Appendix — Attorney R v. Mississippi Bar

2 Supreme Court, U.S.

2. &

JUL 14 1999.

No. 94-1781 CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

ATTORNEY R,

Petitioner

V.

THE MISSISSIPPI BAR,

Respondent

On Petition For Writ Of Certiorari

To The Supreme Court Of Mississippi

AMENDED APPENDIX

R. Charles Robb,

Petitioner Pro Se

Post Office Box 10793

#5 Twelve Oaks Circle

Jackson, MS 39209-0793

(601) 922-1111

July 14, 1995

BEST AVAILABLE COPY

en og ee

FO ART LIE ae 5 PRN A ENR pe RO

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

RICHARD B. SCHWARTZ, LANCE L. STEVENS,

ANDY STEWART, MARK W. DAVIS, GUICE & GUICE, INC.,

RICHARD SACKETT EXECUTIVE CONSULTANTS, INC.,

MISSISSIPPI ASSOCIATION OF BROADCASTERS, AND

PUBLIC CITIZEN, INC.

PLAINTIFFS

VS. CIVIL ACTION NO. 3:94-CV-569BN

W. SCOTT WELCH, Ill, PRESIDENT, THE MISSISSIPPI

BAR; L.F. SAMS, JR., FIRST VICE PRESIDENT AND

PRESIDENT-ELECT, THE MISSISSIPPI BAR; PAULA A.

GRAVES, SECOND VICE PRESIDENT, THE MISSISSIPPI

BAR; BILLIE J. GRAHAM, CHAIRMAN, COMMITTEE ON

PROFESSIONAL RESPONSIBILITY, THE MISSISSIPPI BAR;

DONALD C. DORNAN, JR., BENJAMIN E. GRIFFITH, AVA

N. JACKSON, JOHN G. JONES, AND T. CALVIN WELLS,

MEMBERS OF THE COMPLAINTS COMMITTEE, THE MIS-

SISSIPP! BAR

DEFENDANTS

RULING OF THE COURT

l. INTRODUCTION

The Court has conducted a bench trial of this matter and

has considered the testimony, the other evidence presented

into the record, the briefs and closing arguments of counsel.

7%

The Court enters its opinion by way of these findings of

fact and conclusions of law.

This is a declaratory judgment action, wherein Plaintiffs,

under the First and Fourteenth Amendments to the United

States Constitution and 42 U.S.C. §1983, challenge the con-

stitutionality of certain of the Amendments to Rule 7, Informa-

tion About Legal Services, Mississippi Rules of Professional

Conduct ("the new Rules"), as promulgated by the Supreme

Court of Mississippi on June 22, 1994. The new Rules re-

strict lawyer advertising in various ways, and Defendants in

this action have enforcement authority over those Rules.

Plaintiffs are four attorneys, licensed and actively engaged in

the practice of law in Mississippi,’ two advertising and public

relations corporations, both authorized to do and doing busi-

ness in Mississippi ("the advertising agency Plaintiffs"),* the

Mississippi Association of Broadcasters ("MAB," or "the me-

dia plaintiffs"),° and Public Citizen, Inc. ("Public Citizen"), a

consumer advocacy organization.‘ Defendants are W. Scott

Welch, Ill, President of The Mississippi Bar, L.F. Sams, Jr.,

' These attorneys are Richard B. Schwartz, Lance L. Stevens, Andy Stewart

and Mark W. Davis.

2 ‘These firms are Guice & Guice, Inc., based in Biloxi, Mississippi, and

Richard Sackett Executive Consultants, Inc., based in New Orleans, Louisiana.

Both firms have assisted one or more of the lawyer plaintiffs in preparing

television advertisements that have been telecast in Mississippi

> MAB is comprised of some fifteen Mississippi-based television stations and

120 Mississippi-based radio stations, many of which have broadcast

advertisements by the lawyer plaintiffs.

* Public Citizen claims a nationwide membership of over 140,000,

“approximately 462 of whom reside in Mississippi and are persons who in the

past have been, at present are, and some of whom will in the future be in the

market in Mississippi for competent legal services... " Compl. at 5

2.

EE

President-Elect of The Mississippi Bar, Paula Graves, Se-

cond Vice President of The Mississippi Bar, and the Chair-

man and members of the Committee on Professional

Responsibility, formerly known as the Complaints Committee,

of The Mississippi Bar.* Each of the Defendants is sued in

his official capacity. Each of the lawyer Plaintiffs claims he

has been forced to restrict or discontinue one or more of the

advertisements he has used in the past or wishes to use now,

or risk prosecution and discipline by Defendants. The adver-

tising agency Plaintiffs contend that, because the new Rules

prohibit or restrict certain advertising techniques, they are

hindered in their ability to propose and prepare advertise-

ments for the lawyer Plaintiffs wno comply with the new

Rules. They also claim they will suffer a loss of income, due

to reduction in volume of broadcast advertising as a direct re-

sult of the new Rules. MAB also claims its members will lose

income because the new Rules will decrease the volume of

broadcast advertising by lawyers. Public Citizen claims the

new Rules will deprive its members and all Mississippians of

information regarding the availability and price of legal

services.

A. Procedural Background

Plaintiffs commenced this action on September 21, 1994.

On October 13, 1994, they filed a Motion for Preliminary In-

junction, and on November 14, 1994, this Court entered a

Consent Order advancing the case on its docket for trial on

the merits in lieu of hearing the Motion for Preliminary Injunc-

tion and providing for a moratorium on enforcement of the

, The Chairman of the Committee is Billie J. Graham. Members of the

Committee are Donald C. Dornan, Jr, Benjamin E. Griffith, Ava N. Jackson, John

G. Jones, and T. Calvin Wells.

new Rules with two exceptions. The Order provided that the

disclosures required by Rules 7.2(d)° and 7.6’ would remain

in full force and effect. This Court conducted a bench trial of

this matter from February 27 through March 2, 1995.

B. The Challenged Rules®

Plaintiffs challenge the new Rules 7.1, 7.2 and 7.6, as

follows:

(1) The mandatory disclosure requirement of Rule 7.2(d)

for all lawyer advertisements, which requires use of these

words:

The Mississippi Supreme Court advises that a decision on

legal services is important and should not be based solely on

advertisements.

(2) The mandate of Rule 7.6(a) that any advertisement

suggesting an area of practice include the following

statement:

Listing of these previously mentioned area(s) of practice

does not indicate any certification of expertise therein.

(3) The mandatory disclosure requirement of Rule 7.2(l),

which states:

All advertisements and written communications provided

for under these Rules shall disclose the geographic location,

® Rule 7.2(d) requires that all broadcast advertisements state "The Mississippi

Supreme Court advises that a decision on legal services is important and should

not be based solely on advertisements.”

” Rule 7.6 provides that, if the advertisement communicates that a lawyer

practices in a particular field, it must state that "Listing of these previously

mentioned area(s) of practice does not indicate any certification of expertise

therein.”

. Although the Court will discuss each of the Rules in the body of this Opinion

and Order, it attaches as Appendix A both the challenged Rules and the

Comments thereto.

by city or town, of the office in which the lawyer or lawyers

who will actually perform the services advertised principally

practice law. If the office location is outside a city or town, the

county in which the office is located must be disclosed.

(4) The disclosure required by Rule 7.2(h) which states:

Every advertisement and written communication that con-

tains information about the lawyer's fee, including those which

indicate no fee will be charged in the absence of a recovery,

shall disclose whether the client will be liable for any ex-

penses in addition to the fee.

(5) The disclosure required by Rule 7.1(a), “as authorita-

tively interpreted through Official Comments,’ that prohibits

an advertisement for a law firm which states that all of the

firm's lawyers are juris doctors but does not disclose that a ju-

ris doctorate is a law degree rather than a medical degree of

some sort and that virtually any law firm in the United States

can make the same claim.

(6) The disclosure required by Rule 7.2(b) providing that,

if the single voice otherwise allowed in an advertisement by

Rule 7.2(b) is not that of an attorney affiliated with the firm or

a full time employee of the firm, there shall be prominently

displayed at the beginning and end of said advertisement ei-

ther orally or in writing, a notice to the public in the following

form: "Actor portrayal" and/or "Paid Endorsement.”

Plaintiffs challenge the new Rules individually, but also re-

quest that the Court strike them down collectively, arguing

that Defendants cannot prove that the new Rules, individually

or aS a group, are a justified, constitutional restriction of

Plaintiffs’ commercial speech rights.

» The Court addresses the effect of the guidance provided by the Comments

elsewhere in its Opinion.

li. CONCLUSIONS OF LAW

A. Standing of Advertising, Media

and Consumer Plaintiffs

Defendants challenge the standing to bring this action of

the advertising firm Plaintiffs, the media Plaintiffs, and the

consumer Plaintiffs. They do not challenge the standing of

the lawyer Plaintiffs. The Court holds that eacti of these

groups, through pleadings and evidence presented at trial,

have proven they are proper plaintiffs in this lawsuit. While

the Court recognizes it is "under an independent obligation to

examine [its] own jurisdiction,” FW/PBS. Inc. v. Dallas, 493

U.S. 215, 231 (1990) (citing Allen v. Wright, 468 U.S. 737,

750 (1984)), and that standing may not be "inferred argumen-

tatively from averments in the pleadings,” id. (citing Grace v.

American Central Ins. Co., 109 U.S. 278, 284 (1883)), the

Court finds that Plaintiffs have presented evidence of particu-

larized injury sufficient to support standing to sue in this case.

See id. (stating that evidence of standing "must affirmatively

appear in the record”) (citing Mansfieid C. & L.M.R. Co. v.

Swan, 111 U.S. 379 (1884)).

The United States Supreme Court has written that "the ex-

tension of First Amendment protection to commercial speech

is justified principally by the value to consumers of the in-

formation such speech provides." Zauderer v. Office of Disci-

plinary Counsel, 471 U.S. 626, 651 (1985). That value to

consumers, and the specific allegations of injury of the Plain-

tiff members of Public Citizen, Inc., is sufficient to provide

standing to the consumer Plaintiffs. As to the advertising

agency and media Plaintiffs, the Court holds that they, too,

have standing to bring this suit.

The Supreme Court addressed the issue of advertiser

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Standing in Metromedia, Inc. v. San Diego, 453 U.S. 490

(1981), wherein the advertiser plaintiffs challenged the validi-

ty of a municipal ordinance prohibiting certain outdoor adver-

tising displays. Plaintiffs brought suit to enjoin enforcement of

the ordinance. In resolving the standing issue in favor of the

plaintiffs, the Court wrote:

[W]e have never held that one with a “commercial in-

terest" in speech also cannot challenge the facial va-

lidity of a statute on the grounds of its substantial

infringement of the First Amendment interests of oth-

ers. Were it otherwise, newspapers, radio stations,

movie theaters and producers -- often those with the

highest interest and the largest stake in a First Amend-

ment controversy -- would not be able to challenge

government limitations on speech as substantially

overbroad.

Metromedia, 453 U.S. at 504.1n.11. The Court then ap-

plied the four-part test from Central Hudson Gas & Electric

Corp. v. Public Service Comm'n, 447 U.S. 557, 563-566

(1980)"° for determining validity of government restrictions on

commercial speech, id. at 507, and held that the ordinance

was invalid under the First Amendment. Id. at 521. Although

Metromedia involved advertising plaintiffs, this Court holds

'° The Central Hudson four-part test for determining the validity of government

restrictions an commercial speech is as follows:

(1) The First Amendment protects commercial speech only if that speech

concerns lawful activity and is not misleading A restriction on otherwise

protected commercial speech is valid only if it (2) seeks to implement a

substantial governmental interest, (3) directly advances that interest, and (4)

reaches no further than necessary to accomplish the given objective

Central Hudson, 447 U.S. at 563-66, construed in Metromedia, 453 US. at

507

that the reasoning of the Court in that case applies to media

Plaintiffs, as well as the advertising agency Plaintiffs, in the

case at bar.

Pursuant to the requirements laid out by the Fifth Circuit in

Finch v. Mississippi State Medical Ass'n, Inc., 585 F.2d 765

(5th Cir. 1978), all the Plaintiffs have “alleged such a per-

sonal stake in the outcome of the controversy as to assure

that concrete adverseness which sharpens the presentation

of issues upon which the court so largely depends for illu-

mination of difficult constitutional questions." Finch, 585 F.2d

at 771 (citations omitted). Accordingly, the Court holds that

all Plaintiffs have standing sufficient to bring this lawsuit.

B. Applicable Legal Standard

The Supreme Court has held that lawyer advertising is

commercial expression to which protections of the First

Amendment apply, and Defendants do not claim otherwise.

See, e.g., Peel v. Attorney Registration & Disciplinary

Comm'n, 496 U.S. 91 (1990): Zauderer v. Office of Disciplin-

ary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985).

The question before the Court in this case, then, is whether

the new Rules unconstitutionally ban speech that is not false,

deceptive, or misleading, or restrict such speech without "a

showing that the restriction directly and materially advances a

substantial state interest in a manner no more extensive than

necessary to serve that interest." Ibanez v. Florida Dep't of

Business and Professional Regulation, Bd. of Accountancy,

114 S. Ct. 2084, 2085 (1994).

Defendants claim the central dispute in this case is wheth-

er Plaintiffs’ challenge to the new Rules is a “facial challenge"

or an “as applied" challenge. Defendants claim that since no

Plaintiffs are being prosecuted for a violation of any of the

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new Rules, this action presents a facial challenge, and Plain-

tiffs therefore have the burden to show that no set of circum-

stances exist under which the rules would be valid. Defs.'

Proposed Conc. of Law, §11. Although the distinction be-

tween the two standards is important,'' the Court has little dif-

ficulty concluding that this case involves an "as applied”

challenge to the new rules, and that the rules therefore

should be scrutinized under the Central Hudson test for con-

stitutionality. The Court finds that Defendants take an overly

narrow view of what must occur for state regulations to be

“applied” to Plaintiffs. Defendants essentially argue that, un-

less and until the State takes steps to enforce its regulations,

Plaintiffs may not mount an "as applied" attack, and are lim-

ited instead to a facial challenge. This contention is not sup-

ported by Supreme Court rulings on commercial speech

rights.

The Court finds that Plaintiffs here are in the precise legal

posture as the plaintiff Scott Fane ("Fane") in the recent case

of Edenfield v. Fane, 113 S. Ct. 1792 (1993). In Edenfield,

Fane sought declaratory and injunctive relief barring enforce-

ment of Florida rules prohibiting in-person solicitation by certi-

fied public accountants, on the ground that the rules violated

the First Amendment. Though the state had taken no en-

forcement action against Fane, he alleged "that but for the

% Depending upon how the challenge is construed, it dramatically shifts the

burdens of proof of the parties. Defendants argue that "the Plaintiffs have the

burden of showing that the challenged rules can never be effective in limiting

misieading or deceptive lawyer advertising or potentially misleading or deceptive

lawyer advertising.” Defs.' Proposed Concl. of Law, {| 1. Plaintiffs argue that

since the new advertising rules "directly and immediaiely impact them adversely,”

Defendants carry the burden of justifying the new regulations under the applicable

First Amendment commercial speech legal standard.

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prohibition he would seek clients through personal solicitation

and would offer fees below prevailing rates." Fane, 113 S.

Ct. at 1797. In its decision the Court wrote:

It is well established that "[t]he party seeking to uphold

a restriction on commercial speech carries the burden

of justifying it." Bolger v. Youngs Drug Products Corp.,

463 U.S. 60, 71,n.20, 103 S. Ct. 2875, 2883, n. 20, 77

L. Ed. 2d 469(1983); Fox, 492 U.S. at 480, 109 S. Ct.

at 3035. This burden is not satisfied by mere specu-

lation or conjecture; rather, a governmental body seek-

ing to sustain a restriction on commercial speech must

demonstrate that the harms it recites are real and that

its restriction will in fact alleviate them to a material de-

gree [additional citations omitted].

Id. at 1800. Just as in Metromedia, the Court went on to

apply the Central Hudson test, reserved, as the Defendants

claim, for those cases involving "as applied" challenges.

Although Defendants are correct that all lawyer advertis-

ing cases heretofore have reached the high court on appeal

from impositions of sanctions, this Court does not find this le-

gal coincidence dispositive. Each of the lawyer advertising

cases that has reached the Supreme Court has been viewed

by the Court as an "as applied” case, and in each case the

Court applied the Central Hudson test. Metromedia, Inc. v.

San Diego, though not a lawyer advertising case, involved the

same legal considerations as the lawyer advertising cases

and as the present case. In that case, as discussed above.

no enforcement actions had been instituted against plaintiff

outdoor advertisers, yet the Supreme Court applied the Cen-

tral Hudson test.

Finally, the Court is persuaded by Plaintiffs’ argument

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that, were they not able to bring an action for declaratory and

injunctive relief before proceedings were instituted against a

particular lawyer Plaintiff, they effectively would be deprived

of a federal forum to hear their case, short of appeal from the

Mississippi Supreme Court to the United States Supreme

Court. If Defendants were correct that the only way to obtain

"as applied" review is to await an enforcement action, then,

since federalism principles would require the federal court to

abstain during the pendency of such enforcement proceeding,

see, e.g., Middlesex County Ethics Committee v. Garden

State Bar Ass'n, 457 U.S. 423, 436-37 (1982); Younger v.

Harris, 401 U.S. 37 (1971), Plaintiffs’ declaratory and

injunctive claims under 42 U.S.C. §1983 could not be pursued

in federal court. Defendants’ contention simply is not

consistent with current law. Defendants have pointed the

Court to no commercial speech case in which the Central

Hudson test was not applied, and the Court holds that that

test should apply in this case.

C. Application of Commercial Speech Analysis”

same conclusion when, quite recently, it was presented with the same question.

See Jacobs v. Florida Bar, No. 93-2933, 1995 WL 125883 ‘11th Cir. Apr. 10,

1995) (holding, in challenge to Florida lawyer advertising rules/ where no

enforcement action had yet been taken, that district court should have placed

burden of proof on the Florida Bar, using “as applied" model). See also Texans

Against Censorship, Inc. v. State Bar of Texas, No. 3:94 CV 61, slip op. at 38

(E.D. Tex. Mar. 31, 1995) (holding that "Defendants carry the burden of

vindicating the amended rules").

as The Court draws its legal analytical structure for this section from the

recent Supreme Court opinion in !banez, 114 S. Ct. at 2088-89. The United States

Court of Appeals for the Eleventh Circuit came to the same conclusion when,

quite recently, it was presented with the same question. See Jacobs v. Florida

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Because "disclosure of truthful, relevant information is

more likely to make a positive contribution to decisionmaking

than is concealment of such information," Peel, 496 U.S. at

108 (1990), only false, deceptive, or misleading commercial

speech may be banned. Ibanez, 114 S. Ct. 2084, 2088

(citing Zauderer, 471 U.S. at 638. Stated another way,

“(t]ruthful advertising related to lawful activities is entitled to

the protections of the First Amendment... . Misleading ad-

vertising may be prohibited entirely." Inre RM.J., 455 US.

191, 203 (1982), cited in Ibanez, 114 S. Ct. at 2088.

Although commercial speech that is not false, deceptive,

or misleading may not be banned, it may be restricted. Cen-

tral Hudson, 447 U.S. at 566. However, the State may only

restrict such commercial speech if it shows that the restriction

directly and materially advances a substantial state interest in

a manner that is no more extensive than necessary to serve

that interest. Id. The State regulation will not be sustained if

it "provides only ineffective or remote support for the govern-

ment's purpose," id. at 564, and the regulation must advance

a substantial state interest in a “direct and material way" and

be in "reasonable proportion to the interests served.” Eden-

field, 113 S. Ct. at 1798.

The State Defendants in this case essentially placed all

their eggs in the basket of their contention that the Court

should analyze Plaintiffs’ claim under a facial challenge mod-

el. Defendants all but conceded at closing arguments that

Bar, No. 93-2933, 1995 WL 125883 (11th Cir. Apr. 10, 1995) (holding, in

challenge to Florida lawyer advertising rules, where no enforcement action had

yet been taken, that district court should have placed burden of proof on the

Florida Bar, using "as applied" model). See also Texans Against Censorship, Inc

v. State Bar of Texas, No. 3:94 CV 61, slip op. at 38 (E.D. Tex. Mar. 31, 1995)

(holding that "Defendants carry the burden of vindicating the amended rules”).

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they came to Court to prove no more than that there were

conceivable circumstances under which the new Rules could

be constitutional, and if they lost the battle on the burden of

proof, then they were not prepared to fight the remainder of

the war. The Court, having ruled that Plaintiffs’ "as applied”

model is the correct one in this case, is left largely to test the

new Rules under the Central Hudson test, under evidence

presented chiefly by the Plaintiffs.

D. Summary of Testimony

1. Plaintiffs’ Case-in-Chief

Plaintiffs’ first attorney witness was Richard Schwartz, a

practicing attorney in Mississippi since 1981. He has adver-

tised since 1989, using television advertisements, the Yellow

Pages, and billboards. Though he was offered free sixty se-

cond radio spots, and had advertisements prepared by an ad

agency, he claims the required disclaimers made the ads in-

effective, so he did not take advantage of the free air time.

He stated that he uses the Sackett advertising agency, the

president of which, Richard Sackett, testified later at trial.

Schwartz objected to all of the new Rules, and would use

each of the prohibited techniques if they were permitted.

Andy Stewart, a practicing attorney since 1990, testified

that he has been advertising since May 1992, using the Yel-

low Pages, newspapers, a few television ads, and the "Con-

sumer Tips" telephone dial ads. Stewart also objected to all

the new Rules. He explained that the Consumer Tips ads run

thirty seconds, and that the required disclaimers took eight to

twelve seconds of that time. He stated that, prior to the use

of disclaimers he was receiving 34 to 36 direct connects to

his officer per month, and after the disclaimers were re-

quired, he received 28 to 29.

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Mark Davis, who has been practicing law since 1984, has

advertised since July 1989, using television, the Yellow

Pages, and the newspaper. He also objected to all the rules,

explaining that he has used most of the techniques banned

by the new Rules, and would use them in the future if per-

mitted. Davis uses the Guice ad agency, the second of the

two advertising corporation Plaintiffs in this case.

The final of the four lawyer Plaintiffs is Lance Stevens, a

practicing attorney since 1988. He has been advertising for

three and a half years, using television ads produced by R.W.

Lynch Company for nation-wide use, tailored to the local law-

yer. He testified that he has used several of the techniques

banned by the new Rules, and would use them again if

permitted.

Reed Guice, president and chief operating officer of Guice

& Guice, Inc. advertising agency in Biloxi, Mississippi, testi-

fied that he handles advertising for Davis and Goldberg. He

stated that, from an advertising perspective, he saw no rea-

son to approach lawyer advertising any differently from other

service advertising. Guice went through each of the new

Rules, and gave reasons why each detracted from either the

effect of the advertisements that he could produce, or elimi-

nated altogether proven, effective, advertising techniques.

Richard Sackett, chief executive officer and chairman of

the board of Richard Sackett Executive Consultants of New

Orleans, Louisiana, represents Richard Schwartz as his ad-

vertising agent. He claims his agency is one of the few large

ad agencies handling mostly lawyer advertising. Sackett ex-

plained how he has changed Schwartz’ advertisements to

conform to the "spirit of the new Rules,” but claimed that he

did not know if it would be possible to conform to the letter of

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those Rules. He argued that any ad in strict conformance

would be so cluttered with disclosures as to be ineffective.

He took issue particularly with the ban on the use of testimo-

nials, noting that testimonials are one of the basic methods of

advertising, and a method easy to regulate. Either customers

or bar regulators would need only to go to the person offering

the testimonial to confirm its truth. Sackett also explained

how each of the rules impinged on basic advertising methods,

commonly used for advertisements in other service areas.

Charles Wolfram, a law professor from Cornell University

who teaches in the field of professional responsibility, and a

reporter for the American Law Institute committee writing Re-

Statement of Law Governing Lawyers, gave a brief history of

lawyer advertising. He noted that Abraham Lincoln adver-

tised, and that advertising by lawyers was common until the

end of the Nineteenth Century, when the notion developed

within the profession that advertising made lawyers look like

businessmen or tradesmen. He claimed that the profession

first used peer pressure to regulate advertising, then restric-

tive rules until Bates in 1977.

Professor Wolfram also noted the bad image lawyers have

always had, stating that at no time in recorded history had

lawyers been viewed positively. He attributed this negative

image to the kind of work that lawyers do, and to the human

foibles of the lawyers themselves, rather than to lawyer ad-

vertising. He stated that there are no studies which indicate

any correlation between lawyer advertising and the poor pub-

lic image of lawyers.

Professor Wolfram took issue with each of the new Rules

at issue in this case. He stated that the rules, as a group,

are more restrictive than those of all but a very few states,

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and far more restrictive than Bates requires. He testified that

most states use the ABA Model Rules, which simply prohibit

false, deceptive and misleading advertising. Professor Wol-

fram also pointed out some deficiencies in the individual

rules. As to the prohibition against testimonials and dramati-

zations, he stated that he could not define what the Mississip-

pi Bar meant by "testimonials," and in any case could find no

problem with the use of either testimonials or dramatizations,

so long as they were true. He questioned the prohibition

against "self-laudatory" advertisements, noting that advertis-

ing is self-laudatory by its very nature, emphasizing as it does

the qualities of the goods or services advertised. He also at-

tacked the use of disclosures, claiming they tend to make

viewers of the advertisement distrust the message, the lawyer

generating that message, and the legal profession itself.

Keith Murray, a marketing professor from Bryant College

in Smithfield, Rhode Island, explained basic marketing princi-

ples to the Court. He stated that the basic concept underlying

service marketing is providing the kinds of information con-

sumers want to hear. If the potential message is retarded by

overly-restrictive rules, then consumers are not able to re-

ceive the information they need. Professor Murray also took

issue with most of the rules from a marketing standpoint, and

criticized some of the studies relied upon by the Defendants

in formulating the new Rules.

Marcelene Johnson, a "practice development coordinator’

from Chicago, and past president of the National Law Firm

Marketing Association, testified about her marketing work for

four large, Chicago area law firms. She has developed bro

chures and other advertising programs, but has done no tele-

vision advertising. She is a public member of the ABA Com-

-16-

mission on Advertising, which developed "Awards for Dignity,"

a system for rewarding advertisements deemed "dignified."

The Commission solicited nominees through flyers mailed to

law firms and Johnson noted that in both 1992 and 1993, the

Commission received over 150 submissions for the awards.

Johnson also helped prepare the "Crossroads" report on

lawyer advertising. She described the series of hearings,

surveys, and wide spectrum of views and interests that went

into the preparation of the report, which was presented at the

1994 mid-year meeting of the ABA. She testified that the re-

port concluded that there was no evidence that disclosures or

disclaimers protected the image of the legal profession. In

fact, the Commission found that restrictive disclosures and

disclaimers were detrimental to the image of the profession.

She also testified that the Commission found no evidence of

problems resulting from the use of testimonials, self-laudatory

Statements, assurances of quality, dramatizations, more than

one voice, background sounds, or slogans. The Commission

concluded that the public was used to advertising in all its

forms, and was not misled by common advertising tech-

niques. It should be noted that the report has not been

adopted by the House of Delegates.

Stuart Kellogg, General manager of Jackson television

Station WAPT channel 16 and member of the Mississippi As-

sociation of Broadcasters, testified that his station has carried

lawyer advertising since the early 1960s. He noted that such

ads have always been subject to Federal Trade Commission

("FTC") rules and regulations prohibiting false and misleading

advertising. He also testified that testimonials are one of the

most effective tools available to advertisers, and that banning

them decreases the effectiveness of the advertisements, and

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hereby lessens the revenue of his station and of other sta-

tions who are members of the Mississippi Association of

Broadcasters.

The Court also received into evidence the deposition of

Dan Modisett, president elect of the Mississippi Association of

Broadcasters, past president of Jackson Broadcasters, and

past president of Greater Jackson Advertising. His testimony

was similar to Kellogg's, as he noted the difficulties in cre-

ating effective thirty second television or radio advertise-

ments, given the restrictions of the new Rules. He stated that

the interests of the media Plaintiffs in this case is two-fold, in-

cluding loss of potential advertisements, and reduction in

First Amendment rights to broadcast information to viewers.

He also noted that all lawyer advertising, like other advertis-

ing, is subject to FTC regulations restricting false or mislead-

ing advertising, and that his station had never received any

complaints from the FTC about lawyer advertising.

Finally, the Court heard from Evans Harrington, a retired

English professor and member of Public Citizen, Inc. He

stated that he had seen lawyer advertisements in Oxford,

Mississippi, and that a reduction in lawyer advertising would

personally affect him, as he found the ads he had seen to be

instructive about the law and about lawyers themselves.

2. Defendants’ Case-in-Chief

Defendants offered two witnesses. Professor Richard

Mizerski, professor of marketing at Florida State University,

testified that lawyer advertising is different from other forms of

service advertising because (1) it is difficult for non-lawyers to

evaluate the performance of lawyers; (2) legal "business" has

more risk than other forms of personal service because

money and emotions are often involved; (3) the search for

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lawyers by individuals tends to be a limited one, since people

often stay with the first lawyer they visit; and (4) people are

hesitant to terminate the services of lawyers. His testimony

on the new Rules was consistent with Defendants’ "facial

Challenge" defense theory. He stated that the practices

barred by each of the new Rules could be misleading under

some circumstances. He stated that the use of performance

results and background voices "could be misleading,” that the

use of more than one voice "could conceivably be mislea-

ding," that the use of slogans "can be misleading," and that

the use of celebrity voices was a "potentially misleading de-

vice." On cross examination he admitted that he could "con-

ceive of ads that are not deceptive," containing each of the

proscribed practices. He also stated that the FTC permits

each of the banned advertising techniques.

The second and final defense witness was W. Scott

Welch, Ill, President of the Mississippi Bar Association. He

explained the involvement of the State Bar in lawyer advertis-

ing, including the appointment of a task force to Study adver-

tising, the holding of hearings statewide, the initial proposal of

rules and subsequent modification in response to objections

from advertising attorneys, and the final adoption of the new

Rules by the Mississippi Supreme Court. He explained the

specific concerns which the Bar had over the possible mis-

leading or deceptive effect of each of the techniques pro-

scribed by the Rules, and, like Professor Mizerski, noted that

all the banned techniques could mislead the public. He also

disagreed with testimony by several of Plaintiff's witnesses

that advertisements do not affect the image of attorneys in the

eyes of the public.

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ili. HOLDING OF THE COURT

A. Defendants Did Not Carry

Their Burden of Proof

The Plaintiffs challenged the new Rules individually and in

toto, and the Defendants had the heavy burden of vindicating

those rules under the Central Hudson standard. To with-

stand constitutional scrutiny, Defendants had to establish that

each of the challenged new Rules directly advances a stated

(and substantial) governmental interest, and is no broader

than reasonably necessary to serve that interest. See Eden-

field, 113S. Ct. at 1800. Stated differently, Defendants had a

constitutionally imposed burden to develop a record demon-

strating that each of the new Rules, and that the Rules in the

aggregate, passed muster under the First Amendment. De-

fendants, however, ignored their burden in their case-in-chief,

believing the onus was on Plaintiffs to prove the new Rules

are unconstitutional.

In pre-trial briefs and in closing arguments, Defendants

admitted that the Court was hearing "dual" cases, one tried by

Plaintiffs under the “as applied" analysis, and one by Defen-

dants under the "facial challenge” analysis. The Defendants

gambled their entire case on the legal assumption that they

only needed to prove that the new Rules could, conceivably,

be applied in a constitutional manner. The Plaintiffs, on the

other hand, placed evidence before the Court that the new

Rules do not necessarily restrict false, misleading or decep-

tive advertising, and that they do not directly advance the

governmental interest claimed. That evidence went

unrebutted.

Having ruled that the Plaintiffs proceeded under the prop-

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ieee een teenie

er legal standard, see supra pp. 8-11, the Court finds itself in

the awkward position of ruling that, though certain of the chal-

lenged rules could conceivably meet the Central Hudson test

for constitutionality, no such evidence was placed before the

Court by the Defendants. The Defendants’ insistence on try-

ing their case under the facial model therefore compels the

Court to hold that the challenged rules, as a total package,

violate the Plaintiffs First Amendment rights to engage in

commercial speech.

B. Plaintiffs’ Relief

1. Declaratory Relief

Title 42 U.S.C. § 1983 and the Declaratory Judgment Act,

28 U.S.C. § 2201, authorize entry of declaratory and injunc-

tive relief necessary to bring state agencies or officials into

compliance with the Constitution. A declaratory judgment is

generally considered a less intrusive form of relief than an in-

junction, Steffel v. Thompson, 415 U.S. 452, 469 (1974), and

"(w]here . . . constitutional violations are found, but state offi-

cials have shown their readiness to meet constitutional re-

quirements, the Court should limit its initial response to a

grant of declaratory relief." Morrow v. Harwell, 768 F.2d 619,

627 (5th Cir. 1985); Texans Against Censorship, Inc. v. State

Bar of Texas, No. 3:94-CV-61, slip op. at 99 (E.D. Tex. Mar.

31, 1995). In Texans Against Censorship, having found that

only two of several challenged rules governing lawyer adver-

tising were unconstitutional, the Court wrote, “In the instant

action, there is no indication that defendants will fail to recog-

nize and protect plaintiffs’ constitutional rights as determined

by this court, or that defendants will ignore the adjudication

rendered herein. Accordingly, injunctive relief is not neces-

sary and only declaratory relief shall be granted." Texans

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Against Censorship, No. 3:94-CV-61, slip op. at 99-100.

Because "injunctive decrees directing state officials are

appropriate only when constitutional violations have been

shown and when the state officials are demonstrably unlikely

to implement the required changes without its [sic] spur,"

Morrow, 768 F.2d at 627, this Court finds that a declaration

that the new Rules are unenforceable should be sufficient to

protect Plaintiffs’ First Amendment rights. The Court draws

support for its conclusion from its review of the Consent Order

providing for a moratorium on enforcement of the new Rules

with two exceptions, and on the compliance with that order by

the Defendants in this case.

.2. Attorney's Fees and Costs

Title 42 U.S.C. §1988 provides that, in §1983 actions, "the

court, in its discretion, may allow the prevailing party, other

than the United States, a reasonable attorney's fee as part of

costs." 42 U.S.C. §1988(b). The Fifth Circuit has ordered an

award of attorney's fees in a civil rights suit alleging violations

of First Amendment rights. Universal Amusement Co., Inc. v.

Vance, 587 F.2d 159, 172-73 (5th Cir. 1978). The Court finds

that Plaintiffs, as prevailing parties, are entitled to recover at-

torney's fees reasonably incurred as a result of this lawsuit.

Though the parties have not briefed this issue, and the Court

welcomes such briefing by both parties upon submission of

fees by Plaintiffs in accordance with Uniform Local Rule 15,

the Court believes whatever fees as are awarded should be

assessed against the State. See, e.g., Scott v. Flowers, 910

F.2d 201, 213 n.25 (5th Cir. 1990) (holding, in lawsuit against

Texas Commission on Judicial Conduct, that award of attor-

ney's fees must be paid by the state and not assessed

against defendants in individual capacity, as the “injunctive

2.

eee

relief sought and won .. . can be obtained from the defen-

dants only in their official capacity as commissioners."):

Echols v. Parker, 909 F.2d 795, 800 (5th Cir. 1990) (holding

State liable for §1988 attorney's fees where county prosecu-

tor, district attorney, and justice court judge were sued in offi-

cial capacities as enforcing agents of unconstitutional state

statute).

V. CONCLUSION

Before the Court in this case were advertising rules which,

whatever their design, had the effect of limiting the commer-

cial speech rights of the lawyer Plaintiffs who wished to ad-

vertise without the restrictions, of the media and advertising

agency Plaintiffs who would have designed, produced and

publicized the advertising, and of public citizens who had the

right to hear the messages of the advertising lawyers. The

Court recognizes that, in different forums, certain of the same

rules that are challenged in the present case have been

upheld as permissible, narrow restraints on speech, promul-

gated to protect substantial governmental interests. See Tex-

ans Against Censorship, Inc. v. State Bar of Texas, No.

3:94-CV-61, slip op. at 99 (E.D. Tex. Mar. 31, 1995). This

Court, however, did not have the benefit of proof offered by

Defendants in support of their burden of showing the constitu-

tionality of the new Rules. The Court therefore must strike

the new Rules as unconstitutional.

IT IS THEREFORE ADJUDGED AND DECLARED that the

Amendments to Rule 7, Information About Legal Services,

Mississippi Rules of Professional Conduct, as promulgated by

the Supreme Court of Mississippi, (attached hereto as Appen-

dix 1) and made enforceable by the Defendants in this action,

are unconstitutional and unenforceable, as applied to Plain

23.

‘cement ceeaalera er es

tiffs and others similarly situated, and as the Officiai Com-

ments to those same Rules indicate the Rules are to be con-

strued and applied.

IT IS FURTHER ORDERED that the Defendants pay all

taxable costs and, as a part thereof, all reasonable and nec-

essary attorney's fees and legal expenses as are allowed un-

der 42 U.S.C. §§1983 and 1988, upon compliance by

Plaintiffs with Uniform Local Rule 15.

SO ORDERED this the 20th day of June, 1995.

s/s William Barbour, CHIEF JUDGE

psm

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