Joe Alfred Izen, Jr. v. Commission for Lawyer Discipline

Opinion issued May 28, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-01114-CV

JOE ALFRED IZEN JR., Appellant

V.

COMMISSION FOR LAWYER DISCIPLINE, Appellee

On Appeal from 129th District Court

Harris County, Texas

Trial Court Cause No. 2004-41123

DISSENTING OPINION

I respectfully dissent. I would hold that the interpretation and application in

this case by the State Bar of Texas Lawyer Advertisement and Solicitation Review

Committee (Advertising Review Committee or Committee) and appellee

Commission for Lawyer Discipline (Commission) of former Texas Disciplinary Rule

of Professional Conduct 7.07, governing "Filing Requirements for Public

Advertisements and Written, Recorded, Electronic, or Other Digital Solicitations," (1)

violated appellant Joe Alfred Izen Jr.'s fundamental constitutional right to due

process of law under the Fifth and Fourteenth Amendments to the United States

Constitution and article 1, section 19 of the Texas Constitution. (2) I would vacate the

judgment of the district court in favor of the Commission and render judgment that

the proceedings against Izen be dismissed. (3)

BACKGROUND Former Texas Disciplinary Rule 7.07(a) provided that, except as provided by

paragraph (d) of the Rule, a lawyer must file with the Advertising Review

Committee a copy of the written solicitation communication and a check or money

order payable to the State Bar of Texas for the fee set by the Board of Directors to

defray the expense of enforcing the rules related to such solicitations. Tex.

Disciplinary R. Prof'l Conduct 7.07, reprinted in Tex. Gov't Code Ann., tit.

2, subtit. G, app. A (Vernon 2005) (hereinafter referred to as former Rule 7.07),

current version reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon

Supp. 2009). (4)

Former Rule 7.07(b) further required that, except as provided by paragraph

(d), the lawyer must file with the Advertising and Review Committee for review on

or before the date of its first dissemination in the public media,"(1) a copy of the

advertisement in the form in which it appears or is or will be disseminated . . . ; (2) a

production script of the advertisement . . . if the advertisement is in or will be in a

form in which the advertised message is not fully revealed by a print copy or

photograph; (3) a statement of when and where the advertisement has been, is , or

will be used; and (4) a check or money order payable to the State Bar of Texas for

the fee set by the Board of Directors. Id. at 7.07(b). (5)

Former Rule 7.07(c) was a "safe harbor" provision. (6) It provided that a lawyer

could "secure an advance advisory opinion concerning compliance of a contemplated

solicitation communication or advertisement" by "submit[ting] to the Lawyer

Advertisement and Solicitation Review Committee, not less than thirty (30) days

prior to the date of first dissemination, the material specified in paragraph (a) or (b)

of this Rule, including the required fee." Id . at 7.07(c). It stated that "[a]n advisory

opinion of the Lawyer Advertisement and Solicitation Review Committee of

noncompliance is not binding in a disciplinary proceeding or disciplinary action but

a finding of compliance is binding in favor of the submitting lawyer if the

representations, statements, materials, facts and written assurances received in

connection therewith are true and are not misleading." Id. It warned that "[t]he

finding constitutes admissible evidence if offered by a party." Id.

Former Rule 7.07(c) set out a detailed list of exceptions to the filing

requirements of paragraphs (a) and (b) for which filing was not required, (7) some of

them requiring subjective interpretation. These included (1) "an advertisement in

the public media that contains only part or all of the following information [set out

in subsections (i)-(xii)], provided the information is not false or misleading,"

including, for example, "(xi) any disclosure or statement required by these rules" and

"(xii) any other information specified from time to time in orders promulgated by the

Supreme Court of Texas"; (2) "an advertisement in the public media" that meets

enumerated specifications (i) and (ii); (3) "a listing or entry in a regularly published

law list"; (4) announcement cards stating changes to a firm "or a tombstone

professional card"; (5) a newsletter satisfying enumerated restrictions (i)-(iii);

(6) written solicitation communications"not motivated by or concerned with a

particular past occurrence or event or a particular series of past occurrences or

events, and also . . . not motivated by or concerned with the prospective client's

specific existing legal problem of which the lawyer is [aware]"; (7) written

solicitations whose use to secure professional employment was "not significantly

motived by a desire for, or by the possibility of obtaining, pecuniary gain"; and (8)

written solicitations "requested by the prospective client." Id . at 7.07(d).

Former Rule 7.07(e) provided, "If requested by the Lawyer Advertisement and

Solicitation Review Committee, a lawyer shall promptly submit information to

substantiate statements or representations made or implied in any advertisement in

the public media and/or written solicitation." Id . at 7.07(e). (8)

The comments to former Rule 7.07 explained (and, as slightly amended, still

explain) the State Bar's construction and administration of the rule, including the

filing requirements, the State Bar's procedures for applying the rule, and the

operation and extent of the "safe harbor" provision in former section 7.07(c).

Comment 2 to former Rule 7.07 stated:

2. Copies of non-exempt written solicitations or advertisements in

public media must be provided to the Advertising Review Committee

of the State Bar of Texas either in advance or concurrently with

dissemination, together with the fee required by the State Bar of Texas

Board of Directors. Presumably, the Advertising Review Committee

will report to the appropriate grievance committee any lawyer whom it

finds from the reviewed products has disseminated an advertisement in

the public media or written solicitation communication that violates

Rules 7.02, 7.03, 7.04, or 7.05, or, at a minimum, any lawyer whose

violation raises a substantial question as to that lawyer's honesty,

trustworthiness, or fitness as a lawyer in other respects. See Rule

8.03(a). (9)

Former Tex. Disciplinary R. Prof'l Conduct 7.07 cmt. 2.

Comment 4 to Rule 707 provided:

4. A lawyer wishing to do so may secure an advisory opinion from

the Advertising Review Committee concerning any proposed

advertisement in the public media or any written solicitation in advance

of its first use or mailing by complying with Rule 7.07(c). This

procedure is intended as a service to those lawyers who want to resolve

any possible doubts about their proposed advertisements' or written

solicitations' compliance with these Rules before utilizing them. Its use

is purely optional. . . .

Id . at 7.07 cmt. 4. Comment 4 further stated that advance clearance was not required

and that a finding of noncompliance by the Advertising Review Committee was not

binding in a disciplinary proceeding, but a finding of compliance was binding, so

long as the lawyer's presentation to the Committee in connection with the advisory

opinion "is true and not misleading." Id .

Comment 5 set out the State Bar's administrative procedure for evaluating

filings under former Rule 7.07, including requests for advisory opinions. It stated

that, "[u]nder its Internal Rules and Operating Procedures, the Advertising Review

Committee is to complete its evaluations no later than 25 days after the date of

receipt of a filing." Id . at 7.07 cmt. 5. It continued:

The only way that the Committee can extend that review period is to:

(1) determine that there is reasonable doubt whether the advertisement

or written solicitation communication complies with these Rules; (2)

conclude that further examination is warranted but cannot be completed

within the 25-day period; and (3) advise the lawyer of those

determinations in writing within that 25-day period. The Committee's

Internal Rules and Operating Procedures also provide that a failure to

send such a communication to the lawyer within the 25-day period

constitutes approval of the advertisement or written solicitation

communication. Consequently, if an attorney submits an advertisement

in the public media or written solicitation communication to the

Committee for advance approval not less than 30 days prior to the date

of first dissemination as required by these Rules, the attorney will

receive an assessment of that advertisement or communication before

the date of its first intended use.

Id . at 7.07 cmt. 5.

In January, 2003, the Advertising Review Committee sent a letter to Izen

concerning an advertisement that had appeared in a Brady, Texas Yellow Pages

telephone directory. The letter notified Izen that the Brady advertisement had not

been submitted for review as required by the Texas Disciplinary Rules of

Professional Conduct. The letter stated, in relevant part:

It has come to the attention of the staff of the Advertising Review

Department that you or your firm has disseminated either a public

media advertisement or a written communication in violation of Part 7

of the Texas Disciplinary Rules of Professional Conduct. A copy of the

ad or writing in question is attached.

Section 7.07 of the Texas Disciplinary Rules of Professional Conduct

outlines the filing requirements for advertisements and written

solicitations. Most ads and written solicitations are required by Rules

7.07(a) or (b) to be filed with the Advertising Review Committee upon

first dissemination. There are certain exemptions to the filing

requirements which are delineated in Rule 7.07(d). Ads and writings

exempt under 7.07(d) do not have to be filed but must still comply with

all other applicable provisions of Part 7. Ads and writings not exempt

under 7.07(d) must meet the filing requirements of 7.07(a) and (b) and

must also comply with all other applicable provisions of Part 7.

The letter advised Izen that "if an ad or writing is non-exempt, the failure to

file such ad or writing with the Committee is a violation of the advertising rules even

if the ad or writing complies with the rules in all other respects." It informed him

that the Advertising Review Committee "can report to the appropriate grievance

committee any lawyer whom it finds has disseminated an advertisement or writing

that violates any portion of Part 7. However, in an initial effort to handle violations

administratively before reporting an attorney to the grievance system, the Committee

will allow you one opportunity to submit your advertisement or written solicitation

letter for review at this time."

The letter "requested" that Izen "file the attached ad or writing with the

Advertising Review Department," i.e., the Brady directory listing, within twenty (20)

days of his receipt of the letter,

in the form of an official application packet which includes: a copy of

the ad or writing, a completed application form, and a $75.00 filing fee.

In addition, there is a late filing fee of $225.00 assessed to each

advertisement or written solicitation letter that is not timely filed as

required by Rule 7.07(a) or (b) but rather is filed in response to a

certified letter from the Advertising Review Committee. Therefore, in

order for us to accept your application packet for filing, it must be

accompanied by a $75.00 standard filing fee and a $225.00 late filing

fee for a total of $300.00. These fees should be combined into one

check.

The letter reminded Izen that "[t]he rules, filing requirements, and application form

were published in the June 1995 issue of the Texas Bar Journal ," and it enclosed an

application form and the website address at which the form could be found, "[a]s an

accommodation to you." The letter then stated:

If your completed packet is not received in this office by the twentieth

(20th) day following the date of your receipt of this letter, the

Committee will forward this matter to the appropriate grievance

committee for disciplinary action. It is absolutely essential that you

include your unique file number (referenced above) on all

correspondence pertaining to this matter. The inclusion of this number

will allow us to accurately remove your file from those pending

disciplinary action. Thank you for your cooperation.

A copy of Izen's advertisement in the Brady directory was attached to the

Committee's letter.

In response to the Committee's letter, Izen submitted an application for review

of the Brady directory listing, along with the $300 filing fee. During its review of

the Brady advertisement, the Committee sua sponte reviewed the two websites used

by Izen, but it did not notify Izen that it had broadened the scope of its investigation

into other advertisements and other potential rule violations.

During the course of its review, the Committee noted items in the Brady

advertisement and on the websites that it determined violated various State Bar Rules

concerning advertisements. However, it did not notify Izen of its determinations,

violating the provisions in its own Internal Operating Procedures (I.O.P.s) that

required it "to complete its evaluations no later than 25 days after the date of receipt

of a filing" and that further provided that "[t]he only way that the Committee can

extend that review period is to: (1) determine that there is reasonable doubt whether

the advertisement or written solicitation communication complies with these Rules;

(2) conclude that further examination is warranted but cannot be completed within

the 25-day period; and (3) advise the lawyer of those determinations in writing

within that 25-day period." Former Tex. Disciplinary R. Prof'l Conduct 7.07

cmt. 5. Instead, the Committee referred both the Brady Yellow Pages advertisement

and the websites to the Commission for the initiation of disciplinary proceedings for

violations of Rule 7.07 and all the rules it had determined that Izen's advertisements

violated.

The Committee's action in referring Izen's Yellow Pages advertisement and

websites to the Commission for prosecution without notice of the result of its review

of the Brady Yellow Pages ad, and without notice that it had broadened its

investigation to include Izen's websites and other potential rule violations beyond

the violation of former Rule 7.07 referenced in its January 2003 letter, also violated

the provision in its I.O.P.s that a failure to send a communication regarding the result

of the Committee's review to the lawyer within the 25-day period "constitutes

approval of the advertisement or written solicitation communication." Id . And it

belied the State Bar's representation in the Comment to Rule 7.07 that,

"[c]onsequently, if an attorney submits an advertisement in the public media or

written solicitation communication to the Committee for advance approval not less

than 30 days prior to the date of first dissemination as required by these Rules, the

attorney will receive an assessment of that advertisement or communication before

the date of its first intended use." Id.

The Commission--like the Committee, an arm of the State Bar--filed a

petition in district court alleging that Izen had violated Texas Disciplinary Rules of

Professional Conduct 7.01(a), 7.01(e), 7.02(a)(2), 7.04(b)(3), 7.04(j), 7.07(b),

7.04(e), and 5.03(b)(1). (10) The disciplinary rules the Commission claimed Izen had

violated contained a number of restrictions on attorney advertising beyond those set

out or referenced in Rule 7.07, of whose violation he had been notified. (11)

The Commission claimed that Izen had engaged in false and deceptive

advertising by "constructively authorizing" the Brady directory listing and by failing

to seek approval of the ad in writing before publishing it in the Brady Yellow Pages.

It then expanded its complaint to include the contents of the two websites owned and

disseminated by Izen, and it accused him of misleading and/or defrauding the public

by stating he was licensed to practice before the Supreme Court of the United States

and various other federal courts on the ground that the right to practice before a court

is not a "license"; by failing to place the required disclaimers "not board certified"

in a conspicuous place in the two websites; by comparing his legal services to other

attorneys in a false and misleading manner by stating he was considered by his

clients "[t]o be a highly proficient attorney with few peers in the legal profession

when it comes to a committed defense of those he represents" without proof of this

statement by "verifiable and objective data"; and by practicing law under a trade

name, specifically "Texas Legal Services," based on the Brady Yellow Pages ad and

the wording of his "divorceintexas" website.

Izen responded that the Committee and the Commission had denied him

administrative due process and violated their own rules and regulations by failing to

provide him an opportunity for review even though it had demanded, was paid, and

accepted and retained the late fees it solicited. He also responded that he had

changed the Brady Yellow Pages ad when he did not hear from the Committee. He

denied authorizing the ad in the form in which it was printed and claimed that, once

he discovered the errors, he disconnected the telephone line to the Brady office and

refused to accept any clients from the telephone number. Izen contended, and the

Committee and the Commission admitted, that he had the right to practice before the

United States Supreme Court and all federal district courts and courts of appeal listed

in his websites. He asserted that no "legal services" were offered to the public

through the "divorceintexas" website, that the website only promoted and sold legal

books and forms, that his competitors were publishers Nolo Press and Parsons

Technology, and that the activity advertised on the website was exempted from the

Texas definition of the practice of law. Finally, he argued that the opinions he

attributed to his clients in his advertisements were supported by his participation in

recently reported tax decisions and the opinions of his fellow practitioners.

Following trial to a jury, the district court entered judgment specifically

reciting that the jury had found violations of Rules 7.01(a), 7.01(e), 7.02(a)(2),

7.04(b)(3), 7.04(e), 7.04(j), 7.07(b), and 5.03(b)(1) and stating, "The Court further

finds and concludes that the proper discipline of Respondent for each act of

professional misconduct as found in this case is suspension from the practice of

law." The trial court's judgment suspended Izen's license to practice law, probated

for 24 months, and imposed sanctions on him in the form of court costs and

attorney's fees incurred by appellee, the Commission for Lawyer Discipline.

Due Process

In his first issue, Izen contends the judgment of the trial court should be

reversed and judgment rendered in his favor "based on the State Bar Advertising

Review Committee and the Commission for Lawyer Discipline's violation of their

own rules and regulations[,] administrative due process[,] and failure to exhaust

administrative remedies." He contends that the Committee falsely promised him it

would review the Brady Yellow Pages ad if he made an application and paid the fees

and that he could resolve any complaints about the ad informally and avoid the filing

of a formal grievance. He contends he paid the fees demanded and that the

Committee retained his money but refused to review the ad in question and, instead,

made further complaints against him concerning ads other than those initially raised

and filed a grievance against him. Id . He contends that he "had a substantive liberty

and property interest protected by the Fifth Amendment to the United States

Constitution and the Due Process of Law provisions of the Texas Constitution to the

informal resolution of the Committee's Complaint(s) offered at a price by the

Committee's solicitations." Id .

I interpret Izen's complaint to be that he has a fundamental constitutional

property interest in his law license that entitles him to due process before he may be

suspended from the practice of law. I agree that his due process rights under the

Fifth Amendment and the Texas Constitution were violated by the State Bar of Texas

Advertising Review Committee and Commission for Lawyer Discipline's application

to him of the procedures described in former Rule 7.07 of the Texas Disciplinary

Rules of Professional Conduct. I would hold, therefore, that, Rule 7.07, as applied

in this case, is unconstitutional under the Due Process Clause of both the Federal and

Texas Constitutions.

A. Standard of Review

As an agency, a commission like the Commission for Lawyer Discipline "is

a creation of the legislature with no inherent authority and only those powers that are

'expressly conferred upon it.'" Lee v. Tex. Workers' Compensation Comm'n , 272

S.W.3d 806, 813 (Tex. App.--Austin 2008, no pet.) (quoting Public Util. Comm'n

v. City Pub. Serv. Bd. , 53 S.W.3d 310, 316 (Tex. 2001)). Under the Texas State Bar

Act, the power to exercise administrative control over the Texas State Bar, a public

corporation and an administrative agency of the judicial department of government,

resides in the Supreme Court. Tex. Gov't Code Ann. § 81.011 (Vernon 2005). The

Act was promulgated by the Legislature "in aid of the judicial department's powers

under the constitution to regulate the practice of law," and it confers power on the

"Supreme Court of Texas, on behalf of the judicial department," to "exercise

administrative control over the state bar under this chapter." Id . at § 81.011(b), (c);

see also Preamble, Tex. Gov't Code, tit. 2, subtit. G app. A preamble (Vernon

2005) (stating that State Bar Rules are adopted in aid of supreme court's "inherent

power to regulate the practice of law"); Texans Against Censorship, Inc. v. State Bar

of Texas , 888 F. Supp. 1328, 1334 (E.D. Tex. 1995), aff'd 100 F.3d 953 (5th Cir.

1996) (stating that power to regulate practice of law resides in Supreme Court and

derives from both statutory grant of power and Supreme Court's inherent judicial

power). The power to regulate the practice of law is thus an administrative one.

State Bar of Texas v. Gomez , 891 S.W.2d 243, 245 (Tex. 1994). And the actions of

the State Bar of Texas Advertising Review Committee and Lawyers Disciplinary

Commission are undertaken in aid of the Supreme Court's inherent judicial power

to exercise administrative authority to regulate the practice of law. See Tex. Gov't

Code Ann. § 81.011 . The Committee and the Commission are therefore agents of

the state.

Due process is implicated when the state or its agents deprives a person of a

protected liberty or property interest. Board of Regents v. Roth , 408 U.S. 564,

570-71 , 92 S. Ct. 2701, 2706 (1972); Lee , 272 S.W.3d at 817 . Thus, in order to

bring a due process claim, a Texas plaintiff must assert a liberty or property interest

that is protected by the Fourteenth Amendment of the United States Constitution or

article I, section 19 of the Texas Constitution. See Roth , 408 U.S. at 569 , 92 S. Ct.

at 2705-06 (noting "due process appl[ies] only to the deprivation of interests

encompassed by the Fourteenth Amendment's protection of liberty and property");

see also Concerned Cmty. Involved Dev., Inc. v. City of Houston , 209 S.W.3d 666,

671 (Tex. App.--Houston [14th Dist.] 2006, pet. denied) ("The Due Process Clause

is only activated when there is some substantial liberty or property interest which is

deserving of procedural protections."). "To have a property interest in a benefit, a

person clearly must have more than an abstract need or desire for it. He must have

more than a unilateral expectation of it. He must, instead, have a legitimate claim

of entitlement to it." Nat'l Collegiate Athletic Ass'n v. Yeo , 171 S.W.3d 863 , 870

n.19 (Tex. 2005) (quoting Roth , 408 U.S. at 577 , 92 S. Ct. at 2709 ).

An attorney has a constitutionally protected interest in his license to practice

law. See Cleveland v. United States , 531 U.S. 12, 15 , 26 n.4, 121 S. Ct. 365, 368 ,

374 n.4 (2000) (finding property interest requiring due process in video poker

license and stating that "[t]he question whether a state-law right constitutes

'property' or 'rights to property' is a matter of federal law," and"[i]n come contexts,

. . . individuals have constitutionally protected property interests in state-issued

licenses essential to pursuing an occupation or likelihood"); Barry v. Barchi , 443

U.S. 55 , 99 S. Ct. 2642 (1979) (harness racing trainer license); Gershenfeld v.

Justices of the Supreme Court of Pennsylvania , 641 F. Supp. 1419, 1423 (E.D. Pa.

1986) (law license); Statewide Grievance Comm. v. Johnson , 946 A.2d 1256, 1261 ,

108 Conn. App. 74, 81 (Conn. App. Ct. 2008) (holding that license to practice law

is property interest that cannot be suspended without due process, "[i]n part because

such actions are adversary proceedings of a quasi-criminal nature").

When a constitutionally protected property interest is at stake, the courts must

determine what process is due to protect that interest. Roth , 408 U.S. at 571 , 92 S.

Ct. at 2706 ; Lee , 272 S.W.3d at 817 . In so doing, they rely upon a three-pronged

test, "weighing (1) the private interest affected by the state action; (2) the risk of

erroneous deprivation of a constitutionally protected interest under the procedures

used and the likely benefit of any additional procedures; and (3) the government's

interest, including the fiscal and administrative burdens that additional procedural

requirements would entail." Lee , 272 S.W.3d at 817 ; see Mathews v. Eldridge , 424

U.S. 319, 335 , 96 S. Ct. 893, 903 (1976); Univ. of Tex. Med. Sch. v. Than , 901

S.W.2d 926, 930 (Tex. 1995). Due process requires, at a minimum, notice and an

opportunity to be heard at a meaningful time in a meaningful manner. Mathews , 424

U.S. at 333 , 96 S. Ct. at 902 ; Perry v. Del Rio , 67 S.W.3d 85, 92 (Tex. 2001). A

license to practice law constitutes a type of property whose divestment cannot be

affected without affording substantial due process, including the opportunity to be

heard and to confront and cross-examine adverse witnesses. In re Ming , 469 F.2d

1352, 1353 (7th Cir. 1972) (holding that failure to afford hearing prior to issuing

order of suspension based on misdemeanor conviction violated due process).

In In re Ruffalo , the United States Supreme Court held that where an attorney

in state disbarment proceedings had no notice that his employment of a certain

person would be considered a disbarment offense until after both he and that person

had testified at length on all material facts pertaining to that phase of his case, the

absence of fair notice as to the reach of the grievance procedure and the precise

nature of the charges against him deprived the attorney of procedural due process,

even though he was thereafter given several months to respond to the charge. 390

U.S. 544, 550-52 , 88 S. Ct. 1222, 1226 (1968). The court stated that disbarment,

which is designed to protect the public, is a punishment or penalty imposed on the

attorney and, therefore, he is entitled to procedural due process, including notice of

the charge. Id .at 550, 88 S. Ct. at 1226 . Thus, when proceedings for disbarment are

not based on matters occurring in open court in the presence of judges, notice should

be given to the attorney of the charges made and an opportunity afforded him to

explain and defend against them. Id . It held that an attorney is entitled to procedural

due process in disbarment proceedings, including fair notice of the charge. See id .

The Supreme Court specifically observed in Ruffalo that the petitioner had had

no notice that his employment of the employee would be considered a disbarment

offense until after both he and the employee had testified at length on all the material

facts pertaining to that phase of his case. Id . at 550-51, 88 S. Ct. at 1226 . The Court

commented, quoting the dissenting judge in the court below, "Such procedural

violation of due process would never pass muster in any normal civil or criminal

litigation." Id . at 551, 88 S. Ct. at 1226 . It stated:

These are adversary proceedings of a quasi-criminal nature. The charge

must be known before the proceedings commence. They become a trap

when, after they are underway, the charges are amended on the basis of

testimony of the accused. He can then be given no opportunity to

expunge the earlier statements and start afresh.

Id . (internal citations omitted).

The Court specifically noted that the state and local bar associations that filed

amici briefs had argued that there was no due process violation because the state

disciplinary board had given Ruffalo several months to respond to the charge. Id .

at 551 n.4, 88 S. Ct. at 1226 n.4. The Court disagreed, stating,

This argument overlooks the fact that serious prejudice to petitioner may well

have occurred because of the content of the original 12 specifications of

misconduct. He may well have been lulled 'into a false sense of security'

(Bouie v. City of Columbia, 378 U.S. 347, 352 , 84 S. Ct. 1697, 1702 , 12 L.

Ed. 2d 894 ) that he could rebut charges Nos. 4 and 5 by proof that [the

employee] was his investigator rather than a solicitor of clients. In that

posture he had 'no reason even to suspect' (ibid.) that in doing so he would

be, by his own testimony, irrevocably assuring his disbarment under charges

not yet made.

Id . The Court held, "This absence of fair notice as to the reach of the grievance

procedure and the precise nature of the charges deprived petitioner of procedural due

process." Id . at 552, 88 S. Ct. at 1226 .

B. Analysis

Izen asserts the letter from the Committee creates an entitlement to "an initial

effort to handle violations administratively before reporting an attorney to the

grievance system." He contends the letter is a mutually explicit understanding to

reach "informal resolution of any [c]omplaint concerning Izen's ads, without a filing

of a formal grievance" or "resolve any potential grievance informally." Specifically,

he states, "The Committee failed to follow the very procedures which it outlined in

its letters [sic]: (1) pay a fee, (2) apply for a review of the ad, and (3) resolve any

potential grievance informally." I agree.

In my view, this case is virtually on all fours with Ruffalo . The Committee's

letter appeared to extend to Izen the protections of the safe harbor in former Rule

7.07(c), but, in fact, it did not. Instead, as with the notice to Ruffalo, which cited

only the "original 12 specifications of misconduct," the Committee's letters cited

only to Izen's violation of former Rule 7.07, consisting of his publishing the Brady

Yellow Pages ad without filing it with the Committee. Furthermore, "in an initial

effort to handle violations administratively before reporting an attorney to the

grievance system," the letter specifically offered him "one opportunity to submit

your advertisement or written solicitation letter for review at this time," as provided

in the safe harbor rule, former Rule 7.07(c), upon his paying the filing fee and late

fee, which he did. Thus, like Ruffalo, Izen "may well have been lulled 'into a false

sense of security'" that he could rebut the Committee's charges against him in

accordance with the administrative procedures of the Committee as set out in

Comments 4 and 5 to the Rule in the Texas Disciplinary Rules of Professional

Conduct. Ruffalo , 390 U.S. at 551 , 88 S. Ct. at 1226 (quoting Bouie , 378 U.S. at

352 , 84 S. Ct. at 1702 ); see former Tex. Disciplinary R. Prof'l Conduct 7.07

cmts. 4-5.

After receiving the January 2003 letter from the Advertising Review

Committee and having apprised himself of the provisions of former Rule 7.07(c),

Izen, like Ruffalo, "had 'no reason even to suspect' . . . that in [responding to the

Committee's offer] he would be, by his own testimony, irrevocably assuring his

[suspension] under charges not yet made." Ruffalo , 389 U.S. at 551 n.4, 88 S. Ct. at

1226 n.4. Nor had Izen any reason to suspect that, by coming within the sights of

the Advertising Review Committee, his Brady Yellow Pages ad had set in motion a

wide-ranging sua sponte State Bar investigation into all of his attorney advertising

under all of its attorney advertising disciplinary rules, an investigation which, by the

State Bar Advertising Review Committee's disregard of its own I.O.P.s, irrevocably

assured the filing of disciplinary proceedings against him by the State Bar's

Disciplinary Commission on charges of which he had been given no notice and

which he had no opportunity to cure, either by attempting to comply--e.g., by

disconnecting the Brady office's telephone and refusing business from the Yellow

Pages ad (which he had done as a cautionary measure on failing to hear from the

Committee)--or by filing a request for advisory review of all of his advertising,

including his websites (one of which only sold legal books and forms) or filing a suit

for a declaratory judgment on the State Bar's (unrevealed) determinations.

I would hold that by offering Izen the protections of former Rule 7.07(c) in

exchange for the filing fee and late fees solicited and paid, and then by failing to

follow its own I.O.P.s and extend to him the protections expressly set out in former

Rule 7.07(c) and the State Bar's Comments 4 and 5 to Rule 7.07, including the

opportunity to cure, and by instead broadening its sua sponte investigation to all of

Izen's advertising under all of the advertising rules on its own initiative and without

notice to him and then filing and prosecuting disciplinary proceedings seeking the

suspension of his license to practice law, the State Bar of Texas, through its

Advertising Review Committee and Commission for Lawyer Discipline, plainly

violated not only the Committee's own administrative procedures but also Izen's

constitutional due process rights, rendering the Committee's and the Commission's

interpretation and application of former Rule 7.07 to Izen unconstitutional under the

Due Process Clause of the Fourteenth Amendment to the United States Constitution

and article 1, section 19 of the Texas Constitution. See Ruffalo , 390 U.S. at 550-52 ,

88 S. Ct. at 1226 (holding that absence of fair notice as to reach of grievance

procedure and precise nature of charges against him in state disbarment proceeding

deprived attorney of procedural due process).

Indeed, the State Bar's interpretation and application of former Rule 7.07 to

Izen calls into question not only the constitutionality of that rule under the

Fourteenth Amendment and article 1, section 19, but also under the First

Amendment. Upon the adoption of the Texas Supreme Court's Order of November

15, 1994, amending all of Part VII of the Disciplinary Rules of Professional

Conduct, the amended Rules, including former Rules 7.01, 7.02, 7.04, and 7.07 at

issue in this suit, were challenged in Texans Against Censorship, Inc. v. State Bar

of Texas. 888 F. Supp. 1328 (E.D. Tex. 1995). Each was held not to infringe the

First Amendment's protection of commercial speech. Id . In addition, however,

former Rule 7.07 was specifically challenged in that suit as violating the

constitutional prohibition against prior restraint under the First Amendment. See id.

at 1365-68 .

The federal district court in Texans Against Censorship interpreted former

Rule 7.07(c) as providing a safe harbor against the unconstitutional application of

the advertising rules to attorneys--an interpretation directly opposite to that of the

Advertising Review Committee and the Commission for Lawyer Discipline in this

case--and it rested its conclusion that former Rule 7.07 did not violate the

prohibition against prior restraint of free speech under the First Amendment solely

on its interpretation of former section 7.07(c) as providing a safe harbor against

unconstitutional prior restraint of speech by the State Bar. See id . at 1365-68. The

State Bar's contrary interpretation of former Rule 7.07(c) in this case as not

providing a safe harbor against State Bar disciplinary actions to suspend an

attorney's license, and therefore as not requiring notice and an opportunity to cure

before the filing of disciplinary action by the State Bar, thus not only calls into

question the constitutionality of Rule 7.07 under the Fourteenth Amendment and

article 1, section 19 of the Texas Constitution, but also calls into question the

rationale upon which the federal district court held in Texans Against Censorship

that former Rule 7.07 did not violate the First Amendment.

In reaching its conclusion that former Rule 7.07 did not place an

unconstitutional prior restraint on commercial speech, the federal district court in

Texans Against Censorship distinguished Bantam Books, Inc. v. Sullivan , 372 U.S.

58 , 83 S. Ct. 631 (1963), as inapplicable, given the probable future interpretation of

Rule 7.07(c) by the Texas State Bar Advertising Review Committee. In Bantam

Books , the United States Supreme Court had held that the practices of a state

commission charged with educating the public about obscene and indecent

publications amounted to an unconstitutional system of informal censorship, and

therefore a prohibited prior restraint on the constitutional right to freedom of

commercial speech because, even though the commission had no power to prohibit

book sellers or publishers from distributing books it found to be objectionable, it

notified them that it had found certain publications objectionable, that a list of those

publications had been provided to local law enforcement officials, and that

cooperation from the distributor or publisher would obviate the need for prosecution,

causing the publishers and distributors to remove the publications from circulation.

Texans Against Censorship , 888 F. Supp. at 1367 (citing Bantam Books , 372 U.S.

at 59-63 , 83 S. Ct. at 633-35 ).

The district court in Texans Against Censorship pointed out that, in Bantam

Books , the Supreme Court had stated, "Where such consultation is genuinely

undertaken with the purpose of aiding the distributor to comply with such laws and

avoid prosecution under them, it need not retard the full enjoyment of First

Amendment Freedoms." Id . (citing Bantam Books , 372 U.S. at 72 , 83 S. Ct. at 640 ).

The district court then stated, with respect to its own review of former Rule 7.07(c)

of the Texas Disciplinary Rules of Professional Conduct:

No evidence has been presented here to show even a likelihood that the

Review Committee will include coercive or intimidating statements in

its advance advisory opinions. On the contrary, amended rule 7.07(c)

appears to contemplate that the Review Committee will simply

determine whether an advertisement or solicitation communication

submitted for an advance advisory opinion complies with the Texas

rules, and state the reasons for such finding. It appears, then, that the

advance opinion process is "genuinely undertaken with the purpose of

aiding [lawyers] to comply" with the Texas rules , id . at 72, 83 S. Ct. at

640 , and is thus not a prior restraint on speech .

Texans Against Censorship , 888 F.Supp. at 1368 (emphasis added).

Unhappily, the federal court's benign prognostication of the way in which the

State Bar of Texas's Advertising Review Committee and Commission for Lawyer

Discipline would interpret and apply the provision in section 7.07(c) that the federal

court interpreted as a safe harbor has not been borne out by events. True, the

Committee and the Commission have not interpreted Rule 7.07 in a way that acts as

a prior restraint on free speech. They have, instead, in this case, gone far beyond

interpreting Rule 7.07 as permitting the Committee to notify an attorney in advance

of publication that it finds an advertisement to be false and misleading and thus to

restrain its publication. Rather, having solicited a fee for its review of the Brady

Yellow Pages advertisement with the lure of a safe harbor, and without notice to Izen

that it had determined that the publication violated the Disciplinary Rules of

Professional Conduct in a number of ways, the Committee initiated sua sponte an

investigation of all of Izen's advertising, seeking violations under all the advertising

rules; it determined that a number of rules had been violated; and it decided not to

follow its stated internal operating proceedures and not to permit him an opportunity

to cure any of the violations it had discovered. Instead, the Advertising Review

Committee notified the Commission of its findings so that disciplinary proceedings

could be initiated against him on all violations determined by the Committee to have

occurred. These actions by the Committee and the initiation of disciplinary

proceedings by the Committee denied Izen both fair notice as to the reach of the

grievance procedure and the precise nature of the charges against him, and an

opportunity to be heard and to cure any perceived violation or to question any such

determination in declaratory judgment proceedings in advance of the State Bar's

initiation of proceedings seeking the suspension of his license to practice law.

In its brief on appeal, the State expresses its understanding of Rule 7.07(c) as

follows:

In his first issue, Izen claims that his due process rights have

been violated because he possessed a protected liberty and property

interest in the informal resolution of his violations of the disciplinary

rules. Izen bases his claim on a letter he received from the State Bar's

Advertising Review Committee (ARC), a letter which he unreasonably

interpreted as offering him the opportunity to avoid disciplinary action

for multiple advertising violations by paying a $225.00 fee.

Izen's first issue is without merit. Izen's interest in avoiding

discipline did not constitute a legitimate claim of entitlement protected

by the due process clause. At most, Izen possessed an expectancy that

no formal action would be taken, and his expectancy resulted from his

own misunderstanding of the disciplinary rules and the letter he

received from ARC. His unreasonable expectation that, simply by

paying a $225.00 fee, he could avoid disciplinary action no matter how

egregious his violations did not constitute an interest protected by the

constitution or other law.

The understanding of the purpose of former Rule 7.07(c) evinced by the

Committee and the Commission in this case is the exact opposite of the federal

district court's understanding of the purpose of former Rule 7.07(c) as providing a

safe harbor from prosecution and therefore as preventing the unconstitutionality of

the Texas State Bar lawyer advertising rules, namely that Rule 7.07(c) offered

"consultation . . . genuinely undertaken with the purpose of aiding [lawyers] to

comply with such laws and avoid prosecution under them." Texans Against

Censorship , 888 F. Supp. at 1367 (quoting Bantam Books , 372 U.S. at 72 , 83 S. Ct.

at 640 ). It is also the exact opposite of the interpretation of the type of restriction of

free speech that "need not retard the full enjoyment of First Amendment Freedoms."

Id . It is the exact opposite of the way the United States Supreme Court interpreted

the due process fair notice requirements of the Fourteenth Amendment in Ruffalo .

And it is the exact opposite of the way I too would interpret former Rule 7.07(c) and

its protections.

It is inconceivable to me that Texas Disciplinary Rule of Professional Conduct

7.07, as interpreted and applied in this case by the State Bar of Texas Advertising

Review Committee and appellee the Commission for Lawyer Discipline could pass

constitutional muster under either the Due Process Clause of the Fourteenth

Amendment to the United States Constitution or article 1, section 19 of the Texas

Constitution, and I would hold that it does not.

Conclusion

I would hold that former Texas Disciplinary Rule of Professional Conduct

7.07 was unconstitutionally applied to Izen in deprivation of his right to due process

of law under the United States and Texas Constitutions and that this constitutional

violation tainted all of the charges against him in this case. I would, therefore,

vacate the judgment of the trial court and render judgment that the proceedings

against Izen be dismissed.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Alcala, and Hanks.

Justice Keyes dissenting.

1. Tex. Disciplinary R. Prof'l Conduct 7.07, reprinted in Tex. Gov't Code Ann.,

tit. 2, subtit. G, app. A (Vernon 2005) (hereinafter referred to as former Rule 7.07),

current version reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon

Supp. 2009).

2. Article 1, section 19 provides:

No citizen of this State shall be deprived of life, liberty, property,

privileges or immunities, or in any manner disfranchised, except y the

due course of the law of the land.

Tex. Const. art. 1, § 19.

3. This case arose in January 2003. Therefore, the Disciplinary Rules of Professional

Conduct at issue in this appeal are those in effect in 2003. The disciplinary rules were

amended effective June 1, 2005, but Izen's constitutional complaint is not mooted by

the amendments to the disciplinary rules. The rules set out and addressed here are the

former rules, with citations to parallel passages in the current rules.

4.

Former Rule 7.07 provided, in relevant part:

(a) Except as provided in paragraph (d) of this Rule, a lawyer shall file

with the Lawyer Advertisement and Solicitation Review Committee of

the State Bar of Texas, either before or concurrently with the mailing

or sending of a written solicitation communication:

(1) a copy of the written solicitation communication being sent

or to be sent to one or more prospective clients for the purpose

of obtaining professional employment . . .;

(2) a check or money order payable to the State Bar of Texas

for the fee set by the Board of Directors. Such fee shall be for

the sole purpose of defraying the expense of enforcing the rules

related to such solicitations.

(b) Except as provided in paragraph (d) of this Rule, a lawyer shall file

with the Lawyer Advertisement and Solicitation Review Committee of

the State Bar of Texas, either before or concurrently with the first

dissemination of an advertisement in the public media, a copy of that

advertisement. The filing shall include:

(1) a copy of the advertisement in the form in which it appears

or is or will be disseminated, such as a videotape, an audiotape,

a print copy, or a photograph of outdoor advertising;

(2) a production script of the advertisement . . . if the

advertisement is in or will be in a form in which the advertised

message is not fully revealed by a print copy or photograph;

(3) a statement of when and where the advertisement has been,

is , or will be used; and

(4) a check or money order payable to the State Bar of Texas

for the fee set by the Board of Directors. Such fee shall be for

the sole purpose of defraying the expense of enforcing the rules

related to such advertisements.

(c) A lawyer who desires to secure an advance advisory opinion

concerning compliance of a contemplated solicitation communication

or advertisement may submit to the Lawyer Advertisement and

Solicitation Review Committee, not less than thirty (30) days prior to

the date of first dissemination, the material specified in paragraph (a)

or (b) of this Rule, including the required fee. . . . An advisory opinion

of the Lawyer Advertisement and Solicitation Review Committee of

noncompliance is not binding in a disciplinary proceeding or

disciplinary action but a finding of compliance is binding in favor of

the submitting lawyer if the representations, statements, materials, facts

and written assurances received in connection therewith are true and are

not misleading. The finding constitutes admissible evidence if offered

by a party.

Former Tex. Disciplinary R. Prof'l Conduct 7.07.

Section (d) of the current Rule 7.07 states, with respect to the effect of the

findings of the Advertising Review Committee in response to a request for an

advisory opinion:

If a lawyer submits an advertisement or solicitation communication for

pre-approval, a finding of noncompliance by the Advertising Review

Committee is not binding in a disciplinary proceeding or disciplinary

action but a finding of compliance is binding in favor of the submitting

lawyer as to all materials actually submitted for pre-approval if the

representations, statements, materials, facts and written assurances

received in connection therewith are true and are not misleading. The

finding of compliance constitutes admissible evidence if offered by a

party.

Tex. Disciplinary R. Prof'l Conduct 7.07(c), reprinted in Tex. Gov't Code

Ann., tit. 2, subtit. G, app. A (Vernon Supp. 2009).

5. Current Rule 7.07 requires the submission of all lawyer advertising in whatever form.

See Tex. Disciplinary R. Prof'l Conduct 7.07(a).

6. Current Rule 7.07 adds a new section (c) that is specific to websites and contains

essentially the same strictures as current section (b), which encompasses all other

forms of advertisement. Advisory opinions, formerly addressed in section 7.07(c), are

now addressed in section 7.07(d). See Tex. Disciplinary R. Prof'l Conduct 7.07.

Former section (d), with amendments, is now section (e). Id.

7. Current rule 7.07(d)(1) is identical to former section 7.07(c)(1), except for the

addition of a proviso that states,"provided those materials comply with Rule 7.02(a)

through (c) and, where applicable, Rule 7.04(a) through (c)." See Tex. Disciplinary

R. Prof'l Conduct 7.07(d)(1).

8. Former section (e) is now section (f), and is the same except for additional language that

restricts the application of the section to representations "by which the lawyer seeks paid

professional employment." Tex. Disciplinary R. Prof'l Conduct 7.07(f).

9. The current comment is virtually identical except for clarifying that it applies to websites

as well as written solicitations. Both current and former Rule 8.03(a), referenced in the

comment, require a lawyer who knows "that another lawyer has committed a violation of

applicable rules of professional conduct that raises a substantial question as to that lawyer's

honesty, trustworthiness or fitness as a lawyer in other respects" to "inform the appropriate

disciplinary authority." Tex. Disciplinary R. Prof'l Conduct 8.03(a), reprinted in Tex.

Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon 2005).

10. See Tex. Disciplinary R. Prof'l Conduct 5.03(b)(1), 7.01(a), 7.01(e), 7.02(a)(2),

7.04(b)(3), 7.04(j), 7.07(b), and 7.04(e), reprinted in Tex. Gov't code Ann., tit. 2,

subtit. G, app. A (Vernon 2005). The Rules cited are those in effect at the time of

Izen's violations. The Rules have since been amended. For clarity and consistency,

we refer to the former Rules as cited by the parties and recited in the judgment.

11. Former Rule 7.01(a) prohibited a lawyer in private practice from practicing "under a

trade name, a name that is misleading as to the identity of the lawyer or lawyers

practicing under such name, or a firm name containing names other than those of one

or more of the lawyers in the firm," with certain enumerated exceptions. Former Tex.

Disciplinary R. Prof'l Conduct 7.01(a). Former Rule 7.01(e) provided that "[a]

lawyer shall not advertise in the public media or seek professional employment by

written communication under a trade or fictitious name," again with enumerated

exceptions. Id . at 7.01(e). Current Rule 7.01 is virtually identical. See Tex.

Disciplinary R. Prof'l Conduct 7.01.

Former Rule 7.02(a) provided that "[a] lawyer shall not make a false or

misleading communication about the qualifications or the services of any lawyer or

firm." Former Tex. Disciplinary R. Prof'l Conduct 7.02(a). Subsection (a)(2)

defined a communication as "false or misleading if it . . . is likely to create an

unjustified expectation about results the lawyer can achieve, or states or implies that

the lawyer can achieve results by means that violate these rules or other law." Id . at

7.02(a)(2). The current rule elaborates upon this definition, stating that a

communication is false or misleading if it "contains any reference in a public media

advertisement to past successes or results obtained unless" four enumerated criteria

are met, including (i) that the lawyer served as lead counsel or had primary

responsibility for the settlement or verdict, (ii) the amount involved was actually

received by the client, (iii) "the reference is accompanied by adequate information

regarding the nature of the case or matter, and the damages or injuries sustained by

the client," and (iv) "if the gross amount received is stated, the attorney's fees and

litigation expenses withheld from the amount are stated as well." Tex. Disciplinary

R. Prof'l Conduct 7.02(a)(2).

Former Rule 7.04(b)(3) required a lawyer advertising in the public media to

state with respect to each area advertised in which he was not board certified that he

was not or that no designation had been made by the Texas Board of Legal

Specialization in that area. Former Tex. Disciplinary R. Prof'l Conduct

7.04(b)(3). Again the current rule is more complex in requiring that an attorney

in the case of infomercial or comparable presentation, state that the

presentation is an advertisement;

(i) both verbally and in writing at its outset, after any

commercial interruption, and at its conclusion; and

(ii) in writing during any portion of the presentation that

explains how to contact a lawyer or law firm.

Tex. Disciplinary R. Prof'l Conduct 7.04(b)(3).

Former Rule 7.04(e) required, like the current rule, that "[a]ll advertisements

in the public media for a lawyer or firm must be reviewed and approved in writing by

the lawyer or a lawyer in the firm." Former Tex. Disciplinary R. Prof'l Conduct

7.04(e).

Former Rule 7.04(j) required, like the current rule, that "[a] lawyer or firm who

advertises in the public media must disclose the geographic location, by city or town,

of the lawyer's or firm's principal office" and " shall not advertise the existence of

any office other than the principal office" unless the office is staffed by a lawyer at

least three days a week or the advertisement states the days and times a lawyer will

be present at the office or "that meetings with lawyers will be by appointment only."

Id . at 7.04(j).

Former Rule 5.03(b)(1) provides that "a lawyer shall be subject to discipline

for the conduct of [a nonlawyer employed or retained by or associated with a lawyer]

that would be a violation of these rules if engaged in by a lawyer if . . . the lawyer

orders, encourages, or permits the conduct involved." Id . at 5.03.