Wilson v. State Bar of Georgia

United States Court of Appeals,

Eleventh Circuit.

No. 96-9116.

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,

STATE BAR OF GEORGIA, Defendant-Appellee,

Forrest L. CHAMPION, JR., Amicus.

Jan. 16, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 4:95-CV-
321-HLM), Harold L. Murphy, Judge.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST*, Senior District Judge.

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

*
Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.
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:

(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

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 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 restraining order and preliminary injunction.1 The primary

argument appellants asserted in support of their motion was that the amendments constituted

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.
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) 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, 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

(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,

266 Ga. 157, 464 S.E.2d 818 (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
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 several grounds. On appeal, appellants challenge only the district court's

holdings as to their First and Fourteenth Amendment claims.

2
The court had previously denied Forrest Champion, Jr.'s motion for leave to file an amicus
brief.
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, 114

S.Ct. 683, 126 L.Ed.2d 651 (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. 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, 113 S.Ct. 305, 121 L.Ed.2d

228 (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, 114 S.Ct. 798,

802, 127 L.Ed.2d 99 (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, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (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 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

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.
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 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, 99 S.Ct. 2301, 2308,

60 L.Ed.2d 895 (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 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 Furthermore, the

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
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.

"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, 130 F.3d 1458, 1462 (11th Cir.1997) (quoting Connally v. General Const.

Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (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, 102 S.Ct. 1186, 1190, 71 L.Ed.2d 362 (1982).

In making this determination, we must consider the In re Thomson court's statements concerning

Standard 73. See Village of Hoffman Estates, 455 U.S. at 494 n. 5, 102 S.Ct. at 1191 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

least, the In re Thomson decision would so indicate.
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. 982, 109 S.Ct. 531, 102 L.Ed.2d 563 (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.