Wilson v. State Bar of Georgia , 132 F.3d 1422 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 96-9116
________________________________
D.C. Docket No. 4:95-CV-321-HLM
JIM WILSON, individually and on behalf of
all persons similarly situated, ROBERT K.
FINNELL, KENNETH C. FULLER,
KENNETH J. RAJOTTE, individually and on
behalf of all persons similarly situated,
Plaintiffs-Appellants,
versus
STATE BAR OF GEORGIA,
Defendant-Appellee,
FORREST L. CHAMPION, JR.,
Amicus.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________________________________
(January 16, 1998)
Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST*, Senior
District Judge.
________________________
*Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.
HATCHETT, Chief Judge:
Appellants brought this lawsuit pursuant to 42 U.S.C. § 1983 claiming that two of
the Rules and Regulations for the Organization and Government of the State Bar of
Georgia, Standard 73 to Rule 4-102(d) and Rule 4-219(c)(2), constitute impermissible
bills of attainder, abridge their First Amendment rights, and are void for vagueness under
the Due Process Clause of the Fourteenth Amendment. The district court granted
summary judgment for appellee State Bar of Georgia (“the State Bar”), and appellants
now challenge the court’s rulings as to their First and Fourteenth Amendment claims. We
affirm.
I. BACKGROUND
The Rules and Regulations for the Organization and Government of the State Bar
of Georgia govern the conduct of lawyers in that state. The Georgia Supreme Court
adopts and amends the rules and regulations upon recommendation of the State Bar, and
the State Bar enforces them. See, e.g., O.C.G.A. §§ 15-19-30-31, 33-34 (1994); Rules &
Regulations for the Org. & Gov’t of the State Bar of Ga. (“State Bar Rules &
Regulations”), Rule 4-101 (1996). On September 14, 1995, the Georgia Supreme Court,
acting in response to a motion the State Bar filed in 1992, adopted two related
amendments to the rules and regulations. These amendments went into effect on October
15, 1995. The first, Standard 73 to Rule 4-102(d), provides:
A lawyer shall not allow any person who has been suspended or disbarred
under Part IV of these Rules and who maintains a presence in an office
where the practice of law is conducted by the lawyer, to:
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(a) represent himself or herself as a lawyer or person with similar status;
(b) have any contact with the clients of the lawyer either in person, by
telephone, or in writing; or
(c) have any contact with persons who have legal dealings with the office
either in person, by telephone, or in writing.
A violation of this Standard may be punished by disbarment.
State Bar Rules & Regulations, Rule 4-102(d), Standard 73 (emphasis added to language
under challenge). The second, Rule 4-219(c)(2), states in relevant part:
(c)(2) After a final judgment of disbarment or suspension under Part IV of
these Rules, . . . the respondent [the suspended or disbarred lawyer] shall
take such action necessary to cause the removal of any indicia of the
respondent as a lawyer, legal assistant, legal clerk or person with similar
status. In the event the respondent should maintain a presence in an office
where the practice of law is conducted, the respondent shall not:
(i) have any contact with the clients of the office either in person, by
telephone, or in writing; or
(ii) have any contact with persons who have legal dealings with the office
either in person, by telephone, or in writing.
State Bar Rules & Regulations, Rule 4-219(c)(2) (emphasis added to language under
challenge).
In its brief submitted in August 1992 in support of the adoption of these
amendments, the State Bar represented to the Georgia Supreme Court that “[t]he
continued practice of law by disbarred lawyers in this State aided by members of the Bar
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is an all too frequent occur[re]nce.” The State Bar contended that such illicit activity was
difficult to regulate and prosecute. Thus, according to the State Bar,
strict prohibition from client contact is absolutely essential to prevent a
former lawyer from crossing the line from permissible paralegal activities
to giving legal advice, taking fees and misleading the client. Not only does
the client suffer under this scenario but the disciplinary system loses
credibility because of its inability to effectively protect the public from
unethical attorneys even after their disbarment.
The State Bar asserted that several jurisdictions had more stringent restrictions
concerning the activities of suspended or disbarred lawyers. It also stated that the
amendments
do not prevent the disbarred lawyer from performing such law-related tasks
as legal research and drafting. The [amendments] do not restrict the
disciplined lawyer from other types of employment. They are narrowly
drawn to insulate the person who has been disbarred from contact with the
public with respect to legal matters.
(Emphasis added.)
Appellants fall into two classes: (1) “all suspended or disbarred attorneys who are
currently employed by lawyers practicing in the State of Georgia” (hereinafter “disbarred
attorneys”); and (2) “all practicing attorneys who currently employ or wish to employ the
services of suspended or disbarred attorneys in their law offices in the State of Georgia”
(hereinafter “employing attorneys”). On October 12, 1995, in an attempt to enjoin the
State Bar from enforcing the amendments, appellants filed a motion for a temporary
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restraining order and preliminary injunction.1 The primary argument appellants asserted
in support of their motion was that the amendments constituted improper bills of
attainder. Appellants also argued that the amendments, as written, chilled protected
expression and were unduly vague. After conducting a hearing the following day, the
district court denied the motion, concluding that appellants had failed to demonstrate
irreparable harm. The court, however, expressed “a possible concern as to the broadness
of certain language” in the amendments.
On November 20, 1995, the State Bar filed a motion for reconsideration and
clarification in the Georgia Supreme Court, requesting the addition of proposed clarifying
language to the amendments. It appears that the district court’s comments at the October
13 hearing, as well as the fact that the State Bar had “received some telephone inquiries
from bar members regarding activities which may be prohibited by these new rules,”
precipitated the State Bar’s motion. The State Bar proposed that Standard 73 be revised
as follows:
A lawyer shall not allow any person who has been suspended or disbarred
under Part IV of these Rules and who maintains a presence in an office
where the practice of law is conducted by the lawyer, to engage in the
following conduct:
(a) represent himself or herself as a lawyer or person with similar status;
1
Around this time, Kenneth Rajotte, Jim Wilson and Dunham McAllister also filed
a motion requesting the Georgia Supreme Court to reconsider its adoption of the
amendments. The court denied the motion on October 31, 1995. Rajotte and Wilson are
two of the appellants in the present action.
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(b) have any contact with the clients of the lawyer either in person, by
telephone, or in writing; or
(c) have any contact with persons, including but not limited to opposing
parties, lawyers, witnesses, and insurance personnel, who have legal
dealings with the office either in person, by telephone, or in writing.
This Standard shall not be construed in such a manner as to require the
lawyer to prohibit the disbarred or suspended lawyer from:
(1) engaging in social conversation unrelated to the representation or legal
dealings of the lawyer’s office; or
(2) gathering general information in the course of working in the lawyer’s
office which would involve limited contact with suppliers of information
such as law librarians, the Secretary of State, and clerks’ offices.
A violation of this Standard may be punished by disbarment.
The State Bar proposed like changes to Rule 4-219(c)(2):
(c)(2) After a final judgment of disbarment or suspension under Part IV of
these Rules, . . . the respondent shall take such action necessary to cause the
removal of any indicia of the respondent as a lawyer, legal assistant, legal
clerk or person with similar status. In the event the respondent should
maintain a presence in an office where the practice of law is conducted, the
respondent shall not:
(i) have any contact with the clients of the office either in person, by
telephone, or in writing; or
(ii) have any contact with persons, including but not limited to opposing
parties, lawyers, witnesses, and insurance personnel, who have legal
dealings with the office either in person, by telephone, or in writing.
This Rule shall not be construed in such a manner as to prohibit the
disbarred lawyer from:
(i) engaging in social conversation unrelated to the representation of clients
or legal dealings of the law office; or
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(ii) gathering general information in the course of working in a law office
which would involve limited contact with suppliers of information such as
law librarians, the Secretary of State, and clerks’ offices.
The State Bar asserted in its motion that “[t]his proposal does not represent a change in
the substance of the rules as approved by this Court . . . . It is offered as an attempt to
clarify the rules and as an aid to bar members who may wish to employ disbarred or
suspended lawyers in a limited capacity.” The Georgia Supreme Court summarily denied
the motion.
On January 8, 1996, the Georgia Supreme Court addressed Standard 73 in In re
Thomson, 464 S.E.2d 818 (Ga. 1996) (per curiam). The court framed the issue before it
as follows: “The issue in this disciplinary case is whether during his suspension,
Thomson should be subject to Standard 73, which prohibits a lawyer from allowing a
suspended or disbarred attorney in his employ to have substantial client contact.” 464
S.E.2d at 819 (emphasis added). In refusing to grant Thomson an exemption from
Standard 73, the court wrote:
Thomson requests that he be exempted from Standard 73. He states
that he works in a high volume consumer bankruptcy practice under the
supervision of other lawyers; he screens new business calls and trains and
monitors younger lawyers and paralegals; and Standard 73 will prevent him
from performing any of the duties because they all involve client
contact. . . .
If Thomson is granted an exception, this will effectively eviscerate
Standard 73. Thomson’s proposed professional activities -- initial phone
contact with potential clients and supervising young lawyers’ client
contacts -- are inappropriate for a lawyer under suspension for any violation
because of the difficulty in preventing the unauthorized practice of law in
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that setting by the suspended lawyer. Although Thomson claims he will be
unemployable in the bankruptcy area during his suspension, we do not read
Standard 73 so broadly. Thomson may still conduct legal research and
draft memoranda or correspondence for the lawyers in the firm.
464 S.E.2d at 819 (emphasis added).
Appellants’ claims in the district court were broken out as follows. First, the
disbarred attorneys argued that the amendments chilled their protected speech in violation
of the First Amendment. Next, both classes of appellants asserted that the amendments
were void for vagueness and constituted punitive bills of attainder. The parties moved
for summary judgment, and on August 21, 1996, the district court granted the State Bar’s
motion.2 The court first held that the disbarred attorneys “lack standing [under the First
Amendment] because it is unreasonable for them to believe that [in order to avoid
disciplinary sanction] they must forego the, primarily hypothetical, protected speech
raised by their pleadings.” (Footnote omitted.) Second, the court rejected appellants’
void for vagueness argument, holding that (1) “attorneys of reasonable intelligence, both
practicing and disbarred, can derive a core meaning from the [amendments],” and (2)
“Plaintiffs can clarify their uncertainty about the [amendments] by posing questions to
the State Bar . . . and by reading the State Bar’s Motion For Reconsideration and
Clarification.” Finally, the court disposed of appellants’ bill of attainder challenge on
The court had previously denied Forrest Champion, Jr.'s motion for leave to file
2
an amicus brief.
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several grounds. On appeal, appellants challenge only the district court’s holdings as to
their First and Fourteenth Amendment claims.
II. ISSUES
This appeal presents two issues: (1) whether the district court erred in holding that
appellants lack standing to mount a pre-enforcement First Amendment challenge to
Standard 73 and Rule 4-219(c)(2); and (2) whether the district court erred in holding that
these provisions are not void for vagueness.
III. STANDARDS OF REVIEW
Whether appellants have standing to bring suit constitutes a legal issue subject to
de novo review. Jacobs v. The Florida Bar, 50 F.3d 901, 903 (11th Cir. 1995). “When
the attack on standing occurs via a motion for summary judgment, the plaintiffs can no
longer rest on their allegations, but must set forth by affidavit or other evidence specific
facts which for the purpose of summary judgment will be taken as true.” Region 8 Forest
Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993) (internal
quotation marks omitted), cert. denied, 510 U.S. 1040 (1994). In this context, we
evaluate standing “from all materials of record.” E.F. Hutton & Co. v. Hadley, 901 F.2d
979, 983 (11th Cir. 1990) (internal quotation marks omitted).
“Whether a statute, regulation, or local ordinance is unconstitutionally vague is a
question of law that we review de novo.” Dodger’s Bar & Grill, Inc. v. Johnson County
Bd. of County Comm’rs, 32 F.3d 1436, 1443 (10th Cir. 1994); see also San Filippo v.
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Bongiovanni, 961 F.2d 1125, 1133 (3d Cir.) (“The district court's application of the void
for vagueness doctrine . . . is purely an issue of law subject to our plenary review.”), cert.
denied, 506 U.S. 908 (1992).
IV. DISCUSSION
A.
“Standing represents a jurisdictional requirement which remains open to review at
all stages of the litigation.” National Org. for Women, Inc. v. Scheidler, 510 U.S. 249,
255 (1994). The constitutional core of standing contains three elements. The party
invoking federal court authority must show that (1) he or she has personally suffered
some actual or threatened injury as a result of the putatively illegal conduct of the
defendant; (2) the injury can fairly be traced to that conduct; and (3) a favorable decision
is likely to redress the injury. Valley Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464, 472 (1982). Whether the disbarred
attorneys possess standing to sue in this case hinges on the first element, that is, the
existence of an actual or threatened injury. This inquiry is necessarily case-specific.
New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir.
1996).
The disbarred attorneys contend that the provisions at issue chill their protected
speech because they bar “all speech or ‘contacts’ with all members of the designated
groups, under any circumstances, at any time, at any place, and for any reason.” So, for
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example, the disbarred attorneys claim they face sanction if they associate socially with
family members or close friends who also happen to be clients of their employers.
Likewise, they argue that the amendments “prohibit a disbarred lawyer/employee from
speaking on any subject with his doctor, his barber, his auto mechanic, anyone and
everyone who is a client of the law firm employer or who has legal dealings with the
employer.”3 Appellants imply through affidavit evidence that one unnamed disbarred
attorney has forgone constitutionally protected speech due to the existence of the
amendments. The employer of that disbarred attorney averred: “I am presently working
on the campaign of a judge. Although the disbarred attorney who works for me
personally knows the judge, and would like to be involved in the political campaign in
support of the judge . . . , he is reluctant to do so for fear that he might inadvertently fall
afoul of the prohibitions on ‘contact’ contained in the [amended] bar rules.”
In the First-Amendment realm, plaintiffs do not have to expose themselves to
enforcement in order to challenge a law. Jacobs, 50 F.3d at 904. Rather, “an actual
injury can exist when the plaintiff is chilled from exercising her right to free expression
or forgoes expression in order to avoid enforcement consequences.” New Hampshire
Right to Life, 99 F.3d at 13. In such an instance, which is what is alleged here, the injury
3
The record reveals that a disbarred attorney faces two possible forms of
disciplinary action from the State Bar for violating the amendments. First, the State Bar
can refer the disbarred attorney to a state solicitor for prosecution. Second, it can place a
disciplinary report in the disbarred attorney’s reinstatement file, presumably reducing the
disbarred attorney’s chances of again becoming eligible to practice law.
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is self-censorship. See ACLU v. The Florida Bar, 999 F.2d 1486, 1492 (11th Cir. 1993).
When a plaintiff brings a pre-enforcement challenge to a sanctioning statute, regulation
or ordinance, standing exists at the summary judgment stage when the plaintiff has
submitted evidence indicating “an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S.
289, 298 (1979) (emphasis added); see also Graham v. Butterworth, 5 F.3d 496, 499
(11th Cir. 1993); ACLU, 999 F.2d at 1492 (“Under Babbitt, a plaintiff must allege that
either (1) he was threatened with prosecution; (2) prosecution is likely; or (3) there is a
credible threat of prosecution.”). “[I]f no credible threat of prosecution looms, the chill is
insufficient to sustain the burden that Article III imposes. A party’s subjective fear that
she may be prosecuted for engaging in expressive activity will not be held to constitute
an injury for standing purposes unless that fear is objectively reasonable.” New
Hampshire Right to Life, 99 F.3d at 14; see also ACLU, 999 F.2d at 1492 & n.13. While
we agree with the First Circuit’s admonition that the credible threat of prosecution
standard “is quite forgiving,” New Hampshire Right to Life, 99 F.3d at 14, we hold that
the disbarred attorneys have failed to meet it in this case.
The disbarred attorneys practically concede this issue in their brief to this court,
acknowledging that “there was no evidence regarding specific threats or actions as of the
date of the District Court’s Order whereby the State Bar had attempted to enforce the
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Amended Rules against a disbarred attorney for engaging in protected speech.”
(Emphasis omitted.) Moreover, the record indicates that the State Bar has repeatedly and
consistently taken the position that the amendments have no application to the types of
scenarios the disbarred attorneys have posed. “Because [the disbarred attorneys’] alleged
injury is one of self-censorship, the likelihood of disciplinary action by the Bar . . . is an
important factor in determining whether [they] reasonably believed that [they] had to
forego what [they] considered to be constitutionally protected speech in order to avoid
disciplinary charges being brought against [them].” ACLU, 999 F.2d at 1492.
The State Bar’s motion in support of the amendments made clear that the
provisions were “drawn to insulate the person who has been disbarred from contact with
the public with respect to legal matters.” In addition, the State Bar’s motion for
reconsideration and clarification stated that Standard 73 applied to professional
“conduct.” As to both amendments, the motion for reconsideration further defined
“persons” as “including but not limited to opposing parties, lawyers, witnesses, and
insurance personnel.” It also asserted that Rule 4-219(c)(2) did not apply to “social
conversation unrelated to the representation of clients or legal dealings of the law office,”
or to the “gathering [of] general information in the course of working in a law office.”4
4
Appellants argue that they can take no comfort in the motion for reconsideration
because the Georgia Supreme Court denied it. We find this contention meritless. It is the
State Bar, after all, that is the defendant in this case. And, the State Bar expressed the
view in its motion that its proposed revisions did “not represent a change in the substance
of the rules as approved by th[e] Court.” Indeed, this may be the very reason the Georgia
Supreme Court denied the motion -- at least, the In re Thomson decision would so
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Furthermore, the State Bar has informed disbarred attorneys, upon request, about whether
it will sanction them for engaging in certain practices. The record supports the district
court’s finding that the State Bar “has assisted concerned attorneys with questions
regarding” the contours of the amendments. Finally, in its pleadings in the district court
and in its submission to this court, the State Bar has consistently maintained that it will
not sanction disbarred attorneys for engaging in political, religious or social speech.
In sum, the disbarred attorneys’ asserted belief that they have to forego the
constitutionally protected speech they pose in order to avoid sanctions under the
amendments is not objectively reasonable. Accordingly, they have failed to show injury,
and thus they lack standing to bring this anticipatory challenge.
B.
“Vagueness arises when a statute is so unclear as to what conduct is applicable
that persons ‘of common intelligence must necessarily guess at its meaning and differ as
to its application.’” United States v. Gilbert, No. 96-9336, slip op. at 956 (11th Cir. Dec.
15, 1997) (quoting Connally v. General Contr. Co., 269 U.S. 385, 391 (1926)). When
addressing a facial challenge to a law on vagueness grounds, “a court’s first task is to
determine whether the enactment reaches a substantial amount of constitutionally
protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 494 (1982). In making this determination, we must consider the In re Thomson
indicate.
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court’s statements concerning Standard 73. See Village of Hoffman Estates, 455 U.S. at494 n.5 (when evaluating the purported vagueness of a state law or regulation, “a federal
court must, of course, consider any limiting construction that a state court . . . has
proffered”). As discussed, the Georgia Supreme Court stated that Standard 73 “prohibits
a lawyer from allowing a suspended or disbarred attorney in his employ to have
substantial client contact.” In re Thomson, 464 S.E.2d at 819 (emphasis added). The
court also rejected Thomson’s “proposed professional activities” -- making initial
telephone contact with potential clients and supervising young lawyers’ client contacts --
because they implicated “the difficulty in preventing the unauthorized practice of law in
[a law office] by the suspended lawyer.” In re Thomson, 464 S.E.2d at 819. We have
little difficulty agreeing with the district court’s conclusion that the amendments govern
occupational conduct, and not a substantial amount of protected speech. “Any
abridgement of the right to free speech is merely the incidental effect of observing an
otherwise legitimate [occupational] regulation.” Lawline v. American Bar Ass’n, 956
F.2d 1378, 1386 (7th Cir. 1992).
“A rule that does not reach constitutionally protected conduct is void for
vagueness only if it is impermissibly vague in all its applications.” Woodruff v. United
States Dep't of Labor, 954 F.2d 634, 643 (11th Cir. 1992) (per curiam). We are mindful
that “[t]he particular context in which a regulation is promulgated . . . is all important.”
Howell v. State Bar of Tex., 843 F.2d 205, 208 (5th Cir.), cert. denied, 488 U.S. 98215
(1988). Consequently, if lawyers or former lawyers of reasonable intelligence can derive
a core meaning from the amendments, then the amendments “may validly be applied to
conduct within that meaning and the possibility of a valid application necessarily
precludes facial invalidity.” High Ol’ Times v. Busbee, 673 F.2d 1225, 1228 (11th Cir.
1982); see also Woodruff, 954 F.2d at 643 (“The test is whether the enactment is
substantially incomprehensible.”).
In rejecting appellants’ vagueness claim, the district court pointed out that the
amendments would obviously preclude a disbarred attorney who reports to work at a
practicing lawyer’s office on a regular basis from (1) arguing a legal matter before a
judge, or (2) negotiating a settlement agreement with opposing counsel. The district
court also noted that disbarred or employing attorneys in need of guidance concerning the
amendments can present questions to the State Bar and study the motion for
reconsideration and clarification. See State Bar Rules & Regulations, Rules 4-401
(Informal Advisory Opinions), 4-403 (Formal Advisory Opinions). We agree with the
district court’s analysis and need go no further, as we are confident that appellants can
derive a core meaning from the amendments.
V. CONCLUSION
For the foregoing reasons, we affirm the district court's judgment.
AFFIRMED.
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