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Loughlin v. Tweed

United States District Court, E.D. Louisiana

June 10, 2015

KEARNEY LOUGHLIN,
v.
GREGORY TWEED, ET AL., SECTION

ORDER AND REASONS

MARTIN L. C. FELDMAN, District Judge.

Before the Court is defendant Gregory Tweed's motion to dismiss the plaintiff's complaint for monetary damages. For the reasons that follow, the motion is DENIED.

Background

Kearney Loughlin, a Louisiana attorney, brings suit against the Louisiana Attorney Disciplinary Board, Gregory Tweed (a deputy disciplinary counsel of the Board's Office of Disciplinary Counsel), Steven Tew in his official capacity as the Chair of the Board, and Charles Plattsmier in his official capacity as Chief Disciplinary Counsel, challenging their prosecution of him based on the content of his professional Web site. Tweed responds that he is immune from suit. This lawsuit and the allegations of Loughlin's grievances cast the legal profession in a poor light, at best.

It is important to this case that in August 2009, this Court considered the constitutionality of certain provisions of the Louisiana Rules of Professional Conduct as they relate to attorney advertising and the First Amendment. Public Citizen, Inc., et al. v. Louisiana Attorney Disciplinary Bd., et al., 642 F.Supp.2d 539 (E.D. La. 2009). The Fifth Circuit subsequently affirmed in part and reversed in part. 632 F.3d 212 (5th Cir. 2011). This Court analyzed several Louisiana Rules of Professional Conduct; the plaintiff in this case focuses on Rule 7.6(d):

Advertisements. All computer-access communications concerning a lawyer's or law firm's services, other than those subject to subdivisions (b)[1] and (c)[2] of this Rule, are subject to the requirements of Rule 7.2 when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.

This Court distinguished Internet information from the more popular fads of tv, radio, and print solicitations of law cases, and found that the defendants, which included the Louisiana Attorney Disciplinary Board:

ha[d] not shown that the State studied online advertising techniques or methods and then attempted to formulate a Rule that directly advanced the State's interests and was narrowly tailored with respect to Internet advertising. Instead, the State, through its high court, simply applied the same Rules as those developed for television, radio, and print ads to Internet advertising. This Court is persuaded that Internet advertising differs significantly from advertising in traditional media.

Public Citizen, 642 F.Supp.2d at 559. This Court held Rule 7.6(d) unconstitutional, finding that the defendants had not met their burden of showing that the Rule directly and materially advanced the State's interests or was narrowly tailored. Id.

Loughlin contends that he maintained a Web site from 2007 to 2009, which stated that he held a Certificate of Specialization in Maritime Law from Tulane University Law School.[3] It also described the firm as "a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death claims."[4] On February 2, 2012, the Office of Disciplinary Counsel (ODC) initiated formal charges against Loughlin, alleging that on or about October 13, 2011, Deputy Disciplinary Counsel Tweed had personally seen the socalled offending Web site, and that the page "states that you 'specialize' in maritime personal injury and death cases.' However, no such specialty is recognized by the Louisiana Board of Legal Specialization. Further, the ad does not contain the full name of any other organization granting such certification." The ODC alleged that the Web site violated Rule 7.2(c)(1)(B) and Rule 7.2(c)(5), adding later that it also violated former Rule 7.4.[5]

Louisiana Rule of Professional Conduct 7.2(c)(1)(B) redundantly states:

(1) A lawyer shall not make or permit to be made a false, misleading or deceptive communication about the lawyer, the lawyer's services or the law firm's services. A communication violates this Rule if it... (B) is false, misleading or deceptive.

Rule 7.2(c)(5) states:

(5) Communication of Fields of Practice. A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is "certified, " "board certified, " an "expert" or a "specialist" except as follows:
(A) Lawyers Certified by the Louisiana Board of Legal Specialization. A lawyer who complies with the Plan of Legal Specialization, as determined by the Louisiana Board of Legal Specialization, may inform the public and other lawyers of the lawyer's certified area(s) of legal practice. Such communications should identify the Louisiana Board of Legal Specialization as the certifying organization and may state that the lawyer is "certified, " "board certified, " an "expert in (area of certification)" or a "specialist in (area of certification)."
(B) Lawyers Certified by Organizations Other Than the Louisiana Board of Legal Specialization or Another State Bar. A lawyer certified by an organization other than the Louisiana Board of Legal Specialization or another state bar may inform the public and other lawyers of the lawyer's certified area(s) of legal practice by stating that the lawyer is "certified, " "board ...

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