Harrell v. Fla. Bar

915 F.Supp.2d 1285

William H. HARRELL, Jr., Harrell & Harrell, P.A., and Public Citizen, INC., Plaintiffs,

v.The FLORIDA BAR, et al., Defendants.

Case No. 3:08–cv–15–J–34TEM.

United States District Court,

M.D. Florida,

Jacksonville Division.

Sept. 30, 2011.

Brian Wolfman, Gregory A. Beck, Public Citizen Litigation Group, Washington, DC, David Michael Frank, David Frank Injury Law, PA, Tallahassee, FL, for Plaintiffs.

Barry Scott Richard, Bridget Kellogg Smitha, Mary Hope Keating, Tallahassee, FL, for Defendants.

ORDER

MARCIA MORALES HOWARD, District Judge.

THIS CAUSE is before the Court on Plaintiffs' Motion for Summary Judgment and Memorandum in Support of Motion (Doc. No. 62; Harrell Motion) filed on November 18, 2010. In addition, on December 17, 2010, Defendants ¹ filed Defendants' Motion for Summary Judgment and Memorandum of Law in Support of Motion and in Opposition to Plaintiff's [sic] Motion for Summary Judgment (Doc. No. 65; Bar Motion). Harrell filed Plaintiffs' Response to Defendants' Motion for Summary Judgment and Reply in Support of Plaintiffs' Motion for Summary Judgment (Doc. No. 67; Harrell Response) on January 18, 2011. Thereafter, on January 25, 2011, the Bar filed Defendants' Reply Memorandum on Motions for Summary Judgment (Doc. No. 68; Bar Reply). On July 7, 2011, the Court held a hearing on these motions. See Minute Entry (Doc. No. 74; Motion Hearing). Accordingly, this matter is fully briefed and ripe for review.

I. Procedural History

Harrell initiated this action on January 7, 2008, by filing a Complaint for Declaratory and Injunctive Relief (Doc. No. 1; Complaint) against the Bar, asserting, pursuant to 42 U.S.C. § 1983, that certain provisions of The Florida Bar's Rules of Professional Conduct contained within the Rules Regulating The Florida Bar (Rules) violate the First and Fourteenth Amendments, and seeking to invalidate these rules and restrain further enforcement of the provisions at issue. See Complaint at 2–3. In the Complaint, Harrell alleged: (1) “a broad facial challenge that nine advertising-related provisions of the [Rules] are so vague as to violate his due process rights,” (2) an as-applied challenge, that “the same rules violate his First Amendment rights by prohibiting him from advertising in a variety of specific ways, including through the use of a slogan—‘Don't settle for less than you deserve,’ ” and (3) that “a requirement that lawyers submit proposed radio and television advertisements to the Florida Bar for review at least twenty days before their dissemination” amounted to an unconstitutional burden on his speech. See Harrell v. Fla. Bar, 608 F.3d 1241, 1247 (11th Cir.2010). On January 28, 2008, the Bar filed a motion requesting that the Court abstain from hearing claims in this matter pertaining to Rule 4–7.5(b)(1)(C) ² “because an amendment to this Rule is currently under consideration.” See The Florida Bar Defendants' Motion to Abstain or in the Alternative Strike and Supporting Memorandum of Law (Doc. No. 12; Motion to Abstain) at 1. However, the Court rejected the Bar's abstention request stating that “[t]his Court is duty-bound to address properly raised constitutional issues, and Defendants' non-committal remark that the Bar may alter a challenged rule does not relieve this Court of its duties.” See Order (Doc. No. 16) (Covington, J.), entered February 29, 2008, 2008 WL 596086.

On May 1, 2008, the Bar filed The Florida Bar Defendants' Motion to Dismiss for Lack of Case or Controversy and Supporting Memorandum of Law (Doc. No. 22; Motion to Dismiss). In the Motion to Dismiss, the Bar argued, among other things, that the Bar's recent approval of Harrell's use of the phrase, “Don't settle for less than you deserve,” rendered the matter moot because Harrell could no longer be disciplined for disseminating any of the advertisements previously submitted to the Bar for approval. See Motion to Dismiss at 3. The Bar reasserted this argument in The Florida Bar Defendants' Motion for Summary Judgment and Memorandum of Law (Doc. No. 25; Motion for Summary Judgment), filed on September 15, 2008. In addition, the Bar maintained that the Florida Bar Board of Governors (the Board) ³ would be petitioning the Florida Supreme Court to amend the Rules to delete Rule 4–7.5(b)(1)(C). Id. at 4–5. Although the Bar did not affirmatively request that the Court abstain from considering Harrell's claims or resolving this action, the Bar did “seem to suggest that an abstention may be more appropriate [at that time] as the amendment process [was] much further along than when they filed the Motion to [Abstain]....” See Harrell v. Fla. Bar (Harrell I), No. 3:08–cv–15–J–34TEM, 2009 WL 6982396, at *6 n. 4 (M.D.Fla. Mar. 30, 2009).

On March 30, 2009, the Court entered an Order (Doc. No. 50) granting summary judgment in favor of the Bar as to all of Harrell's claims. See Harrell I, 2009 WL 6982396, at *31. The Court held that the Board's approval of Harrell's current advertisements rendered Harrell's challenges as to those advertisements moot. Id. Next, with respect to Harrell's proposed advertisements, the Court concluded that, except as to Harrell's prior restraint challenge to Rule 4–7.7(a), Harrell did not have standing to assert his facial and as-applied challenges to the Rules, or, if Harrell did have standing, that those challenges were premature. Id. at *29. Finally, the Court considered the challenge to Rule 4–7.7(a) on the merits and determined that Rule 4–7.7(a) was not an unconstitutional prior restraint. Id. at *31.

Harrell appealed this Court's ruling, and on June 17, 2010, the Eleventh Circuit Court of Appeals affirmed in part, reversed in part, and remanded the matter to this Court “for consideration of Harrell's justiciable claims on the merits.” See Harrell v. Fla. Bar (Harrell II), 608 F.3d 1241, 1271 (11th Cir.2010). Specifically, the Eleventh Circuit held as follows:

Harrell has standing to challenge Rules 4–7.1, 4–7.2(c)(1)(G), 4–7.2(c)(2), 4–7.2(c)(3), and 4–7.5(b)(1)(A) on vagueness grounds, and those vagueness claims are also ripe for review. Further, Harrell's as-applied challenge to the rejection of his slogan “Don't settle for less than you deserve” is not moot. However, although Harrell has standing to challenge all nine of the Bar's identified rules as unconstitutional encroachments on his desired speech, these as-applied claims are not ripe for judicial review, with the single exception of Harrell's attack on Rule 4–7.5(b)(1)(C), prohibiting background sounds other than instrumental music. Harrell's constitutional challenge to the Bar's pre-filing rule, Rule 4.7.7(a)(1)(A), fails because the rule is not a prior restraint and directly serves important state interests in a reasonably well-tailored fashion.

See Harrell II, 608 F.3d at 1271. Upon remand, Harrell filed an Amended Complaint for Declaratory and Injunctive Relief (Doc. No. 59; Amended Complaint) on September 20, 2010, setting forth those claims found to be justiciable in Harrell II. The Bar filed Defendants' Consented Amended Answer to Amended Complaint (Doc. No. 61; Amended Answer) on November 4, 2010. Thereafter, the parties filed the instant cross-motions for summary judgment seeking resolution of this matter. The Court heard argument from the parties at the Motion Hearing on July 7, 2011. At the Hearing, the parties agreed that there are no disputed issues of material fact and that the Court should therefore resolve this matter on summary judgment.⁴

II. Background Facts

The Eleventh Circuit set forth in detail the factual background of this case in Harrell II such that the Court need not restate those facts here. See Harrell II, 608 F.3d at 1247–53. In accordance with the Eleventh Circuit's ruling, the following Rules remain at issue in this lawsuit. Rule 4–7.1 provides general regulations applicable to all types of attorney advertising, including a list of the permissible forms of advertising as well as the types of communications covered by the Rules. The comment to this Rule provides a list of information that may be contained in the advertisement and explains that “regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in a nonsensational manner.” Rule 4–7.1, cmt.

In Rule 4–7.2, the Bar requires certain information and disclosures to be included in all advertisements, provides a specific list of information that may be contained in advertisements, and prohibits advertisements from containing certain types of communications. Harrell challenges in particular Rule 4–7.2(c)(1)(G) which provides that:

[a] lawyer shall not make or permit to be made a false, misleading, or deceptive communication about the lawyer or lawyer's services. A communication violates this rule if it: ... (G) promises results;

Rule 4–7.2(c)(1)(G). Additionally, Harrell contests the validity of Rules 4–7.2(c)(2) and 4–7.2(c)(3) which preclude an attorney from making “statements describing or characterizing the quality of the lawyer's services in advertisements and unsolicited written communications” as well as from including “any visual or verbal descriptions, depictions, illustrations, or portrayal of persons, things, or events that are deceptive, misleading, manipulative, or likely to confuse the viewer.” Rule 4–7.5 governs advertisements published using electronic media, other than computer-based communications, such as television and radio. This Rule provides certain additional restrictions as well as a list of the permissible content for these advertisements. Specifically, Harrell challenges Rule 4–7.5(b)(1)(C) which prohibits the use of “any background sound other than instrumental music,” as well as Rule 4–7.5(b)(1)(A) which prohibits “any feature that is deceptive, misleading, manipulative, or that is likely to confuse the viewer.” Harrell requests that the Court declare these Rules to be unconstitutional and issue a permanent injunction against...