In Re Members of the State Bar of Arizona, Bates

555 P.2d 640, 113 Ariz. 394, 1976 Ariz. LEXIS 324
CourtArizona Supreme Court
DecidedJuly 26, 1976
DocketSB-96
StatusPublished
Cited by12 cases

This text of 555 P.2d 640 (In Re Members of the State Bar of Arizona, Bates) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Members of the State Bar of Arizona, Bates, 555 P.2d 640, 113 Ariz. 394, 1976 Ariz. LEXIS 324 (Ark. 1976).

Opinions

CAMERON, Chief Justice.

This matter is before the court on objections to the conclusions of law and recommendations of the Board of Governors of the State Bar of Arizona which held that the respondents John R. Bates and Van O’Steen, attorneys at law, were guilty of violating the disciplinary rules for attorneys as provided in Rule 29(a) of the Rules of the Supreme Court, 17 A.R.S.

We must answer the following questions on review:

1. Does DR 2-101 (B) violate either the federal or state antitrust laws ?
2. Does DR 2-101 (B) violate the First and Fourteenth Amendments of the United States Constitution?
3. Does DR 2-101 (B) violate the Fourteenth Amendment right of equal protection of the law?
4. Is DR 2-101 (B) void for vagueness?
5. Does the State Bar-Disciplinary procedure violate due process?

The facts of this case are not in dispute. John R. Bates and Van O’Steen are law partners engaged in the practice of law under the name of the “Legal Clinic of Bates and O’Steen.” On 22 February 1976, respondents published an advertisement in the Arizona Republic, a newspaper of state-wide and substantial out-of-state circulation, publicizing the availability of their legal services and stating fees for certain services. See Exhibit A.

Disciplinary Rule 2-101 (B) of Rule 29(a) of the Rules of the Supreme Court reads:

“A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or teléphone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf. * * * ”

Respondents admit they knowingly violated DR 2-101 (B).

After complaint, hearing, and findings by a Special Administrative Committee, the Board of Governors made the following findings of fact, conclusions of law, and recommendations:

“This matter having come on for full and final hearing on April 7, 1976, before the Special Administrative Committee of Ivan Robinette, Carl W. Divelbiss, [396]*396and Philip E. vonAmmon, Chairman, and the matter having been heard, evidence having been taken, and briefs having been submitted, and the Board of Governors having reviewed the above matter on April 28, 1976, it is now determined and recommended by the Board as follows:
FINDINGS OF FACT
“The Respondents, John R. Bates and Van O’Steen, did, in fact cause an advertisement for their law office to be published in a Phoenix newspaper, as charged in the Formal Complaint and as admitted in the Answer.
CONCLUSIONS OF LAW
“The act of the Respondents violates Disciplinary Rule 2-101 (B).
RECOMMENDATIONS
“The act of the Respondents was on one hand a deliberate and knowing violation of the Rule, but on the other hand was undertaken as an earnest challenge to the validity of a rule they conscientiously believe to be invalid. We therefore recommend a penalty of one-week suspension from the practice of law for each of them, the weeks to run consecutively and not simultaneously, so as to avoid the closing down of their practice. “We further recommend that the enforcement of this discipline be suspended until 30 days after a final decision has been made concerning the validity of the rule in the highest court to which it is presented.
“The foregoing Findings of Fact, Conclusions of Law, and Recommendations are issued by the Board of Governors this 30th day of April, 1976, pursuant to Rule 36(d) of the Rules of the Supreme Court of the State of Arizona.
/s/ Mark I. Harrison Mark I. Harrison, President State Bar of Arizona ”

Respondents timely objected to the recommendations of the Board of Governors and the matter was transferred to this court pursuant to Rule 36(d) of the Rules of the Supreme Court.

ANTITRUST LAWS

Respondents contend that DR 2-101 violates Sections 1 and 2 of the Sherman Act. 15 U.S.C. § 1, 2 and Arizona antitrust statutes A.R.S. §§ 44-1401 through 44—1413. That a rule is a violation of the federal or state antitrust laws is a defense when the court is being asked to enforce a violation of these rules, Continental Wallpaper Co. v. Louis Voight & Sons Co., 212 U.S. 227, 29 S.Ct. 280, 53 L.Ed. 486 (1909); Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed.2d 165 (1942), and this defense is available in the state court. General Aniline & Film Corp. v. Bayer, 305 N.Y. 479, 113 N.E.2d 844 (1953).

In support of their position, respondents rely heavily on Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed. 2d 572 (1975). In Goldfarb, supra, the Supreme Court held that a county bar’s publication of a minimum fee schedule, and enforcement of this schedule through professional discipline by the state bar, was anti-competitive activity which the Sherman Act was clearly meant to proscribe.

We do not believe that the holding of Goldfarb, supra, applies to the facts of this case. Goldfarb, supra, was concerned with a minimum fee schedule. Attempts at minimum fees or price floors are traditionally the target of antitrust laws, state and federal, as they tend to artificially raise the prices of goods and services without a corresponding increase in the value of those services. The control of advertising by the Supreme Court of members of the Bar is far different than price fixing by a local bar association. We do not believe that Disciplinary Rule 2-101 (B) conflicts with Goldfarb, supra.

However, even if we were to find that DR 2-101 (B) violated the provisions of the Sherman Act, we believe this would be state action which is exempt by the Sherman Act. The Sherman Act was not [397]*397meant to restrain activities required by the state acting as a sovereign. The Supreme Court stated:

“ * * * [I]n view of the [Act’s] words and history, it must be taken to be a prohibition of individual and not state action. * * * The state * * * imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit. * * * ” Parker v. Brown, 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315, 326 (1943).

This position was reinforced by the United States Supreme Court in Goldfarb, supra, as follows:

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In Re Members of the State Bar of Arizona, Bates
555 P.2d 640 (Arizona Supreme Court, 1976)

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Bluebook (online)
555 P.2d 640, 113 Ariz. 394, 1976 Ariz. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-members-of-the-state-bar-of-arizona-bates-ariz-1976.