In Re: Amendment of Rule 7.3 of Pa Rules of Professional Conduct

Opinion

IN THE SUPREME COURT OF PENNSYLVANIA

IN RE: : NO. 166 : ORDER AMENDING RULE OF : DISCIPLINARY BOARD PROFESSIONAL CONDUCT 7.3 : : : :

DISSENTING STATEMENT

JUSTICE DONOHUE

I respectfully disagree with the decision of the majority of my colleagues to

adopt the proposed amendment to Rule of Professional Conduct 7.3. Under both the

United States and Pennsylvania Constitutions, commercial speech that is neither

misleading nor related to unlawful activity may be regulated only if, inter alia, the

commercial speech regulation is narrowly drawn. Florida Bar v. Went For It, Inc., 515

U.S. 618, 624 (1995) (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n

of N.Y., 447 U.S. 557, 564-65 (1980)); Commonwealth Bureau of Prof. and

Occupational Aff. v. State Bd. of Physical Therapy, 728 A.2d 340, 343 (Pa. 1999).

This Court has held that this requires commercial speech regulations to be the least

restrictive means of advancing the asserted interest. Commonwealth Bureau of Prof.

and Occupational Aff., 728 A.2d at 343.

As proposed, the rule appears to be wildly over inclusive and will curb more

speech than is necessary to effectuate the goal of the amendment. The proposed amendment does not differentiate between the vast majority of domestic relations

actions and those where there exists the potential that a partner may become violent

when learning of the domestic relations action. In my view, there is a less restrictive

alternative available, as the Court could require that in cases where domestic violence

is a concern, the plaintiff could file a motion to seal the complaint until service upon the

defendant is made. It seems to me that such a rule would accomplish the laudable

goal of the amendment – reducing domestic violence – while also ensuring that it does

not unconstitutionally infringe upon an attorney’s right to commercial speech.

As the proposed amendment does not pass constitutional scrutiny, I dissent.

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