IN THE SUPREME COURT OF FLORIDA Case No: SC04-115 THE FLORIDA BAR, Complainant, v. OLIVER PERRY TANKSLEY, III Respondent. THE FLORIDA BAR S ANSWER BRIEF AND INITIAL BRIEF ON CROSS-PETITION FOR REVIEW On Review of Final Report of Referee Barry Richard Debra Joyce Davis M. Hope Keating The Florida Bar Greenberg Traurig, P.A. 5521 W. Spruce Street 101 East College Avenue Suite C-49 Post Office Drawer 1838 Tampa, Florida 33607 Tallahassee, FL 33302 Counsel for The Florida Bar
TABLES OF CONTENTS Table of Citations... iii Statement of the Case and of Facts... 1 Summary of Argument... 9 Argument... 10 A. Standard of Review... 10 B. Preliminary Remarks... 11 I. The Rules Regulating The Florida Bar Governing Lawyer Advertising are Constitutional as Applied to Respondent... 11 II. III. The Flyer is Lawyer Advertising Subject to Regulation By The Florida Bar... 19 An Admonishment With Probationary Conditions is the Minimum Appropriate Sanction for Respondent s Violation of the Rules Regulating The Florida Bar... 23 A. The referee s recommended sanction of probationary conditions and referral to a practice and professionalism enhancement program is inconsistent with the applicable standards for imposing lawyer sanctions.... 25 B. The referee s recommended sanction is inconsistent with the case law relating to attorney advertising violations... 28 Conclusion... 32 Certificate of Service... 33 i
Certificate of Compliance... 33 ii
TABLE OF CITATIONS Cases Central Hudson Gas & Elec. Co. v. Public Serv. Comm n 447 U.S. 557 (1980)...12, 17 Florida Bar v. Went-For-It, Inc. 515 U.S. 618 (1995)...12 Ibanez v. Florida Dept. of Business and Professional Regulation 512 U.S. 136 (1994)...16 In re R.M.J. 455 U.S. 191 (1982)...18 Mason v. Florida Bar 208 F.3d 952 (11 th Cir. 2000)...16 National Ass n for the Advancement of Colored People v. Button 371 U.S. 415 (1963)...12 Shapero v. Kentucky Bar Ass n 486 U.S. 466 (1988)...12, 17 The Florida Bar v. Doe 634 So. 2d 160 (Fla. 1994)...19, 20, 21, 28, 29, 30 The Florida Bar v. Greenspan 708 So. 2d 926 (Fla. 1998)...30, 31 The Florida Bar v. Herrick 571 So. 2d 1303 (Fla. 1990), cert. denied, 501 U.S. 1205 (1991)...31 The Florida Bar v. Lord 433 So. 2d 983 (Fla. 1983)...24, 25 The Florida Bar v. Senton 882 So. 2d 997 (Fla. 2004)...10, 11 The Florida Bar v. Spear 887 So. 2d 1242 (Fla. 2004)...10, 11 iii
United Transp. Union v. Michigan Bar 401 U.S. 576 (1971)...12 Zauderer v. Office of Disciplinary Counsel 471 U.S. 626 (1985)... 12, 13, 14, 15, 16, 17 Statutes 448.25(1), Fla. Stat... 1 Rules R. Regulating Fla. Bar 3-5.1...23 R. Regulating Fla. Bar 3-5.1(a)...23 R. Regulating Fla. Bar 3-5.1(b)...23 R. Regulating Fla. Bar 3-5.1(c)...23 R. Regulating Fla. Bar 3-5.1(d)...23 R. Regulating Fla. Bar 3-5.3(h)...23 R. Regulating Fla. Bar 3-5.3(h)(5)...8, 23 R. Regulating Fla. Bar 3-7.6(m)(1)(C)...23 R. Regulating Fla. Bar 4-1.5(d)... 8 R. Regulating Fla. Bar 4-7.1...19 R. Regulating Fla. Bar 4-7.1(a)...22 R. Regulating Fla. Bar 4-7.2(c)(4)...7, 8, 9, 15, 16, 19, 23 R. Regulating Fla. Bar. 4-7.3(b)...7, 8, 9, 15, 16, 19, 23 R. Regulating Fla. Bar 4-7.4(a)... 7 iv
R. Regulating Fla. Bar 4-7.7(a)...7, 8, 9, 17, 18, 19, 23 R. Regulating Fla. Bar 4-7.7(b)(5)... 7, 8 R. Regulating Fla. Bar 4-7.8...20 R. Regulating Fla. Bar 4-7.8(b)...20 v
STATEMENT OF THE CASE AND OF FACTS Respondent mischaracterizes or omits certain crucial facts in his initial brief. Consequently, the facts are restated below. Respondent practices law primarily in the areas of personal injury and labor law. (T:41). In addition to his solo practice, Respondent, along with three other lawyers, recently formed a law firm for the primary purpose of pursuing cases to enforce Florida s Labor Pool Act ( Act ). (Tr. 41-42). Approximately four years ago, Respondent became interested in pursuing cases involving the recovery of statutory damages against labor pools for violating the Act by charging more for transportation than the Act permits. (Bar s Ex. C at 2). The Act provides that in any action brought pursuant to the Act, a worker shall be entitled to recover actual and consequential damages, or $1,000, whichever is greater, for each violation... and costs. 448.25(1), Fla. Stat. On March 28, 2003, Respondent initiated contact with the Florida Coalition for the Homeless ( Coalition ) by sending an e-mail in which he discussed inaccuracies in that organization s website pertaining to the transportation provisions of the Act and stating that he would be happy to discuss this further with you as I handle cases of this sort for laborers. (Bar s Composite Ex. L [email from Tanksley to Coalition dated 3/28/2003]; Tr. 63-64, 84). On the same day, Greg Mellowe, the executive director of the Coalition, responded to 1
Respondent by e-mail expressing interest in working with Respondent to find viable cases involving violations of the Act. (Bar s Composite Ex. L [email from Coalition to Respondent of 3/28/2003]). Respondent responded by e-mail on the same day indicating that he was indeed interested in representing people in cases against labor pools and that he was interested in seeing potential clients. (Bar s Composite Ex. L. [e-mail from Tanksley to Coalition of 3/28/2003]). Respondent asked Mr. Mellowe to call him. Id. At some point during their communications, Respondent suggested to Mellowe that if he obtained a number of clients, he would perhaps be able to bring a class action. (Bar s Ex. C at 4; see also Bar s Composite Ex. L [e-mail from Tanksley to Coalition of 5/5/2003]). On April 10, 2003, Mr. Mellowe sent an e-mail to individuals involved in homeless organizations in Sarasota, where Respondent practices law, indicating that he (Mellowe) had had several conversations with Respondent and that Respondent wants to take cases... wants to get paid. (Bar s Composite Ex. L [e-mail from Coalition to Baar and Charney of 4/10/03]). Mr. Mellowe requested help in identifying cases and in getting folks over to [Respondent]. Id. Mr. Mellowe indicated that he could prepare flyers to help get the word out. Id. Subsequently, on April 17, 2003, Mr. Mellowe sent an e-mail to these same individuals and to Respondent attaching a draft flyer. (Tr. 67, 84). The e-mail stated in whole: 2
Hi. Just continuing our thread relating to labor pool violation cases. I hope I answered everyone s individual questions about why we need to be doing this. Attached is a draft flyer, which may need a lot of work, but I am under a lot of time constraints at the moment. However, I d really like to help start the flow of traffic to [Respondent]. Please look this over and let me know your thoughts. I am also not clear about any limitations on our restrictions to advertise the services of a particular attorney. Perhaps [Respondent] will shed some light on that. Any ideas about how to prime the pump on this appreciated. Regards, Greg (Bar s Composite Ex. L [e-mail from Coalition to Tanksley, Charney and Baar of 4/17/2003]). Respondent responded to Mr. Mellowe by e-mail dated April 21, 2003, stating that he would just like to get 8-10 more clients and that [w]hile you may be most interested in the reform aspect, during the litigation I will necessarily be primarily interested in enforcement of the law to obtain the maximum gain for each of my particular clients. (Tr. 72-73; Bar s Composite Ex. L [e-mail from Tanksley to Coalition of 4/21/2003]). He thanked Mr. Mellowe for the flyer concept and stated that he had amended the text slightly and would fax the finished product to him. Id. In fact, Respondent revised the flyer substantially including the addition of his name and telephone number. (Tr. 67-69, 87-90; Bar s Ex. C at attachment; Bar s Ex. B). Respondent s revisions resulted in the flyer s final form. (Tr. 69, 3
71; Bar s Ex. C at 5). Respondent did not immediately fax his revised and final version of the flyer to Mr. Mellowe, but rather sent it to him by e-mail several days after he had personally hand-delivered the flyer to local homeless organizations. (Bar s Composite Ex. L [e-mail from Tanksley to Coalition of 4/28/2004 (Respondent stating that he was proceeding to locate the necessary clients and had already met with Sandy Baar and Robert Kyllonen) and e-mail from Tanksley to Coalition of 5/5/2003 (transmitting final version of the flyer)]). When Respondent eventually transmitted the final version of the flyer to Mr. Mellowe in the May 5, 2003 e-mail, he stated that I did not send you my flyer which is clearly based on the one you created, but it is attached.... (Bar s Composite Ex. L [email from Tanksley to Coalition of 5/5/2003]; T:78). Mr. Mellowe did not ask Respondent to distribute the flyers or to deliver the copies to anyone. (Tr. 91-92). However, after revising the flyer, Respondent initiated contact with Sandra Baar, Executive Director of the Sarasota County Coalition for the Homeless, by calling her on the telephone and stating that he wanted to get together to discuss the flyer. (Tr. 113). Respondent met with Ms. Baar in person, and during the course of that meeting gave to her 50-75 copies of the flyer. (Tr. 79, 115). Respondent personally generated these copies of the flyer. (Tr. 78-79). At the meeting, Respondent and Ms. Baar discussed what they could do to get the flyer distributed to people affected by labor pool transportation. (Tr. 4
115-116). Ms. Baar suggested that she could distribute the flyers to places where most of the homeless population would see it, and she also suggested that she could hand the flyers out at her monthly coalition meeting of all the homeless service providers, which is attended by anywhere from 40 to 60 people from different organizations. (Tr. 116). Respondent agreed that such distribution was a good idea. Id. As a result of the meeting, Ms. Baar handed the flyers out at her monthly coalition meeting and posted a flyer at the Resurrection House 1 and one at the Salvation Army. Id. Ms. Baar did not have any knowledge of how the Act is violated other than what the flyer said. (Tr. 120). She would not have changed the flyer without Respondent s permission. (Tr. 125). Respondent also initiated contact with Robert Kyllonen, executive director of the Resurrection House, by calling him on the telephone to schedule an inperson meeting. (Tr. 127). Respondent met with Mr. Kyllonen at Mr. Kyllonen s office and the purpose of the meeting was to introduce Mr. Kyllonen to the flyer. (Tr. 128). Respondent gave Mr. Kyllonen a copy of the flyer and Respondent inquired about whether Mr. Kyllonen could post the flyer at his facility. (Tr. 128-129). Although Mr. Kyllonen initially declined to post the flyer at the Resurrection House, he later agreed for Ms. Baar to hang it on the bulletin board. (Tr. 129-130). 1 The Resurrection House is a day resource center for homeless people in Sarasota. (Tr. 127). 5
Mr. Kyllonen s first knowledge of the potential violations of the Act came from Respondent during their meeting. (Tr. 129). In addition to personally delivering the flyer to homeless organizations, Respondent gave his stamp of approval and authorization to disseminate the flyer. (Bar s Ex. C at 1; Tr. 70, 90, 92). Respondent transmitted the final version of the flyer to Mr. Mellowe and it was mutually agreed that the flyer could be distributed. (Tr. 71, 90). Mr. Mellowe would not have distributed the flyer if Respondent had been uncomfortable with it. (Tr. 92). Respondent also may have personally given the flyer to a client who had seen it. (Bar s Ex. C at 5). Because of the flyer, Respondent received calls from 20 potential clients. (Bar s Ex. C at 5). He actually obtained 10-12 clients because of the flyer. Id.; (Tr. 74). On June 26, 2003, Respondent e-mailed Mr. Mellowe that I now have some very good clients, thanks to the flyers.... (Bar s Composite Ex. L [e-mail from Tanksley to Coalition of 6/26/2003]). It was always the understanding of Mr. Mellowe and the other homeless organization representatives involved that Respondent would be compensated if he successfully represented a client. (Tr. 91, 117, 131). Respondent was going to be paid on a contingent fee basis by the clients he obtained as a result of the flyer. (Tr. 73). 6
By letter dated July 7, 2003, counsel for The Florida Bar requested that Respondent state his position on Rules 4-7.2(c)(4), 4-7.3(b), 4-7.4(a), 4-7.7(a) and 4-7.7(b)(5) in relation to the flyer. (Bar s Ex. A). Respondent provided a response by letter dated August 7, 2003. (Bar s Ex. C). Thereafter, counsel for the Bar requested that Respondent file the flyer, his August 7, 2003 response, and a $250.00 late filing fee with the Bar s Standing Committee on Advertising stating that an opinion letter would be issued by the Bar s office of Ethics and Advertising. (Bar s Ex. D). However, rather than file the flyer with the Committee for an opinion as requested, Respondent took the position that the flyer did not come within the ambit of the Bar s advertising rules and asked that Bar counsel provide him with authority that the posting of the flyer absent [his] payment or control was attributable to him. (Bar s Ex. E). 2 At this point, in September 2003, Respondent s file was forwarded to the Statewide Advertising Grievance Committee. (Bar s Ex. F; Ex. G). Subsequently, Respondent informed The Florida Bar by letter dated October 15, 2003, that he had recently decided not to proceed further in representing [his] clients who responded to the flyer pending a positive resolution of the instant complaint against [him]. (Tr. 76-77; Bar s Ex. H). Respondent further stated that 2 Eventually, on December 23, 2003, Respondent finally filed the flyer with the Committee. (See Bar s Ex. J). On January 5, 2004, the Bar s office of Ethics and Advertising issued an opinion that the flyer violated Rules 4-7.2(c)(4) and 4-7.3(b). Id. 7
he would like to have prospects of remuneration if successful, but given the prospect that he might be found in violation of Rule 4-1.5(d) of the Rules Regulating The Florida Bar 3 he would have no such incentive to continue the attorney-client relationship. Id. However, despite his statements to the contrary, Respondent did not actually terminate his representation of the clients responding to the flyer until May of 2004. (Tr. 75). He did not actively represent these clients after he was notified of the Bar s proceedings against him. Id. Following a finding of probable cause by the Statewide Advertising Grievance Committee, in January 2004 the Bar filed a complaint against Respondent. Proceedings were held before a referee who found that Respondent was guilty of violating Rule 4-7.2(c)(4) (flyer failed to contain required disclosure for expenses other than fees); Rule 4-7.3(b) (flyer failed to contain the required disclosure for lawyer advertising); and Rule 4-7.7(a) (Respondent failed to file the flyer with the Bar s Standing Committee on Advertising). Report of Referee at 2. 4 The referee recommended, pursuant to Rule 3-5.3(h)(5), that Respondent be referred to a practice and professionalism enhancement program with probationary 3 Rule 4-1.5(d) provides that contracts for attorneys fees between an attorney and client will ordinarily be enforceable... unless... obtained through advertising or solicitation not in compliance with the Rules.... R. Regulating Fla. Bar 4-1.5(d). 4 At the final hearing, The Florida Bar voluntarily withdrew a charged violation of Rule 4-7.7(b)(5) (requiring a filing fee of $100 for advertisements timely filed and $250 for advertisements not timely filed). Report of Referee at 2. 8
conditions. Id. at 3. The referee also recommended that Respondent attend The Florida Bar s Advertising Workshop and pre-file all advertisements with The Florida Bar s Standing Committee on Advertising for one year. Id. The referee taxed costs against Respondent in the amount of $2,832.36. Id. at 4. Respondent filed a petition for review with this Court and the Bar filed a cross-petition on the issue of the recommended discipline. SUMMARY OF ARGUMENT This case does not involve private, political or noncommercial speech. This case pertains to lawyer advertising which is commercial speech accorded only limited protection under the United States Constitution. The United States Supreme Court has held that disclosure requirements in lawyer advertising are constitutional so long as the disclosure requirements are reasonably related to a substantial state interest and not unduly burdensome. The disclosure requirements in Rules 4-7.2(c)(4) and 4-7.3(b) meet this constitutional standard and are constitutional as applied to Respondent. The United States Supreme Court has also indicated that lawyer advertising filing requirements more stringent than those found in Rule 4-7.7(a) are a constitutional restriction of commercial speech. The flyer is a lawyer advertisement subject to regulation by The Florida Bar. The flyer advertised Respondent s availability to provide legal services and was directed at prospective clients and distributed to the public. Significantly, 9
Respondent participated in the development and distribution of the flyer. Also, the flyer meets the criteria for lawyer advertisements set forth by this Court. The referee s recommended sanction for probationary conditions and referral to a practice and professionalism enhancement program is inconsistent with the applicable standards for imposing lawyer sanctions and is inconsistent with case law relating to attorney advertising violations. The appropriate discipline for the Respondent s advertising violations is at least an admonishment, with probationary conditions that Respondent attend The Florida Bar s Advertising Workshop and pre-file all advertisements with The Florida Bar s Standing Committee on Advertising for one year. ARGUMENT A. Standard of Review A referee s findings of fact, and conclusions concerning guilt, carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. The Florida Bar v. Spear, 887 So. 2d 1242, 1245 (Fla. 2004); The Florida Bar v. Senton, 882 So. 2d 997, 1001 (Fla. 2004). If the referee s findings are not clearly erroneous and are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Id. However, because it is this Court s ultimate responsibility to determine the appropriate sanctions, it has 10
broader discretion when reviewing the referee s recommended discipline. Spears, 887 So. 2d at 1246; Senton, 882 So. 2d at 1003. B. Preliminary Remarks Respondent places great emphasis on the fact that the flyer in question was targeted at the homeless population. However, the particular targeted constituency of potential clients provides no excuse for a member of The Florida Bar not to comply with the Rules Regulating The Florida Bar. Respondent also attempts to cast his actions with regard to the flyer in an altruistic light as if the flyer were a public service announcement and as if his representation of clients obtained as a result of the flyer was on a pro bono basis. This is simply not the case. This is not a matter involving an attorney representing homeless individuals pro bono. Here, Respondent fully expected to be compensated for his efforts and at no time did anyone in the homeless provider organizations involved believe otherwise. In fact, Respondent was looking for clients to form a class action. He entered into contingency fee arrangements with 10-12 individuals as a result of the flyer. Respondent had a pecuniary and commercial interest in the flyer. 11
I. The Rules Regulating The Florida Bar Governing Lawyer Advertising are Constitutional as Applied to Respondent This case does not involve noncommercial or core speech so as to invoke the constitutional standards applicable to fully protected expression. 5 The speech at issue in this case is lawyer advertising which is commercial expression, and as such, is accorded only a limited measure of First Amendment protection. E.g., Florida Bar v. Went-For-It, Inc., 515 U.S. 618, 623 (1995); Shapero v. Kentucky Bar Ass n, 486 U.S. 466, 472 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637 (1985); Central Hudson Gas & Elec. Co. v. Public Serv. Comm n, 447 U.S. 557, 563 (1980). A state may ban commercial speech that is false, misleading or deceptive. 6 Central Hudson, 447 U.S. at 563-64. Although commercial speech that is not false, deceptive, or misleading may not be banned, it may be regulated and restricted. Id. at 564-65. To this end, a state may restrict 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 5 As such, the cases cited by Respondent in his initial brief, National Ass n for the Advancement of Colored People v. Button, 371 U.S. 415 (1963) and United Transp. Union v. Michigan Bar, 401 U.S. 576 (1971), have no significance to the case at bar. 6 Contrary to the assertion in Respondent s initial brief (Initial Br. at 10, 15), the Bar has never admitted or conceded that Respondent s flyer was not false, misleading or deceptive. Rather, the Bar only maintained in its interrogatories and admissions that the Bar s complaint did not allege that the flyer was false, misleading or deceptive. 12
serve that interest. Id. (suggesting that disclosure requirements are an acceptable less restrictive alternative to actual suppression of speech). Further, and more specifically for the purposes of the instant case, under current United States Supreme Court precedent, required disclosures in attorney advertising will be upheld so long as the disclosure requirements are reasonably related to the state s substantial interest and so long as the disclosures are not unduly burdensome. Zauderer, 471 U.S. at 650-51. The Bar s attorney advertising rules requiring disclosures as applied to Respondent meet this constitutional standard. In Zauderer, the United States Supreme Court reviewed a state s regulation requiring an attorney who advertises his or her availability on a contingent-fee basis to disclose whether percentages are computed before or after deduction of court costs and expenses. 471 U.S. at 633. One of the advertisements at issue stated [i]f there is no recovery, no legal fees are owed by our clients. Id. at 631. In addressing the reasonableness of the disclosure requirement as applied to the advertisement the Court explained that: Appellant... suggests that the State must establish either that the advertisement, absent the required disclosure, would be false or deceptive.... ***... Appellant, however, overlooks material differences between the disclosure requirements and outright prohibitions on speech.... Ohio has not attempted to prevent attorneys from conveying 13
information to the public; it has only required them to provide somewhat more information than they might otherwise be inclined to present. ***... Ohio has not attempted to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. The State has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available. Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant s constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser s interests than do flat prohibitions on speech, warning[s] or disclaimer[s] might be appropriately required... in order to dissipate the possibility of consumer confusion and deception. ***... We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser s rights are adequately protected as long as disclosure requirements are reasonably related to the State s interest in preventing deception of consumers. Zauderer, 471 U.S. at 650-51 (emphasis in last sentence added) (citations omitted). The Court noted that the advertisement made no mention of the distinction between legal fees and costs. Id. at 652. The Court stated that the state s position that it is deceptive to employ advertising that refers to contingent fee arrangements without mentioning the clients liability for costs was reasonable enough to support 14
a requirement that information regarding the clients liability be disclosed. Id. at 653. The Court upheld the validity of the disclosure requirement. Id. Rule 4-7.2(c)(4) of the Rules Regulating The Florida Bar, provides that: Disclosure of Liability For Expenses Other Than Fees. Every advertisement and written communication that contains information about the lawyer s fee, including those that indicate no fee will be charged in the absence of a recovery, shall disclose whether the client will be liable for any expenses in addition to the fee. R. Regulating Fla. Bar 4-7.2(c)(4). Rule 4-7.3(b) of the Rules Regulating The Florida Bar, provides in pertinent part that: Disclosure Statement. Except as otherwise provided in this subdivision, all advertisements other than lawyer referral service advertisements shall contain the following disclosure: The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. R. Regulating Fla. Bar 4-7.3(b). Here, the flyer at issue does not contain the cost disclosure required by Rule 4-7.2(c)(4). It only states that [Respondent] will not charge for his services, except a percentage of any amount successfully recovered. (Bar s Ex. B). Like the advertisement in Zauderer, the flyer makes no distinction between legal fees and costs and does not disclose what a client s liability will be for costs whether or not there is a successful recovery. The flyer also does not contain the hiring disclosure requirements of Rule 4-7.3(b). (Bar s Ex. B). 15
Both of the disclosure requirements of Rules 4-7.2(c)(4) and 4-7.3(b) are reasonably related to the state s substantial interests in preventing deception of consumers of legal services, and in protecting such consumers by allowing them to make informed judgments in hiring an attorney to handle their legal needs. Moreover, the disclosure requirements in the rules place only a slight burden on Florida lawyers, including Respondent. 7 A lawyer s rights are adequately protected as long as the disclosure requirements are reasonably related to the state s interest in preventing the deception of consumers and are not unduly burdensome. Zauderer, 471 U.S. at 651. Hence, pursuant to controlling precedent, requiring Respondent to adhere to the disclosure requirements of Rules 4-7.2(c)(4) and 4-7.3(b) is not violative of his right to commercial free speech nor offensive to the First and Fourteenth Amendments to the United States Constitution. By requiring that Respondent adhere to these rules as other Florida attorneys must do, the Bar has not unconstitutionally applied these rules to Respondent. 8 7 Compare Ibanez v. Florida Dept. of Business and Professional Regulation, 512 U.S. 136, 146 (1994) (finding unduly burdensome the requirement that certified financial planners including a specialist designation on an advertisement disclose, among other things, the requirements for recognition by the agency that certified her as a specialist including, but not limited to, education, experience, and testing). 8 Mason v. Florida Bar, 208 F.3d 952 (11 th Cir. 2000), which is cited by Respondent in his initial brief, is readily distinguishable from the matter at hand. Among other things, Mason involved an advertisement disclosure requirement that was placed on an individual lawyer pursuant to an ethics advisory opinion, not a 16
part that: Rule 4-7.7(a) of the Rules Regulating The Florida Bar, provides in relevant Filing and Advisory Opinion. Subject to the exemptions stated in rule 4-7.8, any lawyer who advertises services through any public media or through written communications sent in compliance with rule 4-7.4 or 4-7.6(c) shall file a copy of each such advertisement with the standing committee on advertising for evaluation of compliance with these rules. The copy shall be filed either prior to or concurrently with the lawyer s first dissemination of the advertisement or written communication and shall be accompanied by the information and fee specified in subdivision (b) of this rule. R. Regulating Fla. Bar 4-7.7(a). The United States Supreme Court has suggested that filing requirements more stringent than that found in Rule 4-7.7(a) are a reasonable and effective mode of regulating commercial advertising. In Central Hudson, the Court suggested that the Public Service Commission of New York might consider a system of previewing advertising as an appropriate regulation of commercial speech. 447 U.S. at 571 n.13. Later in Zauderer, the Court again suggested that a state may require a system of previewing advertising campaigns to ensure that they will not defeat state restrictions. 471 U.S. at 668 n.13. (Brennan, J. and Marshall, J, concurring). See also Shapero, 486 U.S. at 476 (stating that with regard to the Rule that is applicable to, and places an insignificant burden on, all Florida lawyers. See 208 F.3d at 958 ( [w]e express no opinion whether, in other situations or on a different record, the... insistence on a disclaimer might serve as an appropriately tailored check against deception or confusion, rather than one imposing unduly burdensome disclosure requirements [that] offend the First Amendment (quoting Ibanez, 512 U.S. at 146)). 17
regulation of targeted, direct-mail solicitation by lawyers the State can regulate such abuses and minimize mistakes through far less restrictive and more precise means, the most obvious of which is to require the lawyer to file any solicitation letter with a state agency, giving the State ample opportunity to supervise mailings and penalize actual abuses ); In re R.M.J., 455 U.S. 191, 206 (1982) (noting that a filing requirement of all general mailings by lawyers would be a reasonable way for the state to be able to exercise reasonable supervision over such mailings and that such a requirement is less restrictive than an outright ban on such mailings). Rule 4-7.7(a) requires that, with certain exceptions, a lawyer advertisement must be filed either prior to or concurrently with the advertisement s dissemination. However, the Supreme Court s statements in the cases discussed above indicate that a system of mandated prior review of lawyer advertisements is not a restriction on commercial speech in violation of the United States Constitution. Therefore, the filing requirement of Rule 4-7.7(a), which does not mandate prior review, is in conformity with the United States Supreme Court s intimations with regard to the means by which a state may constitutionally regulate commercial speech. Further, by requiring that Respondent adhere to Rule 4-7.7(a), as other Florida attorneys must do, the Bar has not unconstitutionally applied this 18
rule to Respondent. 9 II. The Flyer is Lawyer Advertising Subject to Regulation by The Florida Bar With regard to the flyer, Respondent does not dispute noncompliance with Rules 4-7.2(c)(4), 4-7.3(b) and 4-7.7(a). Respondent only argues that the flyer is not a lawyer advertisement that may be regulated by The Florida Bar. The rules contained in subchapter 4-7 ( Information About Legal Services ) of the Rules Regulating The Florida Bar apply to advertisements and written communications directed at prospective clients and concerning a lawyer s or law firm s availability to provide legal services. Comment to R. Regulating Fla. Bar 4-7.1. On its face, the flyer in question clearly falls within the ambit of subchapter 4-7. Moreover, the flyer meets the criteria for lawyer advertisements set forth in The Florida Bar v. Doe, 634 So. 2d 160 (Fla. 1994). In Doe, this Court reviewed an article that a lawyer had paid to have published in a newspaper. 634 So. 2d at 161. The subject of the article pertained to the legal issue of what to do in the event a driver is stopped for drunk driving. Id. The lawyer asserted that the article 9 Moreover, the Supreme Court precedent discussed above also indicates that there is no First Amendment violation in requiring Respondent to pre-file his advertisements for one year as a disciplinary measure. Respondent has made no effective argument in his brief on this issue and has cited to no authority to show otherwise. This disciplinary measure is imposed on Respondent because he was found guilty of violating the Rules Regulating The Florida Bar pertaining to advertising and is an appropriate and constitutional sanction. 19
was a public service announcement rather than an advertisement. Id. at 162. The Court agreed that the following criteria could be helpful in distinguishing an advertisement from a public service announcement: Whether the attorney paid to have the article published; Whether the content of the message appears to serve the interests of the attorney as much as or more than the interests of the public; Whether the article contains legal advice; Whether the article concerns a legal subject; Whether the article contains information concerning the attorney s areas of practice, legal background, or experience. Id. 10 The Court stated that [w]e agree that these and other criteria may provide further guidance on this matter. Id. The Court approved the referee s finding that the article constituted an advertisement because (i) the lawyer had paid a fee to have it published; (ii) a substantial portion of the lawyer s business arose from defending persons charged with drunk driving; and (iii) the respondent arranged for his name, occupation, business address, and phone number to be portrayed within the article. Id. at 162-163. With regard to the inclusion of the lawyer s name, occupation, business address and phone number the Court stated that [w]e can conceive of no public service reason for this. Id. at 163. Here, the flyer (i) serves Respondent s interest as much as it does the public; (ii) concerns a legal subject that involves a substantial portion of Respondent s 10 See also R. Regulating Fla. Bar 4-7.8(b) (setting forth criteria for public service announcements which are based on the factors considered by the Court in Doe); see also Comment to R. Regulating Fla. Bar 4-7.8 20
business; and (iii) contains the name, occupation and phone number of Respondent (which Respondent personally added to the flyer); (iv) advises the reader that Respondent may be able to help with the legal subject matter; and (iv) tells the reader to call Respondent. Moreover, unlike the lawyer in Doe who received no new clients as a result of the article, id., Respondent obtained 10-12 clients as a result of the flyer. While Respondent did not pay for the flyer, he personally generated the copies that were distributed. The flyer most definitely meets the advertisement criteria established by the Court in Doe. Despite Respondent s claim to the contrary, the evidence presented at the hearing shows that Respondent had control over the flyer and its distribution. Respondent personally revised the flyer to include, among other things, his name and business telephone number and Respondent s revisions resulted in the flyer s final form. Respondent indicated he was comfortable with the wording of the flyer and gave it his stamp of approval. Before sending the revised version back to Mr. Mellowe at the Coalition, Respondent personally hand-delivered the flyer that he had revised to Sandra Baar and Robert Kyllonen. He initiated contact with both of these individuals by calling them on the phone and setting up a meeting with each to discuss the flyer. He personally generated the 50-75 copies of the flyer he gave to Ms. Baar and discussed with her the flyer s distribution. As a result of the meeting with 21
Respondent, Ms. Baar handed the flyers out at her monthly coalition meeting, normally attended by 40-60 people, and posted a flyer at the Resurrection House and one at the Salvation Army. Neither Ms. Baar nor Mr. Kyllonen were aware of violations of the transportation provisions of the Act prior to contact by Respondent. It was mutually agreed upon by Respondent and Ms. Baar, and also by Respondent and Mr. Mellowe, that the flyer would be distributed. The flyer was directed at prospective clients of Respondent and advertised his availability to provide legal services. Respondent participated in the preparation of the flyer and made arrangements for its distribution to the public. Respondent cannot be allowed to circumvent the advertising rules of the Bar simply because he did not personally deliver the flyer to the prospective clients. The evidence involving the flyer is competent and substantial so as to support the referee s finding that the flyer constitutes a lawyer advertisement subject to the Bar s regulation. Respondent argues that the flyer was not public media and therefore that it is not a lawyer advertisement subject to regulation by the Bar. He bases his argument on Rule 4-7.1(a) which provides a non-exhaustive list of media through which a lawyer is permitted to advertise his or her services to the public. R. Regulating Fla. Bar 4-7.1(a). Rule 4-7.1(a) does not specifically include the word flyer. However, the flyer in question was a printed message conveying the 22
availability of Respondent to provide legal services to prospective clients and was a medium through which such services were advertised to the public. Respondent obtained 10-12 clients as a result of the flyer. The flyer was broadly disseminated to the public and the fact that it was posted inside of non-profit organizations is of no significance. This argument fails and only serves as an attempt to distract the Court s attention away from Respondent s non-compliance with the rules. III. An Admonishment With Probationary Conditions is the Minimum Appropriate Sanction for Respondent s Violation of the Rules Regulating The Florida Bar The referee found Respondent guilty of violating Rules 4-7.2(c)(4), 4-7.3(b), and 4-7.7(a) of the Rules Regulating The Florida Bar, and was therefore required to recommend an appropriate discipline. R. Regulating Fla. Bar 3-7.6(m)(1)(C); R. Regulating Fla. Bar 3-5.1. Rule 3-5.1 provides that "[a] judgment entered, finding a member of The Florida Bar guilty of misconduct, shall include one or more of the following disciplinary measures... " and goes on to list several types of discipline that would fall within the appropriate range in this case: (i) admonishment; (ii) minor misconduct; (iii) probation; and (iv) public reprimand. R. Regulating Fla. Bar 3-5.1(a)(b)(c) and (d). After a finding of guilt, pursuant to Rule 3-5.3(h), Diversion at Trial Level, a referee may also refer a matter to a practice and professionalism enhancement program as part of a disciplinary sanction. Subsection 3-5.3(h)(5) provides: "[n]othing in this rule shall preclude a 23
referee from referring a disciplinary matter to a practice and professionalism enhancement program as part of a disciplinary sanction." R. Regulating Fla. Bar 3-5.3(h)(5). Here, the referee recommended that Respondent be sanctioned by referral to a practice and professionalism enhancement program with probationary conditions that he attend The Florida Bar's Advertising Workshop and pre-file advertisements with the Standing Committee on Advertising for one year following the date of this Court s order approving the referee s report. Report of Referee at 3. The referee's recommended discipline is inconsistent with the facts of this case, as well as the relevant case law and the Florida Standards for Imposing Lawyer Sanctions. An admonishment for minor misconduct, with the same recommended probationary conditions, is the minimum appropriate sanction for Respondent's violation of the rules regulating attorney advertising. In Florida Bar v. Lord, 433 So. 2d 983 (Fla. 1983), this Court recognized that attorney discipline must serve three purposes. First, the judgment must be fair to society, both in terms of protecting the public from unethical conduct, but at the same time not denying the public the services of a qualified lawyer. Lord, 433 So. 2d at 986. Second, the judgment must be fair to the respondent, being sufficient to punish a breach of ethics and at the same time encouraging reformation and rehabilitation. Id. Third, the judgment must be severe enough to deter others who 24
might be prone or tempted to become involved in like violations. Id. The sanction recommended by the referee in this case is insufficient to achieve these objectives. A. The referee's recommended sanction of probationary conditions and referral to a practice and professionalism enhancement program is inconsistent with the applicable standards for imposing lawyer sanctions. The Florida Standards for Imposing Lawyer Sanctions provide a starting point for Bar counsel, referees, and this Court to determine an appropriate sanction in attorney discipline matters. Standard 13.0, "Standards for Imposing Lawyer Sanctions in Advertising and Solicitation Rule Violations," specifically addresses appropriate sanctions for violations of the rules pertaining to advertising and solicitation. Standard 13.1, relating to advertisements, provides in pertinent part that, absent mitigating or aggravating circumstances, diversion to a practice and professionalism program or minor misconduct is appropriate: (a) when a lawyer fails to file an advertisement for review that is otherwise in compliance with applicable rules; (b) when a lawyer negligently fails to include the disclosure statement required for all non-exempt public print media advertisements and no other violation of applicable rules is involved; *** (d) when an advertisement: *** 25
(3) contains a statement concerning fees for legal services but does not disclose the responsibility for costs associated with legal services. The referee found Respondent guilty of violating three advertising rules. These violations fall within the scope of Standard 13.1 cited above. Because Respondent committed multiple violations, an admonishment for minor misconduct is a more appropriate sanction under Standard 13.1 than diversion to a practice and professionalism program. An admonishment is also more appropriate given Respondent's state of mind. Standard 13.0 frequently distinguishes between "negligent" and "knowing" violations of the rules in determining an appropriate sanction. The evidence in this case indicates that Respondent knew that there were potential advertising issues involved with the flyer. In an e-mail to Respondent accompanying the proposed flyer, Mr. Mellowe expressed his concerns about "any limitations on our restrictions to advertise the services of a particular attorney." The e-mail stated, "[p]erhaps [Respondent] will shed some light on that." (Bar s Composite Ex. L [email from Coalition to Tanksley of 4/17/2003]). Respondent subsequently made changes to the proposed flyer, including inserting his name and business phone number. (Tr. 68). Respondent's motivation in preparing and disseminating the flyer was to obtain clients. He did not, however, make any effort to ensure that the flyer complied with the Bar's rules pertaining to attorney advertising. 26
In addition to Standard 13.0, which relates specifically to advertising violations, Standard for Imposing Lawyer Sanctions 7.0 relates to "Violations of Other Duties Owed as a Professional," and provides sanctions appropriate in cases involving false or misleading communication about the lawyer or the lawyer's services, improper communication of fields of practice, improper solicitation of professional employment from a prospective client, unreasonable or improper fees, unlicensed practice of law, improper withdrawal from representation, or failure to report professional misconduct. Although Standard 7.0 does not list the specific misconduct committed by Respondent in this case, it is generally applicable to the professional duties of a lawyer, including the obligation to comply with the rules regulating attorney advertising. Standard 7.3 provides that, absent aggravating or mitigating circumstances, and upon application of the factors set out in Standard 3.0: Public reprimand is appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system. Standard 7.4 provides that, absent aggravating or mitigating circumstances, and upon application of the factors set out in Standard 3.0: Admonishment is appropriate when a lawyer is negligent in determining whether the lawyer's conduct violates a duty owed as a professional, and causes little or no actual or potential injury to a client, the public, or the legal system. 27
According to Standard 3.0, Factors to be Considered in Imposing Sanctions, one of the factors to be considered in imposing discipline is the potential or actual injury caused by the lawyer's misconduct. As noted above, Respondent obtained 10-12 clients as a result of the flyer. The record also shows that, as of the time he learned of the Bar complaint in August 2003, Respondent did no work on behalf of these clients until he ultimately withdrew from representation in May 2004. (Tr. 75-76). Respondent's failure to actively represent these clients for a period of approximately 10 months resulted in at least the potential for harm, if not actual harm, due to the delay of their cases. Respondent violated his duty as a professional by failing to ensure that his advertisement complied with the applicable rules. Pursuant to the Standards, a sanction of at least an admonishment is warranted. B. The referee's recommended sanction is inconsistent with the case law relating to attorney advertising violations. The recommended sanction of probationary conditions and diversion is also inconsistent with the decisions of this Court in cases involving advertising violations. Even relatively minor violations of the advertising rules have resulted in the imposition of an admonishment or a public reprimand. A case factually analogous to the instant case is Doe which is discussed above and in which this Court rejected the respondent's argument that his article was a public service announcement and not an advertisement subject to the Bar's 28
rules regulating attorney advertising. 634 So. 2d at 160. This Court found the respondent guilty of violating former Rule 4-7.2(d) (the article failed to contain the required disclosures for lawyer advertising); former Rules 4-7.2(p) and 4-7.5(b) (respondent failed to submit the article to the Bar's Standing Committee on Advertising); and former Rule 4-7.3(f) (the article was potentially false or misleading in stating that it was not an advertisement). Id. at 162-63. This Court approved the recommended discipline of an admonishment, noting in mitigation the respondent's lack of prior discipline, his prior public service, and unrebutted proof showing that he did not obtain any new clients through publication of the article. Id. at 163. Like the attorney in Doe, Respondent maintained that his flyer was not an advertisement. The referee found, however, that the flyer was an advertisement that falls within the scope of the attorney advertising rules, and recommended that Respondent be found guilty of violating the advertising rules. The rules violated in the instant case are similar to the violations in Doe. Like the attorney in Doe, Respondent failed to include required disclosures, and failed to timely file his flyer with the Standing Committee on Advertising. In Doe, the attorney committed an additional violation by stating in the article that it was not an advertisement. The mitigating factors found by the referee in this case are also similar to those found in Doe. Like the attorney in Doe, Respondent has no disciplinary 29
record. Another mitigating factor in Doe was the respondent's prior public service. Here, the referee noted in mitigation that Respondent undertook the representation of a class of people that other lawyers did not want to represent. However, one of the significant mitigating factors noted by this Court in Doe is not present in this case. Unlike the attorney in Doe, who received no clients from the publication of his advertisement, the record in the instant case established that Respondent obtained approximately 10-12 clients from the posting of his flyer. Based on the factual similarities, the nature of the rules violated, and the mitigating factors, Doe indicates that a sanction of at least an admonishment is appropriate in this case. In several other cases involving minor violations of the advertising rules, this Court has imposed a public reprimand. In Florida Bar v. Greenspan, 708 So. 2d 926 (Fla. 1998), an attorney failed to file a copy of a Yellow Pages advertisement with the Standing Committee on Advertising in violation of former Rule 4-7.5(b). In addition, Greenspan violated Bar rules by failing to respond to the Bar's inquiries concerning his failure to comply with the filing requirement. Id. at 927. His failure to participate in the disciplinary proceedings resulted in the entry of a default judgment. Id. at 927. In addressing an appropriate sanction, this Court stated, "[a] public reprimand is called for here in light of Greenspan's eighteen-year unblemished record as well as the fact that Greenspan's original transgression was rather minor (failure to file an ad with the Standing Committee, 30