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SPENCER v. HONORABLE JUSTICES OF THE SUPREME COURT

February 1, 1984

W. BOYD SPENCER, III
v.
THE HONORABLE JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA, etc., et al.



The opinion of the court was delivered by: LORD,

 In this § 1983 action, plaintiff seeks a declaration that several provisions of the Pennsylvania Code of Professional Responsibility (Code) are unconstitutional and injunctive relief enjoining their future enforcement. Jurisdiction is conferred by 28 U.S.C. §§ 1331 and 1343(a)(3). Relief is authorized by 28 U.S.C. § 2201.

 Plaintiff, a member of the bar of the Supreme Court of Pennsylvania, is a certified pilot and holds a master's degree in computer science. In an effort to concentrate his practice in the fields of computer law and aviation law, plaintiff wishes to communicate his credentials, through advertisements to the general public and direct mailings to targeted segments of the population and specifically named individuals with legal needs in these areas. Plaintiff contends that the challenged provisions of the Code limit the content as well as the time, place, and manner of lawyer advertising and/or solicitation in violation of the first and fourteenth amendments.

 Defendants, through their exclusive power to supervise the conduct of Pennsylvania attorneys, adopted the Code and are responsible for its enforcement. Violation of any of the Code's disciplinary rules subjects a lawyer to several possible sanctions, including suspension or disbarment from the profession.

 I. Justiciability

 Defendants argue that plaintiff has failed to assert a justiciable case or controversy as required by Article III of the Constitution and the express terms of the Federal Declaratory Judgment Act, 28 U.S.C. § 2201.

 The Supreme Court seems to have equated the Article III "case or controversy" requirement with standing. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 1665, 75 L. Ed. 2d 675, 684 (1983). *fn1"

  To acquire standing to sue under Article III, a plaintiff must possess "a personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691 7 L. Ed. 2d 663 (1962). This requirement assures "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Id.; City of Los Angeles v. Lyons, supra, U.S. , 103 S. Ct. at 1665.

 In determining whether a plaintiff has a sufficient personal stake in the outcome of a controversy, a court must examine whether he "personally has suffered some actual or threatened injury." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S. Ct. 1601, 60 L. Ed. 2d 66 (1979). In the context of declaratory judgments, the facts alleged must show a "substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality." Golden v. Zwickler, 394 U.S. 103, 108, 89 S. Ct. 956, 959, 22 L. Ed. 2d 113 (1969). It is not necessary that a plaintiff first expose himself to arrest or prosecution, but the alleged threats of prosecution must be more than merely "imaginary or speculative." Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974).

 Plaintiff alleges that he intends to engage in conduct proscribed by the disciplinary rules and, further, that his fear of threatened discipline or prosecution for any such violations is more than "imaginary or speculative." *fn2" Plaintiff has every reason to believe that the disciplinary rules he intends to violate would be enforced against him.

 First, in Adler, Barish, Daniels, Levin, etc. v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), appeal dismissed, 442 U.S. 907, 99 S. Ct. 2817, 61 L. Ed. 2d 272 (1979), the Supreme Court of Pennsylvania upheld the constitutionality of the disciplinary rule, challenged by plaintiff in the instant case, which proscribes all lawyers from recommending their own services to non-lawyers who have not sought their advice. See also, In re Oxman, 496 Pa. 534, 437 A.2d 1169 (1981), cert. denied, 456 U.S. 975, 102 S. Ct. 2240, 72 L. Ed. 2d 849 (1982).

 Second, defendants, in pleadings filed with and hearings held before this court, have steadfastly maintained that the challenged disciplinary rules are constitutional. For example, in response to para. 20 of plaintiff's complaint which alleges that plaintiff is precluded from use of direct mail advertising to solicit segments of the general population such as aircraft owners, pilots, and computer users, defendants answered "admitted to the extent that [the disciplinary rule] prohibits solicitation of said segments."

 Third, the parties have entered into a stipulation precluding the Disciplinary Board of the Supreme Court of Pennsylvania from enforcing the challenged disciplinary rules against plaintiff during the pendency of this suit, leaving open the possibility that plaintiff could and would be disciplined when this suit is completed.

 Fourth, the Professional Guidance Committee of the Philadelphia Bar Association, whose function it is to advise lawyers regarding what they may properly do under the Code of Professional Responsibility, stated in a 1980 opinion that it could not advise that one may safely dispatch an individually addressed letter to a stranger for the purpose of securing clients. *fn3"

 Thus, plaintiff harbors a real and legitimate fear of being disciplined for violating the Code of Professional Responsibility.

 Further, plaintiff suffers present injury and an irretrievable loss of first amendment rights to the extent that he obeys the disciplinary rules and thus foregoes his right to engage in arguably protected speech. Plaintiff is thus placed, as was the hapless plaintiff in Steffel v. Thompson, supra, 415 U.S. at 462, "between the Scylla of intentionally flouting state law and the Charybdis of foregoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding."

 In presenting a justiciable case or controversy, plaintiff is not first required to violate the disciplinary rules and risk his legal career on the hope that his constitutional arguments will be accepted in defense of quasi-criminal proceedings. *fn4" This is especially true where the constitutionality of the rules will be reviewed by the very court which promulgated and adopted them, which is here vigorously arguing their constitutionality and which has already held them constitutional. See Adler, Barish, Daniels, Levin, etc. v. Epstein, supra, 482 Pa. 416. In Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), the Supreme Court found that Georgia physicians had standing to challenge the constitutionality of state abortion laws despite the fact that they had never been threatened with prosecution by state officials: "The physician is the one against whom those criminal statutes directly operate . . . [and the] physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Similarly, in Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979), the Court stated that a plaintiff need not first expose himself to actual arrest or prosecution when he "has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and there exists a credible threat of prosecution thereunder." See also Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968) (teacher seeking declaratory and injunctive relief did not have to await criminal prosecution to challenge the state's anti-evolution statute).

 I therefore conclude that plaintiff possesses the requisite personal stake and interest in the outcome of this suit and, further, that there exists a substantial controversy between persons with adverse legal interests of sufficient immediacy and reality to warrant the exercise of jurisdiction by a federal court. This conclusion is supported by Durham v. Brock, 498 F. Supp. 213, 216-17 (M.D. Tenn. 1980), aff'd, 698 F.2d 1218 (6th Cir. 1982), a similar case in which a lawyer challenged the constitutionality of selected provisions of the Tennessee Code of Professional Responsibility. See also Bishop v. Committee on Professional Ethics, etc., 521 F. Supp. 1219 (S.D. Iowa 1981), vacated as moot, 686 F.2d 1278 (8th Cir. 1982) (court asserted jurisdiction without comment in a case in which a lawyer challenged the constitutionality of the provisions of the Iowa Code of Professional Responsibility restricting the content and means of lawyer advertising).

 II. Governing Law

 In Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 762, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976), the Supreme Court extended first amendment protection to speech which did "no more than propose a commercial transaction." A year later in Bates v. State Bar of Arizona, 433 U.S. 350, 383, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), the Court held that lawyer advertising is a form of commercial speech and, as such, it cannot be subjected to blanket suppression.

 In Bates, two attorneys placed a newspaper advertisement listing their fees for certain legal services in violation of the Arizona disciplinary rules' absolute prohibition of any such lawyer advertising. The Court held that lawyers must be permitted to advertise their fees for certain "routine" legal services. Id. at 384. Bates focused on the first amendment's protection of the right of consumers to receive useful commercial information:

 
The listener's interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. See Bigelow v. Virginia, 421 U.S. 809, 44 L Ed 2d 600, 95 S Ct 2222 (1975). And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. See FTC v. Procter & Gamble Co., 386 U.S. 568, 603-604, 18 L Ed 2d 303, 87 S Ct 1224 (1967) (Harlan, J. concurring). In short, such speech ...

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