. 2004). 14. Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978) 15. Peel v. Atty. Registration & Disciplinary Comm n, 496 U.S. 91 (1990). 16. Phila. Bar Ass n Prof l Guidance Comm., Op. 98-6 (1998). 17. Public Citizen, Inc. v. La. Atty. Disciplinary Bd., 632 F.3d 212 (5th. Cir. 2011). 18. Togstad v. Vesely, Otto, Miller, & O Keefe, 291 N.W.2d 686 (Minn. 1980). 19. Utah St. Bar Ethics Advisory Opinion Comm., Op. 96-12 (1997). 20. Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626 (1985). 14