Amicus Curiae Brief — Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy

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No. 93-639

In The

Supreme Court of the Unit

October Term, 1993

SILVIA S. IBANEZ,

Petitioner,

STATE OF FLORIDA,

DEPARTMENT OF PROFESSIONAL REGULATION,

BOARD OF ACCOUNTANCY,

Respondent.

On Writ Of Certiorari

To The District Court Of Appeal

Of Florida For The First District

BRIEF OF AMICUS CURIAE AMERICAN

ASSOCIATION OF ATTORNEY-CERTIFIED

PUBLIC ACCOUNTANTS, INC. IN

SUPPORT OF PETITIONER

L. Harov_p Levinson*

School of Law,

Vanderbilt University

Nashville, TN 37240

(615) 322-2540

Pur D. Brent

Pour D. Brent,

Professional Corporation

16000 Ventura Blvd.,

Suite 500

Encino, CA 91436

(818) 990-2444

Davin OsTROVE

Ostrove, Krantz & OsTROVE,

A Professional Corporation

5757 Wilshire Blvd.,

Suite 535

Los Angeles, CA 90036

(213) 939-3400

Sypney S. TRAUM

Sypney S. Traum, P.A.

Semet, LICKSTEIN,

MORGENSTERN, BERGER,

FrienD, Brooke &

Gorpon, P.A.

THomas W. McCuttocu 201 Alhambra Ciscie,

THomas W. McCuttocn, P.C. ,

Suite 1200

3003 Summit Tower

Eleven Greenway Plaza

Houston, TX 77046

(713) 961-1099

Coral Gables, FL 33134

(305) 444-1400

Attorneys for amicus curiae,

American Association of

Attorney-Certified Public

Accountants, Inc.

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 442-2831

ESTE ge Sy ft OT ee Oe ee! AEE Nee ee rp -

EN GA at i Stee

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...........ccccccccsceees iv

CONSENT OF THE PARTIES ............-.-.-005-- 1

INTEREST OF AMICUS CURIAE ...............--. 2

SUMMARY OF ARGUMENT.............--.--0+055: 3

EE ide ceesdecraccnecsadessdecennveresers 4

I. THE BOARD VIOLATES IBANEZ’S COMMER-

CIAL SPEECH RIGHTS BY IMPOSING DISCI-

PLINE FOR HER TRUTHFUL AND

VERIFIABLE LISTING OF PROFESSIONAL

EE. a5 cnc eeeo bende eisereseseces 5

A. The Board Misapplies Case Law.......... 6

1. This Court’s cases on commercial

SPOON. ... 2. cece s eer c cece ene cecceees 6

2. Other courts’ cases on title acts....... 7

B. Ibanez’s Truthful and Verifiable Listing of

Credentials Is Not A Representation

Regarding the Regulatory Regime Govern-

ing Her Practice ..........-.0e0eeeeeeeeeee 8

1. Truthful and verifiable, not deceptive.. 9

2. Public identification, not representation

regarding regulatory regime........... )

C. The Board Improperly Bases Its Decision on

Speculation That Ibanez, in the Conduct of

Her Law Practice, May Violate the Board’s

Rules on the Management of Public

Accounting Practices..........-..05+++++5: 11

ll. THE BOARD CHILLS THE FIRST AMEND-

MENT RIGHTS OF ATTORNEY-CPAs AND

OTHER MULTIPLE LICENSEES..............-.. 12

TABLE OF CONTENTS - Continued

Page

The Board Chills the Right of Attorney-CPAs

to List Their Professional Credentials Truth-

i PPT

Bar Regulators and Other States’ Accounting

Regulators Effectively Protect the Public

Interest Without Chilling the First Amend-

ment Rights of Attorney-CPAs.............

1. ABA abandoned its repressive policies

toward CPAs in 1960 ....0csssucuseunne

2. Three states exempt attorneys from

ACCOUNTANCY ACE... ..ccccccccsscnsseuees

3. Accounting regulators in many other

states have reached practical accom-

modations with attorney-CPAs.........

4. Uniform Accountancy Act and Proposed

Rules have attracted new attention to

regulation of attorney-CPAs............

5. Florida position is more repressive than

Uniform Act and Proposed Rules ......

The Board Can Accomplish Its Legitimate

Regulatory Purposes Without Impairing

First Amendment Rights...................

1. Board has power to prohibit deceptive

speech, but has misused that power in

CRIS CBSE... 2.0 ccvessseeeesaenan ten

2. Board's interest in regulating law prac-

tice of CPA is questionable ............

3. Board has avoided any direct test of its

asserted jurisdiction over law practice of

CRA... .ccoscoscesessseseauneeeeeeeenen

TABLE OF CONTENTS - Continued

Page

4. Board has not used rulemaking to clarify

its jurisdiction completely.............. 24

5. Board's rule defining “holding out” was

Ee eee Seenecepcceecccccens 26

D. Board Chills The Rights Of Other Multiple

PCE ca tan eeknecusccccccccece: 26

il. THIS COURT SHOULD MAINTAIN AND

CLARIFY ITS PROTECTION OF COMMER-

ania Sacnceedecccccevccecce 27

A. This Court's Protection of Commercial

Speech Continues to Serve the Public Inter-

PPP CCCCGGRGREGRGSe6eeeccecocccccess 27

This Court Should Maintain the Protection

Of Commercial Speech, and Clarify It to the

Extent Required to Provide Relief to Ibanez 28

eee awa dnccescessesceccessccece 29

TABLE OF AUTHORITIES

Page

Cases

Abramson v. Gonzalez, 949 F.2d 1567 (11th Cir.

SOUEDE » ewhc concncnnduaséendsapens subeeiuheeubeees 7

Accountants’ Society of Virginia v. Bowman, 860 F.2d

ee ee Sh A once cdaedcuneetecshcvudeneioedces 7

Bates v. State Bar of Arizona, 433 U.S. 350 (1977)

sAcbtond es counwadees aheCEGs een tub cebbebieeens 15, 18, 27

Board of Trustees of State University of New York v.

Be FO a ee ae 6

Cenac v. Florida State Board of Accountancy, 399

So.2d 1013 (Fla. Ist Dist. Ct. App. 1981).......... 25

Central Hudson Gas & Elec. Corp. v. Public Service

Comm'n. of New York, 447 U.S. 557 (1980) .......... 6

Dep't. of Professional Regulation, Board of Accoun-

tancy v. Rampell, 621 So.2d 426 (Fla. 1993)......... 23

Edenfield v. Fane, 507 U.S. __, 113 S.Ct. 1792 (1993)

co58 ed bnceenenseesunebansendendeneieannsedarens 5, 6, 23

Friedman v. Rogers, 440 US. 1 (1979) ............... 6, 7

Gandee v. Glaser, 785 F.Supp. 684 (S.D. Ohio 1992)... .. 8

Ibanez v. State Board of Accountancy, Fla. Div. of

Admin. Hearings, Case No. 91-3336R (Jan. 15,

SUPE eS Chch eek eeesdsinedénn Cedsnusenedueeseuneexs: 26

Peel v. Attorney Registration and Disciplinary Com-

mission, 496 U.S. 91 (1990)............02...... 5,6,9

me we RAGS... GS US. BOR CIGGRD. 2... ccccccccescesccss 4

Smith v. California, 336 F.2d 530 (9th Cir. 1964) ....... 7

United States v. DeFusco, 930 F.2d 413 (5th Cir.),

cert. denied, __ U.S.__, 112 S. Ct. 239 (1991) ...... 8

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Calif. Bus. & Prof. Code Sec. 5053 (1990)............ 17

Fla. Stat. Ann. Sec. 473.304(1) (1991) ................ 24

Fla. Stat. Ann. Sec. 473.323(2) (1991) ................ 25

Mich. Comp. L. Ann. Sec. 339.711 (1992)............ 17

Wis. Stat. Ann. Sec. 442.02(8) (1988)................. 17

RuLes

Fla. Admin. Code, Rule 21A-20.011 ................. 25

Fla. Admin. Code, Rule 21A-20.012 ................. 26

OrHerR AUTHORITIES

ABA Model Code of Professional Responsibility,

ES RL ST a? eee Sar e 15

ABA Informal Op. 1248 (1972)...................... 27

ABA Informal Op. 1422 (1978) ................... 14, 27

ABA Informal Op. 83-1497 (1983) ................ 16, 27

ABA, Proceedings of 1980 Mid-Year Meeting, 105

ABA Annual Reports 287 (1985)................. 15, 27

American Association of Attorney-Certified Pub-

lic Accountants, Committee on Cooperation

Between the Professions of Accountancy and

Law, Comments on Uniform Accountancy Act

(1992) and Proposed Rules to Accompany the Act

(1993), 29 THe Arrorney-CPA, No. 5, at 6 (Year

Me WES SabGduLteeCEuHAbGEeCcaediabcacoh Gstsons 20

TABLE OF AUTHORITIES — Continued

American Institute of Accountants, Committee on

Professional Ethics, Official Text, May 8, 1946, 83

rr rr Ns 6 oe eile i ae eet ade

American Institute of Certified Accountants &

National Association of State Boards of Accoun-

tancy, Uniform Accountancy Act (1992), 1 C.C.H.

Accountancy L. Rptr. par. 1031 ...............

American Institute of Certified Public Accoun-

tants & National Association of State Boards of

Accountancy, Proposed Rules to Accompany Uni-

form Accountancy Act, (Exposure Draft, Oct. 1,

PRR RS Pa ies ae BREN. ERS ELIA peg ita BR at Meas

Brent, Philip D., Accounting and Law: Concurrent

Practice Is In the Public Interest, 123 J. Acctcy.,

ee Ms GE Pov cecactaveedaudassavasnwenens

Brent, Philip D., Is the FICPA Playing By the Rules?,

29 THe Arrorney-CPA, No. 2, at 7 (Spring 1993)

FTC, Notice of Consent Decree (American Insti-

tute of Certified Public Accountants), 55 Fed.

en rr, SD vc ones bas ceee ce ene

FTC Staff Comments, In the Matter of Amendments

to the Mississippi Rules of Professional Conduct,

FTC Toway, Jan. 18, 1994, summarized in 9 Law-

YeRS MaANuAt ON ProressionaL Conpuct 414

ERR STEEP OE ER a Ra ES Seeds rape a

Goldberg, Louis S., Dual Practice of Law and

Accountancy: A Lawyer's Paradox, 1966 Duke L. J.

Page

66 fhe

Vii

TABLE OF AUTHORITIES - Continued

Page

Goldberg, Louis S., A Lawyer's Multiple Occupa-

tions, 6 Wake Forest INTRAMURAL L. Rev. 191

SEA StatehUerines er ilbes sapees boned~cse beeeses

Mass. Bar Ass'n. Committee on Professional

Ethics, Op. No. 82-2 (Dec. 1982) ..................

Mich. Bar Committee on Professional and Judicial

ys I MP OEE wove cc cevvscseccesovacecs

New Jersey Advisory Committee on Professional

i Pi Sec cine che dseu eee odeaees<se

New York County Lawyers’ Ass’n. Committee on

Professional Ethics, Answer to Question 388

(1949), 122 N.Y.L.J. 1088 (1949), 89 J. Acctcy. 71

Dihswadde deed ed etwiedueiesesdeusudaue cd se eves

Note, Attorneys Who Are Also Certified Public

Accountants May Properly Practice Both Profes-

sions in the Same Office, 63 Harv. L. Rev. 1457

POU so bkeventavcvesh secducdevkaved shbevetectsscce

Primoff, Morris W., The Dual Practice of Law and

Accounting and the Public Interest (Ph.D. disser-

tation, Calif. Western Univ., 1977, published by

AAA-CPA)

oeeveeveveepeveeeeeeeveeeseeeeeeeeeeeeeeevneeneeee

Texas State Bar Assn. Op. 406 (1983)................

Traum, Sydney S., The Public's Right to Know, 29

THe Arrorney-CPA, No. 1, at 6 (Winter 1993)......

Turman, Lloyd “Buddy” & Kenneth R. Hart, When

You Say You're A CPA, You Must Play By The

Rules . . . All The Rules, 29 THe Attorney-CPA,

No. 1, at 6 (Winter 1993), reprinted from Florida

CPA Today, Oct. 1992, at 8

ee ee eee eee ee ee eeeeeennee

No. 93-639

In The

Supreme Court of the United States

October Term, 1993

SILVIA S. IBANEZ,

Petitioner,

Vv.

STATE OF FLORIDA,

DEPARTMENT OF PROFESSIONAL REGULATION,

BOARD OF ACCOUNTANCY,

Respondent.

On Writ Of Certiorari

To The District Court Of Appeal

Of Florida For The First District

BRIEF OF AMICUS CURIAE AMERICAN

ASSOCIATION OF ATTORNEY-CERTIFIED

PUBLIC ACCOUNTANTS, INC. IN

SUPPORT OF PETITIONER

CONSENT OF THE PARTIES

Petitioner, Silvia S. Ibanez, and Respondent, State of

Florida, Department of Professional Regulation, Board of

Accountancy, have consented to the participation of the

American Association of Attorney-Certified Public

Accountants, Inc. in these proceedings as amicus curiae

in support of Petitioner. Their consents have been filed

with this Court.

INTEREST OF AMICUS CURIAE

The American Association of Attorney-Certified Pub-

lic Accountants, Inc. (“AAA-CPA” or “the Association”)

is a not-for-profit corporation, formed in 1964 and now

headquartered in California, with members located all

over the United States. Every member has been licensed

as both an attorney and a certified public accountant

(“CPA”).

AAA-CPA is dedicated to ensuring that its members

observe the highest professional and ethical standards in

service to their clients and the public. At the same time,

AAA-CPA supports the right of practitioners to disclose

truthful information about their qualifications, and to

engage in the practice of either or both of their profes-

sions.

AAA-CPA is active in advocating the rights of indi-

viduals, such as its members, who are dually licensed

both as attorneys and as CPAs. The Association asserts

the right of these individuals to identify themselves as

being licensed to practice both professions, and to engage

in the practice of either or both, provided these individ-

uals comply with the applicable standards of professional

conduct.

AAA-CPA is in a unique position to appreciate the

differences between the professional duties of attorneys

on the one hand and CPAs on the other. Because of these

differences in professional duties, the state has a legiti-

mate interest in regulating each profession by a distinc-

tive set of standards. These standards are similar in some

respects and different in others. Depending on the nature

of the engagement, dual licensees must comply with one

set of standards, or the other, or both. Dual licensees can

discern and conform to the applicable set of standards, in

much the same way as attorneys engaged in the multi-

state practice of law can discern and conform to the

standards of each applicable jurisdiction.

Although one set of standards governs attorneys and

another set governs CPAs, a single pervasive principle

applies with equal force to the regulation of each profes-

sion: The state should impose no restriction unless

required by the public interest. When the regulation

affects truthful speech, the applicable test is even more

stringent: The state should impose restrictions only in

narrowly defined situations and only in response to a

demonstrated need to protect a substantial public inter-

est.

In the decision in this case, the Florida Board of

Accountancy reprimands Silvia Ibanez for identifying

herself as a CPA and CFP (Certified Financial Planner),

although she is in fact a CPA, a CFP, and an attorney. The

Board's actions violate Ibanez’s First Amendment rights

and endanger the rights of all practitioners who hold

more than one professional license. AAA-CPA supports

the position of Ibanez, in asking this Court to reverse the

judgment of the Florida District Court of Appeal which,

without opinion, affirmed the Board’s decision.

SUMMARY OF ARGUMENT

The Board violates Ibanez’s commercial speech rights

by imposing discipline for her truthful and verifiable

listing of professional credentials. The Board improperly

characterizes Ibanez’s listing of the credential “CPA” as

“deceptive,” although the Board concedes she is licensed

as a certified public accountant. The Board bases its

action on speculation that Ibanez, in the conduct of her

law practice, may violate the Board’s rules on the man-

agement of public accounting practices. By listing her

professional credentials, however, Ibanez makes no repre-

sentation regarding the regulatory regime that applies to

her.

The Board’s action chills the First Amendment rights

of all attorney-CPAs and other individuals who hold

more than one professional license. Experience shows

that the public interest can be effectively protected with-

out impairing First Amendment rights.

This Court should maintain the protection of com-

mercial speech, and clarify it to the extent required to

provide relief to Ibanez.

ARGUMENT

In the decision at issue in this case, the Florida Board

of Accountancy (“the Board”) reprimands Silvia Ibanez

(“Ibanez”) for identifying herself as a Certified Public

Accountant (“CPA”) and a Certified Financial Planner

(“CFP”), although the Board concedes she is a CPA, a

CFP, and an attorney.

This brief of amicus curiae, the American Association

of Attorney-Certified Public Accountants, Inc. (“AAA-

CPA”), focuses on Ibanez’s right to identify herself as a

CPA. By focusing on this issue, the brief avoids needless

overlap with the brief of another amicus curiae which

focuses on Ibanez’s right to identify herself as a CFP.!

The Board improperly characterizes Ibanez’s truthful

and verifiable identification —- as a CPA - as “deceptive,

false and misleading.” This characterization is based only

on the Board’s speculation that Ibanez may violate the

rules which, according to the Board, require her to license

her law firm as a CPA firm, to forego certain forms of

remuneration, and to limit the ownership of the firm to

other CPAs. Joint Appendix (“J.A.”) at 185. By charac-

terizing truth as deception and by imposing discipline on

this basis, the Board impairs Ibanez’s First Amendment

rights and endangers the rights of all practitioners who

hold more than one professional license.

I. THE BOARD VIOLATES IBANEZ’S COMMERCIAL

SPEECH RIGHTS BY IMPOSING DISCIPLINE FOR

HER TRUTHFUL AND VERIFIABLE LISTING OF

PROFESSIONAL CREDENTIALS

In its order reprimanding Ibanez, the Board acknowl-

edges that she is licensed as a CPA. The Board concludes,

! The International Board of Standards and Practices for

Certified Financial Planners, Inc. (IBCFP) filed a brief as amicus

curiae in support of Ibanez’s petition for writ of certiorari.

IBCFP is expected to file an amicus curiae brief on the merits in

support of Ibanez’s right to identify herself truthfully as a CFP.

AAA-CPA joins IBCFP in supporting her right to do so, based

on commercial speech decisions such as Peel v. Attorney Registra-

tion and Disciplinary Commission, 496 U.S. 91 (1990) and Edenfield

v. Fane, 507 U:S. __, 113 S. Ct. 1792 (1993).

however, that her truthful and verifiable identification as

a CPA is “deceptive, false and misleading.” J.A. at 186.

This conclusion violates Ibanez’s First Amendment right

to engage in commercial speech.

A. The Board Misapplies Case Law

The Board’s order cites a number of cases to justify

its action. The Board's reliance on these cases is mis-

placed.

1. This Court’s cases on commercial speech

First, the Board relies on this Court's decisions in Pee!

v. Attorney Registration and Disciplinary Commission, 496

U.S. 91 (1990), Central Hudson Gas & Elec. Corp. v. Public

Service Comm'n. of New York, 447 U.S. 557 (1980), and

Board of Trustees of State University of New York v. Fox, 492

U.S. 469 (1989). For reasons stated in Ibanez’s brief, none

of the above decisions support the Board’s action.

The Board’s decision is further undermined by this

Court’s subsequent decision in Edenfield v. Fane, 507 U.S.

__, 113 S. Ct. 1792 (1993), also discussed in Ibanez’s

brief. To avoid needless overlap, this amicus curiae brief

will not further discuss these cases.

In its Brief in Opposition to Certiorari, the Board

relies also on Friedman v. Rogers, 440 U.S. 1 (1979). The

Board’s reliance on this case is equally erroneous. Fried-

man arose from a prohibition against the use of poten-

tially deceptive trade names. This Court distinguished

trade names from other commercial speech, noting that

trade names have “no intrinsic meaning.” 440 U.S. at 12.

In contrast, Ibanez listed her own name, together with

professional credentials that have a clear meaning and

are in no way deceptive. Accordingly, Friedman provides

no justification for the Board’s decision.

2. Other courts’ cases on title acts

The Board relies also on a number of lower court

decisions arising from statutes described as “title acts,”

which prohibit unlicensed persons from using _profes-

sional titles. J.A. at 181, 184, 189. None of these cases,

however, supports the Board’s position.

The Board relies on Abramson v. Gonzalez, 949 F.2d

1567 (11th Cir. 1992) (state may prohibit unlicensed psy-

chologist from identifying publicly as “licensed psycholo-

gist,” but same individual has First Amendment right to

identify publicly as “psychologist”); Accountants’ Society

of Virginia v. Bowman, 860 F.2d 602 (4th Cir. 1988) (state

may prohibit unlicensed accountant from identifying

publicly as “certified public accountant,” “CPA,” or

“public accountant”); Smith v. California, 336 F.2d 530 (9th

Cir. 1964) (state may prohibit unlicensed engineer from

identifying publicly as “electrical engineer” or “consult-

ing engineer”).

These three cases uphold the right of a state legisla-

ture to prohibit unlicensed persons from using certain

professional titles. That proposition is not disputed in the

present case. None of the cases relied on by the Board

allow the state to prohibit a licensed person from using

her titles. Accordingly, the cases do not support the

Board’s order.

In its Brief in Opposition to Certiorari, the Board

relies on two additional lower court cases: Gandee v.

Glaser, 785 F. Supp. 684 (S.D. Ohio 1992) and United States

v. DeFusco, 930 F.2d 413 (5th Cir.), cert. denied __ U.S.__,

112 S. Ct. 239 (1991). Its reliance on these cases is equally

misplaced. Gandee upheld the right of the state to prohibit

unlicensed persons from identifying themselves as “audi-

ologists,” while DeFusco upheld the right of the United

States to prosecute a person for distributing material that

misled the addressees into believing they had won a

contest. Neither Gandee nor DeFusco pertains in any way

to Ibanez’s right to list her professional credentials truth-

fully.

B. Ibanez’s Truthful and Verifiable Listing of Cre-

dentials Is Not A Representation Regarding the

Regulatory Regime Governing Her Practice

The independent hearing officer who conducted the

trial-type hearing concluded that Ibanez’s listing of her

credentials was not misleading or deceptive. J.A. at 184.

The Board rejected the hearing officer’s recommendation

and concluded, to the contrary, that Ibanez’s listing of her

credentials was “deceptive, false and misleading.” J.A. at

186. In essence, the Board’s explanation for its action has

two components: (1) By publicly identifying herself as a

CPA, Ibanez represents to the public that she will comply

with all of the Board’s rules; and (2) the Board speculates

that Ibanez may violate some of its rules on the manage-

ment of public accounting practices. In the Board’s own

words, J.A. at 185:

Respondent [Ibanez] has, in effect, told the pub-

lic that she is subject to the provisions of Chap-

ter 473 [the Florida Accountancy Law], and the

jurisdiction of the Board of Accountancy when

she believes and acts as though she is not [foot-

note omitted].

1. Truthful and verifiable, not deceptive

The Board’s explanation is untenable. By publicly

identifying herself as a CPA, Ibanez merely represents

that she now holds a valid license which authorizes her to

use that title. Since the Board concedes that she holds a

valid license, the Board has no basis for impairing her

right to identify herself publicly as a CPA, or for charac-

terizing her identification as deceptive. Her public identi-

fication is truthful.

It is also easily verifiable. Any interested person can

consult public records or place a telephone call to the

Board to verify that Ibanez is indeed a CPA, and to

ascertain the legal significance of that license. Ibanez’s

public identification as a CPA is therefore a truthful and

verifiable statement, protected by the First Amendment.

Peel, supra; In re R.M.J., 455 U.S. 191 (1982).

2. Public identification, not representation

regarding regulatory regime

Ibanez’s public identification as an attorney and a

CPA is not a representation regarding the regulatory reg-

ime governing her professional practice. Defining the

appropriate regime may be a complex matter which can-

not feasibly be conveyed by the listing of professional

credentials.

For example, a person licensed as both an attorney

and a CPA obviously may not serve the same client as

both legal counsel and independent auditor, because of

the different professional roles of counsel (as advocate

and adviser) and auditor (as independent examiner). The

dual licensee must therefore decline to accept engage-

ments that would violate this principle, while remaining

free to accept the wide range of other engagements in

which attorney-CPAs may properly and usefully serve

their clients. But the need to decline certain engagements

has no bearing on the right of a person licensed as both

an attorney and a CPA to use these credentials as a means

of public identification. A dual licensee cannot feasibly be

required to describe the need to decline certain engage-

ments when publicly listing professional credentials.

Dual licensees face other issues, some of them more

complex. One source of complexity arises because in Flor-

ida, as in all other states, attorneys are regulated by the

state Supreme Court while CPAs are regulated by the

Board, an administrative agency. In the event of conflict

between these two sources of regulation, issues may arise

under the separation of powers provision of the state

constitution. The potential emergence of these issues,

however, has no bearing on Ibanez’s right to identify

herself truthfully as an attorney and a CPA. And in listing

her professional credentials, Ibanez cannot feasibly be

required to describe or discuss issues such as separation

of powers.

C. The Board Improperly Bases Its Decision on

Speculation That Ibanez, in the Conduct of Her

Law Practice, May Violate the Board’s Rules on

the Management of Public Accounting Practices

The Board’s order speculates that Ibanez, in the con-

duct of her law practice, may violate its rules on the

management of public accounting practices. Mere spec-

ulation, however, is not a sufficient justification for

restricting Ibanez’s commercial speech.

If the Board has sufficient reason to do so, it may

bring formal charges against Ibanez, accusing her of past

or continuing violations of specific rules on the manage-

ment of public accounting practices. She will then receive

the elaborate procedural protections of the Florida

Administrative Procedure Act as well as the due process

guarantees of the state and federal constitutions. In these

proceedings she will have the opportunity to raise her

defenses, including any appropriate challenge to the

Board's jurisdiction to enforce its rules against the law

practice of a CPA who is not engaged in the practice of

public accounting.

If the Board finds, in such proceedings, that it has

jurisdiction over Ibanez’s law practice, and that Ibanez

has indeed violated specific rules, the Board may impose

the discipline authorized by statute, subject to judicial

review. If that discipline consists of the revocation of her

license, she will then be prohibited from identifying her-

self as a CPA. Until then, Ibanez is a CPA and is entitled

to identify herself as one.

Il. THE BOARD CHILLS THE FIRST AMENDMENT

RIGHTS OF ATTORNEY-CPAs AND OTHER MUL-

TIPLE LICENSEES

The Board's action against Ibanez has a chilling effect

on the First Amendment rights of attorney-CPAs and

other multiple licensees. Experience has shown that the

public interest can be effectively protected without

impairing the First Amendment rights of practitioners.

Consequently, the Board's restriction of commercial

speech is not narrowly tailored to serve a valid state

interest.

A. The Board Chills the Right of Attorney-CPAs to

List Their Professional Credentials Truthfully

During the 30 years of AAA-CPA’s existence as well

as in earlier times, attorney-CPAs have faced two types of

restrictions — on their right to practice both professions

and on their right to identify their credentials in both

professions. Gradually, the contours of an appropriate

regime for multiple licensees have emerged. Although

some restrictive attitudes remain, the current consensus

reflects a significant trend toward the greater accom-

modation of multiple licensees.

The Florida Board's action against Ibanez signals a

return to the restrictive policies of the past. These policies

have been abandoned by bar regulators (in Florida as

well as elsewhere) and by accounting regulators (in other

states, but not in Florida).

If the Florida Board’s action is allowed to stand,

attorney-CPAs in Florida will not be able to list their CPA

credentials unless they accept the Board's jurisdiction to

enforce the entire accountancy law against their law prac-

tices. This will be the result even for attorney-CPAs who,

like Ibanez, choose to limit themselves to the practice of

law.

As stated in the Board’s order in this case, compli-

ance with the accountancy law requires, among other

matters, registration as a CPA firm, foregoing certain

types of remuneration (such as contingent fees), and lim-

iting the ownership of the firm to other CPAs. J.A. at 185.

By demanding compliance with the accountancy law as

the price to pay for listing one’s CPA credential, the

Board seeks to transform a law practice into a fully regu-

lated accounting firm merely because an attorney-CPA

lists her CPA credentials. This is an intolerable burden to

place on the exercise of commercial speech. It will chill

the exercise of First Amendment rights by attorney-CPAs.

It will, in addition, tend to discourage practitioners who

currently hold one professional license from seeking to

qualify for a second license in another profession. The

public interest is disserved by sapping ambition from

those who wish to expand their professional qualifica-

tions.

The Board’s burden on commercial speech is not only

intolerable; it is also completely unnecessary. Experience

shows that effective regulation is possible without impos-

ing this burden on commercial speech.

B. Bar Regulators and Other States’ Accounting

Regulators Effectively Protect the Public Inter-

est Without Chilling the First Amendment

Rights of Attorney-CPAs

Until 1980, the restrictions against attorney-CPAs

came primarily from the American Bar Association

(ABA). Since then, the restrictions have come from the

accountancy boards of a few states, primarily Florida,

while other states have reached reasonable accommoda-

tions with attorney-CPAs.

1. ABA abandoned its repressive policies

toward CPAs in 1980

Starting in 1932, ABA interpretations of the 1908

Canons of Professional Conduct prohibited attorneys

from engaging in other businesses. ABA Informal Op.

1422 (1978) (historical summary). The clear purpose of

these prohibitions was to prevent the non-law business

from “feeding” clients to the law practice.

Many states chose to ignore the ABA's position on

this issue. See, for example, New York County Lawyers’

Ass'n. Committee on Professional Ethics, Answer to

Question 388 (1949), 122 N.Y.L.J. 1088 (1949), 89 J. Acctey.

71 (1950) (allowing attorney-CPAs to practice both profes-

sions in the same office, noting this result was contrary to

ABA opinions). In support of the New York County ethics

opinion, a commentator observed:

The combination in one person of the functions

of lawyer and accountant, representing the ulti-

mate degree of cooperation between the two

professions, would give the client the advantage

of more continuous and timely professional

supervision. This feature would seem especially

valuable to the small businessman who can

afford only limited professional assistance.

Note, Attorneys Who Are Also Certified Public Accountants

May Properly Practice Both Professions in the Same Office, 63

Harv. L. Rev. 1457, 1458 (1950).

The ABA adopted the Model Code of Professional

Responsibility in 1969 (effective January 1, 1970). The

Model Code included a Disciplinary Rule, DR 2-102(E),

representing a significant departure from the ABA’s prior

position. DR 2-102(E) allowed an attorney to engage in

another profession or business, subject to one proviso —

the lawyer could not identify the other business or pro-

fession on the letterhead, office sign, or professional card

of the law practice, nor could the lawyer be identified as

a lawyer in any publication in connection with the other

business or profession. Thus the ABA Model Code per-

mitted dual practice but prohibited identification as a

dual practitioner.

In 1977 this Court decided Bates v. State Bar of Ari-

zona, 433 U.S. 350 (1977), conferring First Amendment

protection on certain types of advertising by lawyers. In

the aftermath of Bates, the ABA overhauled its rules on

advertising. At first DR 2-102(E), prohibiting identifica-

tion as a dual licensee, was left intact. In 1980, however,

the ABA repealed DR 2-102(E), apparently in the belief

that the rule was incompatible with Bates. ABA, Proceed-

ings of 1980 Mid-Year Meeting, 105 ABA Annual Reports

287, 341 (1985).

The ABA Model Rules of Professional Conduct,

adopted in 1983 to replace the Model Code, include no

prohibition against identification as dual licensee. ABA

Informal Op. 83-1497, n.2 (1983) (commenting on this

aspect of the then-pending Model Rules).

State courts and bar ethics committees have generally

adopted the permissive stance now taken by the ABA.?

During the past decade, dual licensees have encoun-

tered few if any restrictions from bar regulators. Signifi-

cantly, The Florida Bar has not objected to Ibanez’s

identification as CPA and CFP in the telephone yellow

pages under the heading “Attorneys.” Only the Florida

Board of Accountancy objects; the Board’s reprimand pre-

cipitated the present lawsuit.

2 Examples include: Mass. Bar Ass'n. Committee on Profes-

sional Ethics, Op. No. 82-2 (Dec. 1982), THe Artorney-CPA, Win-

ter 1983, at 1 (references to a lawyer's dual professional status

as an attorney and certified public accountant on his business

card do not violate rules governing lawyers); Mich. Bar Com-

mittee on Professional and Judicial Ethics, Op. CI-795 (1983),

Tue Arrorney-CPA, Summer 1983, at 7 (a certified public accoun-

tant who is also an attorney may list both licenses on his profes-

sional card, letterhead and office sign); Texas State Bar Assn.

Op. 406 (1983), THe Arrorney-CPA, Winter 1984, at 1 (a lawyer

who is also a CPA may show the accounting qualification on his

law firm’s letterhead and on his professional card); New Jersey

Advisory Committee on Professional Ethics, Op. 589 (1986), 22

Tue Arrorney-CPA, No. 3, Sept./Oct. 1986, at 1 (the designation

“C.P.A.” may be used on the letterhead of an attorney who is

also a certified public accountant - overruling contrary conclu-

sion in Op. 447 [1980], because State Supreme Court repealed

rule on which Op. 447 was based).

eacamaaeas

2. Three states exempt attorneys from accoun-

tancy act

While Florida leads the nation in repressing the

truthful speech of CPAs, other states accommodate attor-

ney-CPAs in varying degrees.

Three states have enacted statutes declaring that the

accountancy law does not apply to an attorney in connec-

tion with that person’s law practice.®

These statutes respect the separation of powers of

their respective state constitutions, leaving the state

courts to regulate the practice of law while the state

boards of accountancy regulate the practice of public

accounting. AAA-CPA is not aware that any of these

states have suffered any danger to the public interest, or

have even received any complaints, resulting from these

statutes.

* Calif. Bus. & Prof. Code Sec. 5053 (1990): “Nothing herein

shall be deemed to be applicable to an attorney at law in connec-

tion with his practice.” [in Division 3, Professions and Voca-

tions, Chapter 1, Accountants].

Mich. Comp. L. Ann. Sec. 339.711 (1992): “This article shall

not prevent the following: . . . (c) A practicing attorney from

preparing reports or presenting records customarily prepared

by an attorney in connection with the attorney’s professional

work.” [in Article 7, Public Accounting].

Wis. Stat. Ann. Sec. 442.02(8) (1988): “Nothing contained in

this chapter shall apply to a practicing attorney who, in connec-

tion with his or her professional work renders any accounting

service.” [in Ch. 442, Accounting Examining Board].

3. Accounting regulators in many other states

have reached practical accommodations with

attorney-CPAs

In 1946, the American Institute of Accountants

(“AIA,” predecessor of the American Association of Cer-

tified Public Accountants, “AICPA”) endorsed the right

of attorney-CPAs to practice both professions. American

Institute of Accountants, Committee on Professional

Ethics, Official Text, May 8, 1946, 83 J. Acctcy. 171 (1947).

At the time, AIA prohibited CPAs from advertising, as

did state boards and voluntary societies of CPAs through-

out the country.

After Bates, states could no longer prohibit advertis-

ing. After an extended dispute with the Federal Trade

Commission, AICPA entered into a consent decree in

1990, agreeing to refrain from taking any action restrict-

ing or interfering with “[t]he solicitation of any client by

any means... ” FTC, Notice of Consent Decree (Ameri-

can Institute of Certified Public Accountants), 55 Fed.

Reg. 40944 (Oct. 5, 1990).

On the basis of AAA-CPA’s anecdotal knowledge, it

appears that many states have developed reasonable

accommodations with attorney-CPAs, reflecting a combi-

nation of the 1946 AIA policy and this Court’s First

Amendment case law. The Florida Board’s action in the

present case is not supported by any reported precedent,

and is clearly out of step with the prevailing approach

taken by other state boards.

4. Uniform Accountancy Act and Proposed

Rules have attracted new attention to regu-

lation of attorney-CPAs

Interest in the relationship between state boards of

accountancy and attorney-CPAs was recently heightened

by publication of the Uniform Accountancy Act. Ameri-

can Institute of Certified Public Accountants & National

Association of State Boards of Accountancy, Uniform

Accountancy Act (1992), 1 C.C.H. Accountancy L. Rptr.

par. 1031 (looseleaf). In October 1993, the same organiza-

tions invited comments on Proposed Rules to Accompany

the Uniform Accountancy Act. The Uniform Accountancy

Act and the Proposed Rules are now under serious con-

sideration in a number of states.

a. “Holding out” under Uniform Act and

Proposed Rules

The Uniform Accountancy Act purports to apply, in

its entirety, to CPAs who are engaged in the practice of

public accountancy. Section 3(g) includes a definition of

the practice of public accountancy that relies on a “hold-

ing out” rule.4 The Proposed Rules to accompany the

* Section 3(g) of the Uniform Accountancy Act defines

“Practice of (or practicing) public accountancy” to mean “the

performance or the offering to perform by a person or firm holding

itself out to the public as a licensee, for a client or a potential

client, of one or more kinds of services involving the use of

accounting or auditing skills, including the issuance of reports

on financial statements, or of one or more kinds of management

advisory, financial advisory or consulting services, or the prepa-

ration of tax returns or the furnishing of advice on tax matters.”

(emphasis added)

Uniform Act define “holding out” to include any listing,

letterhead, or other representation of the fact that a

licensee holds a certificate.°

b. AAA-CPA critique

These Proposed Rules give cause for concern. In con-

text of the Uniform Act, they purport to make the entire

accountancy law apply to licensees who merely identify

themselves as CPAs, even if those licensees render no

accounting services at all, or render accounting services

only incidentally in connection with the practice of law or

another profession. Further difficulty arises in defining

“accounting services,” especially with regard to the many

overlapping areas between the practice of law and the

practice of accounting.

In December 1993, AAA-CPA submitted comments

and suggestions to AICPA and the National Association

of State Boards of Accountancy (“NASBA”). American

Association of Attorney-Certified Public Accountants,

Committee on Cooperation Between the Professions of

Accountancy and Law, Comments on Uniform Accountancy

Act (1992) and Proposed Rules to Accompany the Act (1993),

5 AICPA/NASBA Proposed Rules to Accompany Uniform

Accountancy Act, Exposure Draft Oct. 1, 1993, Rule 3-3: “Hold-

ing out” includes “any representation of the fact that a licensee

holds a certificate . . . [A] representation shall be deemed to

include any oral or written communication conveying the fact

that the licensee holds a certificate . . . , including without

limitation the use of titles or legends on letterheads, business

cards, office doors, advertisements and listings.”

29 THe Atrorney-CPA, No. 5, at 6 (Year End 1993) (“AAA-

CPA critique”).

The AAA-CPA critique suggests some alternative

standards or concepts, without attempting to put them

into statutory or regulatory language. According to the

AAA-CPA critique, in summary: “[A] CPA [should] be

partially exempt from the Uniform Accountancy Act if

the CPA (1) does not perform accounting services at all,

or (2) performs such services only incidentally to the

practice of law. Further, we suggest a narrow definition of

‘perform,’ so that the term will not include merely identi-

fying oneself as a CPA.” Id.

The AAA-CPA critique is noted here to illustrate the

type of dialogue that should take place in order to

develop a reasonable regulatory framework for attorney-

CPAs and other dual licensees. Instead of contributing to

this developmental process, however, the Florida Board

has chosen to repress the commercial speech of a dual

licensee.

5. Florida position is more repressive than

Uniform Act and Proposed Rules

Even the Uniform Accountancy Act and the AICPA /

NASBA Proposed Rules do not support the position of

the Florida Board in the present case. The AICPA/

NASBA Proposed Rules address the question of a board’s

regulatory jurisdiction, suggesting that a CPA who adver-

tises her credentials is subject to regulation by the state

board of accountancy.

The Florida Board, in contrast, has gone much fur-

ther. In an effort to assert its jurisdiction over Ibanez’s

law practice, the Board has reprimanded Ibanez for the

so-called “deceptive” listing of her CPA credential. Thus

the Board has equated its claim to exercise jurisdiction

with its claim to repress the truthful and verifiable listing

of Ibanez’s CPA credential. The AICPA/NASBA Pro-

posed Rules do not remotely support the Florida Board's

action in this case.®

C. The Board Can Accomplish Its Legitimate Reg-

ulatory Purposes Without Impairing First

Amendment Rights

The Board has ample means for accomplishing its

legitimate regulatory purposes without impairing

Ibanez’s First Amendment rights.

1. Board has power to prohibit deceptive

speech, but has misused that power in this

case

The Board’s power to prohibit deceptive speech is

clearly based on a legitimate regulatory interest. The

6 The Board's position is vigorously supported by Lloyd

“Buddy” Turman & Kenneth R. Hart, When You Say You're A

CPA, You Must Play By The Rules . . . All The Rules, 29 Tue

Arttorney-CPA, No. 1, at 6 (Winter 1993), reprinted from Florida

CPA Today, Oct. 1992, at 8. (Mr. Turman is Executive Director of

the Florida Institute of Certified Public Accountants; Mr. Hart is

General Counsel of the same organization.)

Two of the authors of the present amicus curiae brief wrote

criticisms of the Turman/Hart article: Sydney S. Traum, The

Public's Right to Know, 29 THe Atrorney-CPA, No. 1, at 6 (Winter

1993); Philip D. Brent, Is the FICPA Playing By The Rules?, 29 Te

Attorney-CPA, No. 2, at 7 (Spring 1993).

Board, however, violated Ibanez’s First Amendment

rights by a completely unjustified exercise of this power -

the imposition of discipline for the so-called “deceptive”

listing of truthful and verifiable information about her

professional credentials.

The Board persists in attempting to justify its disci-

plinary action against Ibanez, apparently ignoring two

recent cases which struck down the Board's violations of

First Amendment rights: Edenfield v. Fane, 507 U.S. __,

113 S. Ct. 1792 (1993) (Board’s anti-solicitation rule held

invalid as applied to truthful, non-coercive solicitation in

the business context); Dep't. of Professional Regulation,

Board of Accountancy v. Rampell, 621 So.2d 426 (Fla. 1993)

(Board’s anti-competitive bidding rule held invalid).

2. Board’s interest in regulating law practice

of CPA is questionable

In addition to regulating deceptive speech, the Board

has other legitimate interests in regulating the profession

of public accounting. The Board's interests are at their

highest level as regards CPAs who are engaged full-time

in rendering accounting services to the public. The

Board’s regulatory interest decreases as regards CPAs

who do not practice public accounting at all, or who do

so only as an incident to the practice of another profes-

sion. The precise scope of the Board’s legitimate interest

in regulating Ibanez’s law practice is a question of state

law.

3. Board has avoided any direct test of its

asserted jurisdiction over law practice of CPA

As noted above, the Board has not brought disciplin-

ary proceedings accusing Ibanez of conducting her law

practice in a manner that violates the Board’s rules on the

management of public accounting practices. Accordingly,

the Board has not given the Florida courts an opportunity

to determine the scope of the Board’s jurisdiction over the

law practice of a CPA. Neither has the Board initiated any

declaratory proceedings that could resolve the matter.

Instead of directly testing its asserted jurisdiction to

regulate Ibanez’s law practice, the Board seeks to do so

indirectly. The Board has had a longstanding dispute with

Ibanez regarding the extent of the Board's jurisdiction to

regulate her law firm. Rather than bring this dispute to a

judicial test, however, the Board seeks to achieve its pur-

poses in another way - by reprimanding her for so-called

“deceptive” listing of her credentials. The Board calls this

listing “deceptive” solely because the public may misun-

derstand the scope of the Board's jurisdiction. Thus the

Board misuses its power to regulate deceptive speech,

thereby violating Ibanez’s First Amendment rights.

4. Board has not used rulemaking to clarify its

jurisdiction completely

The Board may clarify the scope of its jurisdiction by

amending the definitions and exemptions contained in its

rules.”

7 Fla. Stat. Ann. Sec. 473.304(1) (1991) “The Board shall

adopt all rules necessary to administer this Act.”

The Board has adopted rules defining the scope of

the Act and conferring exemptions.* The Board’s rule

conferring these exemptions was adopted, in part, as a

response to Cenac v. Florida Ste'e Board of Accountancy, 399

So.2d 1013 (Fla. 1st Dist. Ct. App. 1981). Among other

matters, the Cenac court recognized the Board’s power to

define “Florida practitioner” so as to render a licensee

partially exempt from the Act if that person did not “hold

out” as a CPA.

Having already adopted rules conferring partial

exemption from the Act on CPAs who do not “hold out,”

the Board is clearly authorized to adopt additional rules,

conferring partial exemption on other categories of

licensees. It has not done so.

Fla. Stat. Ann. Sec. 473.323(2) (1991) “The Board shall spec-

ify, by rule, what acts or omissions constitute a violation of

subsection (1) [grounds for disciplinary action].”

* Fla. Admin. Code, Rule 21A-20.011. Practice of, or practic-

ing public accountancy. “Practice of, or practicing public

accountancy” as defined in Sec. 473.302(4), F.S. shall exclude

any of the following:

(1) Services rendered by a licensee as an employee of a

governmental unit or an employee rendering accounting ser-

vices only to his employer as long as that employer is not

required to be licensed under F.S. 473, or

(2) Activities of licensees who do not hold themselves out

as CPAs and who are not associated with financial statements,

(3) Activities of licensees who do not hold themselves out

as certified public accountants.”

5. Board’s rule defining “holding out” was

held invalid

In connection with the rule conferring partial exemp-

tion on CPAs who do not “hold out,” the Board adopted

another rule, Fla. Admin. Code, Rule 21A-20.012, defin-

ing “holding out.” This definitional rule was held invalid

by an independent hearing officer in Ibanez v. Board of

Accountancy, Fla. Div. of Admin. Hearings, Case No.

91-3336R (Jan. 15, 1992) (noted in Board’s order, J.A. at

182, n. 4). The Board could have appealed this decision to

the Florida courts, or could have adopted a revised rule,

but the Board did neither.

In summary, the Board has failed to clarify its own

jurisdiction to regulate the law practices of CPAs, and the

Board has avoided any step that would give the Florida

courts an opportunity to address this issue. Instead, the

Board has disciplined Ibanez for so-called “deceptive”

advertising, consisting of the truthful and verifiable list-

ing of her professional credentials.

D. Board Chills the Rights of Other Multiple

Licensees

This brief has focused on the individual who is

dually licensed as an attorney and a CPA. The signifi-

cance of the present case goes further, extending to any

individual who is licensed in more than one profession.

The ABA’s restrictions on dual practice (until 1970)

and dual identification (until 1980) applied to lawyers

who engaged in any other business or profession. See, for

example, ABA Informal Op. 1248 (1972) (lawyer-psychol-

ogist), ABA Informal Op. 83-1497 (1983) (lawyer-physi-

cian), ABA Informal Op. 1422 (1978) (lawyer in another

profession or business); ABA 1980 Mid-Year Proceedings,

supra (lawyer-Ph.D.). While the ABA no longer imposes

these restrictions, this history illustrates various other

professions in which lawyers have engaged.

Ifl. THIS COURT SHOULD MAINTAIN AND CLAR-

IFY ITS PROTECTION OF COMMERCIAL

SPEECH

The public interest is well served by this Court's

protection of commercial speech. This Court should

maintain that protection and clarify its scope.

A. This Court’s Protection of Commercial Speech

Continues to Serve the Public Interest

This Court’s decisions in Bates and subsequent cases

recognize the First Amendment right of lawyers and

members of other professions to advertise, provided the

advertisement relates to lawful conduct and is not decep-

tive or coercive. These cases serve the public interest by

assuring the free flow of commercial speech. At the same

time, practitioners benefit from the opportunity to

describe their qualifications and services.

Recently the staff of the Federal Trade Commission

summarized the benefits of advertising by professionals.

Such advertising:

informs consumers of options available in the

marketplace and encourages competition among

firms seeking to meet consumer needs. . . .

Advertising may sometimes be unfair or decep-

tive or may violate other legitimate goals of

public policy. But truthful advertising is gener-

ally beneficial and procompetitive.

FTC Staff Comments, In the Matter of Amendments to the

Mississippi Rules of Professional Conduct, FTC Topay, Jan.

18, 1994, LEXIS pp. 9-10, summarized in 9 Lawyers Manual

on Professional Conduct 414, 415 (1994).

B. This Court Should Maintain the Protection of

Commercial Speech, and Clarify it to the Extent

Required to Provide Relief to Ibanez

This Court’s prior decisions on commercial speech

strongly support the right of Ibanez to prevail in this

case. The Court should clarify the case law on commercial

speech, to the extent needed in this case, in order to

uphold the right of a licensed practitioner to list truthful

and verifiable information about her professional creden-

tials. A holding to this effect would leave the state with

ample authority to accomplish its legitimate regulatory

purposes by other means.

Any person who has the talent, persistence and

integrity to qualify for two or more professional licenses,

and to retain these licenses in good standing, is put at

risk by the Board’s decision in the present case. The

public interest is served by allowing individuals who

hold multiple licenses to practice any or ail of the profes-

sions in which they are licensed, and to convey truthful

and verifiable information about their credentials.’

9 See, for example, Philip D. Brent, Accounting and Law:

Concurrent Practice Is In the Public Interest, 123 J. Acctcy., Mar.

Every multiple licensee faces the possibility of multi-

ple regulation. The scope and extent of that regulation are

important issues, to be resolved in the first instance by

the state regulatory authorities, subject to review by the

state courts. If federal constitutional rights are at issue,

this Court may ultimately grant relief.

CONCLUSION

In this case, the Board speculates that Ibanez, in the

conduct of her law practice, has violated some of the

Board's rules on the management of public accounting

practices. The Board, however, has not formally charged

Ibanez with any such violation. Instead, the Board has

reprimanded Ibanez for so-called “deceptive” listing of

her CPA credential. The Board, in so doing, has placed an

impermissible burden on the exercise of Ibanez’s First

Amendment rights.

The Board's decision, repressing truthful and verifia-

ble identification of professional credentials, is contrary

to the public interest and impairs First Amendment

rights. For the reasons stated above, this Court should

reverse the judgment of the Florida District Court of

Appeal which, without opinion, affirmed the Board's

decision.

1967, at 38; Louis S. Goldberg, Dual Practice of Law and Accoun-

tancy: A Lawyer's Paradox, 1966 Duxe L. J. 117; Louis S. Goldberg,

A Lawyer's Multiple Occupations, 6 Wake Forest INTRAMURAL L.

Rev. 191 (1970); Morris W. Primoff, The Dual Practice of Law and

Accounting and the Public Interest (Ph.D. dissertation, Calif. West-

ern Univ., 1977, published by AAA-CPA).

February 28, 1994

Respectfully submitted,

L. Haroip LEVINSON *

School of Law, Vanderbilt

University

Nashville, TN 37240

(615) 322-2540

Pour D. Brent

PHiur D. Brent, PROFESSIONAL

CORPORATION

16000 Ventura Blvd., Suite 500

Encino, CA 91436

(818) 990-2444

THomas W. McCuttocu

THomas W. McCuttocn, P.C.

3003 Summit Tower

Eleven Greenway Plaza

Houston, TX 77046

(713) 961-1099

Davip OsTROVE

Ostrove, KRANtz & OstROvE,

A_ PROFESSIONAL CORPORATION

5757 Wilshire Blvd., Suite 535

Los Angeles, CA 90036

(213) 939-3400

SypNeY S. TRAUM

Sypney S. Traum, P.A.

Semet, LicKsTEIN, MORGENSTERN,

BerGcer, FrigND, Brooke &

Gorpon. P.A.

201 Alhambra Circle, Suite 1200

Coral Gables, FL 33134

(305) 444-1400

Attorneys for amicus curiae,

American Association of Attorney-

Certified Public Accountants, Inc.

* Counsel of Record

— lla

we in rte

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.