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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 136

## Text

ie Bupreme Court, vs
Fil

ND

FD

No. 93-639

In The
Supreme Court of the Unit

October Term, 1993
+

SILVIA S. IBANEZ,

Petitioner,
V.

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
ay

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

A.

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

12

14

14

17

18

19

21

22

22

23

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

iv

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

v

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

vi

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
o

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.

10

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.

11

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.

12

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

13

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.

14

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

15

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

16

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

17

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].

18

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.

19

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)

20

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.”

21

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.

22

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).

23

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.

24

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.”

25

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,
or

(3) Activities of licensees who do not hold themselves out
as certified public accountants.”

26

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

ae

27

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. . . .

28

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.

29

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.

S

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

30

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0465%3A12. Public record. Not legal advice.