Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board
2011 U.S. App. LEXIS 1922
| 5th Cir. | 2011Background
- Louisiana adopted a process to study and revise attorney advertising via LSCT and LSBA committees; the Supreme Court of Louisiana adopted the proposed Rules into Rule 7 in 2009.
- LSBA proposals drew on New York/Florida rules and public surveys/hearings, including a prohibition on jury portrayal and other tightened rules.
- Federal challenges were filed; district court granted partial summary judgment to both sides; consolidated actions proceeded.
- Plaintiffs challenged six sub-parts of Rule 7.2(c): past results (D), promising results (E), portrayal of non-clients or non-authentic scenes (I), portrayal of a judge or jury (J), nicknames/mottos implying ability to obtain results (L), and disclosure format requirements (10).
- Courts apply Central Hudson and Zauderer to evaluate whether these commercial-speech restrictions are constitutional, using extensive survey and focus-group evidence from Louisiana.
- Court reviews issues de novo and evaluates whether the restrictions are narrowly tailored and reasonably related to preventing deception and preserving ethical standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 7.2(c)(1)(D) prohibiting past results | D ban is overly broad, suppresses truthful, verifiable information. | Past results are potentially deceptive; prohibition protects the public. | Unconstitutional under Central Hudson |
| Rule 7.2(c)(1)(J) prohibiting depiction of a judge or jury | J speech is not inherently deceptive; ban too broad. | Depictions can mislead; restriction needed. | Unconstitutional under Central Hudson |
| Rule 7.2(c)(1)(L) banning nicknames/mottos implying ability to obtain results | Rule lacks sufficient evidence; overbroad. | Nicknames can mislead; regulation warranted. | Constitutional; narrowly drawn to advance substantial interest |
| Rule 7.2(c)(1)(I) requiring disclaimer for client portrayals or reenactments | Disclosures are sufficient; disclaimers are overly burdensome without proof of effectiveness. | Disclosures prevent deception. | Constitutional |
| Rule 7.2(c)(10) font/speaking requirements for disclosures | Font size and time constraints unduly burden short ads. | Disclosures reasonably related to preventing deception. | Unconstitutional; overly burdensome and hinder short advertisements |
Key Cases Cited
- Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (U.S. Supreme Court, 1976) (commercial speech protection and information value)
- Bates v. State Bar of Ariz., 433 U.S. 350 (U.S. Supreme Court, 1977) (advertising by attorneys may be regulated, not suppressed)
- In re R.M.J., 455 U.S. 191 (U.S. Supreme Court, 1982) (allowance of certain factual disclosures in advertising)
- Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S. 626 (U.S. Supreme Court, 1985) (disclosure requirements may be upheld if reasonably related to preventing deception)
- Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (U.S. Supreme Court, 1980) (test for regulation of truthful commercial speech)
- Edenfield v. Fane, 507 U.S. 761 (U.S. Supreme Court, 1993) (stringent evidence required to justify restrictions; Central Hudson applied)
- Went For It, Inc. v. Moore, 515 U.S. 618 (U.S. Supreme Court, 1995) (evidence-based approach to advertising regulation)
- Fox v. Bd. of Trustees of State Univ. of N.Y., 492 U.S. 469 (U.S. Supreme Court, 1989) (voids overly broad restrictions on communications in education context)
- Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010) (upholds/strikes state advertising rules; evidentiary burden important)