Consumers Union of United States, Inc. v. American Bar Ass'n

470 F. Supp. 1055
CourtDistrict Court, E.D. Virginia
DecidedMay 8, 1979
DocketCiv. A. 75-0105-R
StatusPublished
Cited by20 cases

This text of 470 F. Supp. 1055 (Consumers Union of United States, Inc. v. American Bar Ass'n) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consumers Union of United States, Inc. v. American Bar Ass'n, 470 F. Supp. 1055 (E.D. Va. 1979).

Opinions

MERHIGE, District Judge.

This matter comes before this 28 U.S.C. § 2281 three judge district court on remand from the United States Supreme Court for “further consideration in light of Bates v. State Bar of Arizona [433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810].” Consumers Union of the United States, Inc. v. Virginia State Bar, 433 U.S. 917, 97 S.Ct. 2993, 53 L.Ed.2d 1104 (1977). In its order, the Supreme Court vacated this court’s prior judgment, reported at 427 F.Supp. 506 (E.D.Va.1976).

The facts of the instant case were stated at length in Consumers Union of United States, Inc. v. American Bar Association, 427 F.Supp. 506, 508-512 (E.D.Va.1976), and shall, therefore, be recounted now only briefly. Plaintiffs, Consumers Union of United States, Inc. (hereinafter “Consumers Union”) and Virginia Citizens Consumer Council (hereinafter “Consumers Council”), are non-profit consumer organizations which have brought this 42 U.S.C. § 1983 action seeking declaratory and injunctive relief, and reimbursement from defendants for their costs and attorney fees incurred in prosecuting this action.

Defendants, Virginia State Bar (hereinafter “State Bar”), the Supreme Court of Virginia, Howard W. Dobbins, Rothwell J. Lillard and the Honorable Lawrence W. I’Anson, were all responsible, in varying degrees, for the adoption, interpretation, and/or enforcement of the Code of Professional Responsibility of the Virginia State Bar.1

In 1974, plaintiff Consumers Union, through questionnaires, sought to elicit certain information from all Arlington County, Virginia attorneys who were licensed to practice law in Virginia; Consumers Union planned to use the information it received in publication of a directory that was intended to help consumers select and evaluate Arlington County attorneys. Much of the information which Consumers Union solicited and planned to publish in the directory, however, was data which, if disseminated to the public, would violate certain Vir[1058]*1058ginia Code of Professional Responsibility (hereinafter “State Bar Code”) Disciplinary Rule 2-102(A)(6) prohibitions on lawyer advertising.

Plaintiffs, recognizing that few, if any, Arlington County attorneys would risk professional disciplinary sanctions by sending information for use in a publication which would violate State Bar Code rules, “. . . seek a declaration that the defendants have violated the First and Fourteenth Amendment rights of the plaintiffs and their members to gather, publish and receive factual information in reference to attorneys practicing in Arlington County, Virginia, and seek additionally an injunction permanently enjoining the enforcement and operation of [State Bar Code Disciplinary Rule 2-102(A)(6)]. . Jurisdiction over the action is premised on 28 U.S.C. § 1343(3).” Consumers Union, supra, 427 F.Supp. at 508.

First Amendment Claims:

In this Court’s previous, now vacated opinion, the majority held that both the non-fee information2 and the information on attorneys’ initial consultation fees which plaintiffs sought to include in their directory was commercial speech protected by the First Amendment, and made applicable to the states through the Fourteenth Amendment. This Court found that State Bar Code Disciplinary Rule 2-102(A)(6) (hereinafter “State Bar Code DR2-102(A)(6)” or “DR2-102(A)(6)”) was overbroad and unconstitutionally infringed upon plaintiffs’ rights to receive and gather consumer information. The Court therefore permanently enjoined defendants from enforcing the State Bar Rules and Regulations against publishing such information. Consumers Union, supra, 427 F.Supp. at 523.

Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), reinforces our prior opinion as to the unconstitutionality of the State Bar Rules’ prohibition against publication of both the non-fee information and attorneys’ initial consultation fees information at issue in this case. The Court therefore reinstates and reissues its original opinion and order as to these issues. See Consumers Union, supra, 427 F.Supp. at 517-523.

Furthermore, in light of Bates, this Court holds that plaintiffs are entitled to gather and publish, and their members are entitled to receive, truthful information as to the fees at which the listed lawyers will perform the routine legal services enumerated in plaintiffs’ questionnaire.3

The heart of the dispute before us today is whether lawyers may constitutionally advertise the prices at which certain routine services will be performed . whether the State may prevent the publication in the newspaper of appellants’ truthful advertisement concerning the availability and terms of routine legal services. We rule simply that the flow of such information may not be restrained

Bates, supra, 433 U.S. at 367-68, 384, 97 S.Ct. at 2701-2709. (Emphasis in original).

Attorneys Fees:

Plaintiffs have asked this Court to grant them reasonable counsel fees, as well as their costs in prosecuting this action. Defendants have not opposed plaintiffs’ motion that defendants be ordered to pay costs.4 Indeed, it is well established that a [1059]*1059federal court may tax costs against state parties to federal law suits, in the same way that it may tax costs against any other federal court litigant. See e. g., Rule 54(d), Federal Rules of Civil Procedure; Hutto v. Finney, 437 U.S. 678, 696, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 77, 48 S.Ct. 97, 72 L.Ed. 168 (1926); Samuel v. University of Pittsburgh, 538 F.2d 991, 999 (3rd Cir. 1976).
Defendants do contend, however, that this Court may not, or, in the alternative, should not, allow plaintiffs to recover attorneys fees from defendants. The Civil Rights Attorneys’ Fees Awards Act provides that
. In any action or proceeding to enforce a provision of Section . 1983 ... of this Title (42 U.S.C.), . the Court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

42 U.S.C. § 1988 (1976) (emphasis added).

Despite the broad language of 42 U.S.C. § 1988, giving this Court discretion in “any action or proceeding” under 42 U.S.C. § 1983

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470 F. Supp. 1055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consumers-union-of-united-states-inc-v-american-bar-assn-vaed-1979.