THE MARSHAL: PLEASE RIS E .

THE MARSHAL: LADIES ANDGENTLEMEN, THE FLORIDASUPREME COURT.

PLEASE BE S EATE D .

CH IEF JUSTICE: GOOD MORNING. THE N EXT CASE O N T HE D OCKET IS THE FLO RI DA BAR V ER SU S MARK STEPHEN GOL D . GOOD MORNI NG .

MAY IT PLEASE T HE COURT , I'M HOPE KEATING O N B EHALF OF THE F LORIDA BAR. THE I SS UE BEF ORE T HI S C OU RT IS W HE TH ER STATE ME NT S CONTAINED IN THE LAW YER' S A DVERTISEMENT, WHICH ARE OTHERWISE IN VIOLATION O F THE RULES REGULATING THE FLORIDA BAR, GAIN IMM UN IT Y SIMPLY BECAUSE THEY FIRST APPEARED I N NEWSPAP ER ARTICLES.

CHIEF JUSTICE: BEFORE YOUGET INTO THAT, COULD YOU GIVE US S ORT O F A CHRONOLOGICAL SUM MA RY O F WHEN T HE SE A DS F IR ST S TART ED A PPEARING AND MOR E O F THE ESTOPPEL ISSUE, THA T I S WHETHER THE BAR H AD ACTUALLY APPROVED THESE ADS I N THE PAST ?

I DON'T T HINK THERE IS ANY DISPUTE IN THE RECORD THAT THERE WER E PRE VIOU S GRIEVANCE PROCEEDIN GS , B UT THE RECORD IS - - D OE SN 'T GIVE THE DETAILS AS TO W HICH -- WHAT THE A DVER TI SEME NT S EXACTLY WER E , AND WHA T R UL ES WERE AT ISSUE.

JUSTICE: W ELL , THE I SS UE THAT I AM CONCE RN ED A BOUT I S THAT IN THE - - I N T HE DEF ENDANT'S P APER S H ERE , THERE IS AN ASS ERTI ON T HA T THIS A D W HICH I S I N SUBST ANTIALLY SIMILAR FORM HAD BEEN FILED U NDER 4-7 WITH T HE A DVER TI SI NG COMMITTEE AND THAT THE BAR HAD NEVER RAISE D ANY POI NT ABOUT A SUB ST ANTI ALLY SIM ILAR AD P RI OR T O THE T IM E THAT THIS AD WAS RUN . IS THAT NOT C ORRECT ?

THE R EC OR D D OE S S HO W THA T THERE W ER E PRE VIOU S FIN DI NG S O F NO PROBA BL E CAU SE O N A DS T HAT C ONTAIN ED T HE N EWSP APER ARTICLES.

JUSTICE: W HA T I'M CONCERNED ABOUT IS W IT H T HE ADVERTISING COMMITTEE OF THE FLORIDA BAR. THE ASSER TION S M ADE T HA T THESE ADS I N A SUB ST ANTI AL LY SIM ILAR FORM P REVI OU SL Y H AD BEEN FILED WITH T HE BAR 'S ADV ERTISING COM MI TT EE U NDER THE PROCEDU RE THAT IS OUTLINED IN THE R UL E FOR PASSING T HESE B EFOR E T HE BAR P RIOR TO THE TIM E T HA T THE Y ARE RUN AS A DV ER TI SEMENT S.

I THINK THAT THE R EC ORD IS I NCOM PL ET E A S T O W HA T NOTIFICATIONS T HE R ESPO ND EN T GOT FRO M T HE F LORI DA B AR , THE ETHIC S I N A DVER TI SING OFFICE AND AS T O W HA T VIOLATIONS . > > JUSTICE: WELL, TEL L U S WHAT YOU CAN TELL US ABOUT WHAT THE RECORD DOES S HOW I N TERMS OF AND I'M NOT S UR E WE'RE GETTING ACROSS T HE ISSUE THAT WE ARE ASK ING ABOUT . THESE OEN C LOSU RE S - - THE SE E NCLOSURES, M AILING S?

THAT'S CORRECT .

JUSTICE: THE CON TE NT S O F THE SE GO BEFORE THE B AR F OR SOME YEARS B EFORE T HE PROSECUTION OF THESE PARTICULAR VIOLATI ONS I N T HE CASE THAT WE HAVE BEF OR E U S , AND WERE THE C ON TENT S A RE SUBSTANTIALLY SIMILAR CONTENTS A PPROVED BY T HE B AR FOR U SE B Y THI S LAW YE R P RIOR TO THIS P RO SE CU TI ON , AN D I F SO, YOU K NOW , HOW F AR B AC K DOE S THAT APPROVAL GO? DO YOU UNDERSTAND MYQUESTION?

I T HINK SO . > > JUSTICE: THE P ROCEDURE I S THEY ARE NOT IN THE B AR AS PART OF THE ADV ERTISI NG SCHEME, THAT L AW YE RS C AN SEND TO A BAR C OM MITT EE O R THE BAR IN TAL LAHA SSEE A ND SAY HERE'S MY P ROPO SE D A DVERTISEMENT OR P RACT IC E.

R IGHT .

JUSTICE: AND IT IS O KAY IN ESSENCE AND THE BAR LOO KS AT IT A ND SAY S I T I S O KA Y O R IT IS NOT O KA Y O R WHA TEVE R. NOW, W AS T HA T P RACTIC E ENG AGED IN IN SOFA R A S THI S PARTICULAR ADVERTISEMENT IS CONCERNED?

YES, SIR, I BELIEVE IT WAS.

JUSTICE: AND HOW FAR B AC K DO WE GO?

I B EL IE VE , I A M N OT EXACTLY SURE, BUT I THINK I T GOES BACK T O A N UM BE R O F YEARS TO THE EAR LY ' 90 s.

JUSTICE: SO WAS THI S ADVERTISEMENT ENDOR SED O R OKAYED BY THE B AR G OI NG B AC K A NUMBER OF YEA RS ?

S IN CE 1 99 6 , I KNO W T HA T THERE HAV E B EE N S EVER AL N OTIFICATIONS AFTER THE AD WAS FILED WITH THE O FF IC E O F ETHICS IN A DV ERTI SI NG , A ND T HE RES PONDENT WAS N OT IF IE D ON SEVERAL OCCASIONS THAT , NO, HIS AD WAS NOT I N COMPLIANCE .

CHIEF JUSTICE: BECAUSE THE RES PONDENT SAY S T HE BAR APPROVED THIS AD IN 2 00 3. WHAT I'M H EARING Y OU SAY I S THAT, N O , THA T NEVER HAPPENED. IN FACT , THERE W ER E N OTIC ES THAT THE AD W AS I MP ROPE R ? THI S SHOULD BE A PRETT Y E AS Y QUESTION.

IN 2 003 THE RE WAS A GRIEVANCE COMMITTEE ON AN A D ALMOST EXACTLY LIKE T HI S , AND A FIN DI NG O F P ROBABL E CAUSE WAS I SSUE D I N 200 3.

CHIEF JUSTICE: S O Y OU R POSITION IS THAT THE B AR NEVER A PPROVED THIS AD?

NOT THE OFFICE O F E TH ICS IN ADVER TISI NG . ON SEVERAL O CCAS IONS , I T WENT TO A G RIEV AN CE C OMMITTEE WHO ISSUE D L ETTE RS OF N O PRO BA BL E C AUSE.

JUSTICE: ALL RIGHT . SOM ETHING THAT IS REL AT IVEL Y SIMPLE SEEMS TO B E V ER Y COMPLICATED HERE I N WHI CH WOULD USUALLY ORA L A RGUMENT IS THE PLACE THAT WE UNCOMPLICATE THINGS T O LET 'S KEEP TRYING. YOU ARE S AYING THAT , NO , T HE BAR N EVER APP RO VE D A N ADVERTISE MENT SIMILAR TO THIS FOR USE BY T HI S L AW YER. LET ME JUS T S TO P R IGHT THERE. IS THAT C ORRECT?

I B EL IE VE A T LEA ST SIN CE 1 996.

JUSTICE: IS THAT A CORRECT STATEMENT OR IS THAT NOT A CORRECT STA TEMENT?

TO M Y K NO WL EDGE SINCE 1996 THEY DID NOT APPROVE IT.

JUSTICE: IN FACT , WHAT HAPPENED IS THAT AS OPP OS ED TO APPROVING T HIS ADV ERTISEMENT T HE BAR H AS ISSUED R EA LL Y L ETTE RS CAUTIONING THA T T HIS IS A N E THICAL VIOLATION?

THA T IS CORRECT. THE LETTERS OF N O PROBA BL E CAUSE RESULTED FRO M COMPLAINTS FILED AGAINST ADS THAT WENT TO THE G RIEV AN CE COMMITTEE , BUT T HE L ETTERS FROM THE OFFICE OF E THIC S I N ADV ERTISING DID NOT APP RO VE THE AD .

CHIEF JUSTICE: DO YOU WANT TO CONTINUE THE N?

Y ES . THE ISSUE BEFORE THE COU RT IS - -. > > JUSTICE: YOU NEED T O GET RIGHT TO THE THI NG HER E BECAUSE WE WERE HALFWAY THROUGH YOUR O RAL A RGUMENT AND WE WERE CONCERNED ABOUTWHAT THE RECORD SHOWED A BOUT THIS PREVIOUS THING. NOW, WHY S HOULDN'T L AWYERS IF THEY GET A N ICE WRITE -U P IN THE NEW SP APER A ND I T I S THE NEWSPAPER T HAT SAY S THING S ABOUT THE M THAT T HE Y THINK MIGHT H EL P T HE M G AI N CLIENTS, WHY S HO ULDN 'T T HE Y BE ABLE TO P UBLI CI ZE T HA T NICE NEWSPAPER ARTICLE THA T THEY DIDN'T WRITE THAT SOMEBODY ELSE WROTE?

WELL, WHEN T HE N EWSP APER ARTICLES WERE PUBLISHED IN THE NEWSPAPER P RE SU MABL Y THEY WERE BONAFID E N EWS S TORIES. NOT WRITTEN, PAID FOR O R S OLICITED BY T HE R ESPOND ENT. AND NOT C ONSI DE RE D A N ADVERTISEMENT AND PRESUMABLY THERE WAS NO REASON FOR THE BAR T O O BJ EC T T O T HE RESPONDENT'S PARTICIPATION IN THOSE NEWS S TO RIES . AND T HE B AR OTH ER WI SE H AS N O A UTHORITY T O R EG ULAT E NEW S ARTIC LES. BUT S O W HE N T HE A RTIC LE S WERE PUBLISHED IN T HE NEWSPAPER THEY W ER E NOT SUBJECT TO THE BAR RUL ES , BUT THE BAR IS C HA RGED WIT H REGULATING LAWYE R ADV ERTISEMENT, A ND N OW , THOUGH, THE A RT IC LE S A ND WORDS IN THOSE ART IC LES , I N T HOSE NEWS A RTICLES A RE NOW PART OF THE L AWYER'S A DVERTISEMENT . > > CHIEF J US TICE : I S THAT THE BRIGHT-LINE R ULE THE N AS SOON AS THI S NEW SP APER ART ICLE G OE S INT O A N ADVERTISEMENT THEN IT IS IMPROPER OR IS THE BAR I N THIS CAS E BAS IN G I T A LL O N THE F ACT W HICH C ON CERNS M E T HAT T HE SE A RE REA LL Y O LD STORIES. THESE STO RIES A RE OVE R A DECADE OLD SO IT COU LD B E VERY MISLE AD IN G T O A POTENTIAL REC IPIE NT T HA T THE SE WERE RECENT R ESULTS?

NO, THE ISSUE B EF ORE T HE COURT IS NOT THE NEWSPAPER ARTICLES. IT IS THE CON TE NT O F A LAWYER'S ADVERTISEMENT. THE CONTENT OF THE W OR DS A ND STATEMENTS WITHIN THE FOUR CORNERS OF THA T ADVERTISEMENT, AND THE RE A RE -- THE BAR R UL ES A RE VER Y CLEAR THAT THERE A RE STATEMENTS IN A LAWYER'S ADVERTISEMENT THAT ARE PROHIBITED. STATEMENTS A BOUT PAS T SUCCESSES, RESULTS O BT AI NED OR STATEMENTS THAT DESCRIBE OR CHARACTERIZE T HE Q UA LITY OF A LAWYER'S S ER VI CES.

JUSTICE: IS THAT BECAUSE THE STATEMENTS ARE ATTRIBUTED TO THE LAW YE R O R WOULD THIS BE THE C ASE , F OR EXAMPLE, IF A REPORTER WEN T DOWN OR CAME TO T HI S C HAMB ER AND W ATCHED THE PER FO RMAN CE OF A LAW YE R A ND D ES CR IBED THOSE IN THE REP OR TER' S OWN WORDS RATHER THAN A N INTERVIEW WITH THE LAWYER.IS THAT A DISTINC TION OR I S THAT NOT?

NO.

JUSTICE: IT IS NOT? S O THEN IT W OULD BE T HA T A LAWYER CANNOT S EN D A ROUN D A COPY O F T RUTH , N O Q UOTE S , JUST A L EGIT IM AT E N EW SPAP ER ARTICLE, CAN'T S END THAT O UT IF IT C ON TA IN S A LAU DATO RY KIN DS OF MAT ERIALS T HA T WOULD OTHERWISE V IOLATE THE BAR RULES?

THE RUL ES P ERTA IN T O ANY WRITTEN COMMUNICATION DIRECTED AT A P ERSP ECTIVE C LIENT FOR T HE PUR PO SE O F OBTAINING BUSINESS.

JUSTICE: THE ANSWER IS YES?

YES.

JUSTICE: SO LAWYERS C AN'T C OPY ARTICLES, EVEN I F T HE Y DON'T MAKE STATEMENTS IN THE ARTICLES, AND SEND THOSE TO CLIENTS?

NO, NOT I F T HE Y CON TA IN SOMETHING THAT I S O THER WI SE P ROHIBITED BY - -.

CHIEF JUSTICE: BUT IF THEY WERE A PRI OR - - SAY YOU ARE A P ER SO NAL I NJ UR Y LAWYER AND YOU JUST GOT GRE AT R ESULTS AND YOU W ANTED T O SHARE THAT WITH ALL OF Y OU R PRIOR CLIENTS YOU CAN'T WRITE A L ETTER AND SAY HERE IS THIS NIC E NEW SPAPER ARTICLE ABOUT ME ? > > N O , B EC AUSE T HE COMMUNICATIONS THAT ARE GOING TOS P RO SPEC TI VE CLI ENT CAN NOT C ONTAIN CER TAIN STATEMENTS AND THAT I S P AS T RESULTS O R PAS T S UC CE SSES O R RES ULTS . BECAUSE THOSE KINDS O F STATEMENTS ARE MISLEADING .

JUSTICE : A NY P ER SO NA L I NJURY FIRM THAT S ENDS AROUND A N EW SLETTE R A ND J US T LIS TS H EA D LINE S F RO M NEWSPAPERS S AYIN G 3 .4 MILLION DOLLARS R ECOVER ED F OR SAM SMI TH , THA T IS -- I S THE - - H AS THE B AR PROSECUTED THAT TYPE OF THING ?

IF T HA T I S SEN T T O A PROSPECTIVE CLIENT F OR THE PURPOSE O F OBTAINING BUSINESS AND IT PER TAIN S T O AND IT FALLS UNDER T HE R UL ES AS SOM ETHING THAT I S S EN T OUT T O S OLIC IT C LI ENTS T HEN ANY REFERENCE TO PAS T SUCCESSES O R RES UL TS I S P ROHIBITED.

JUSTI CE: DID THE B AR APPROVE THIS F OR M T HA T JUSTICE WELLS D ESCRIBES THAT IS THEY HAVE O KAYE D THE M AI LING OF NEW SL ET TERS T O A WIDE AUDIENC E THA T J UST DESCR IBE RECENT CAS ES HANDLED BY THE L AWYE RS , HASN'T THE BAR E NDOR SE D T HAT FORM O F A DVER TI SEME NT ? D O YOU UND ER STAND WHAT WE ARE TALKING ABOUT? A NEW SL ET TER , Y OU KNO W, FROM THE JONES , JONES A ND SMI TH LAW FIRM T HA T S AY S , B OY , I N T HE L AS T S IX M ON TH S HER E I S WHAT HAS HAPPENED WITH O UR CASES, AND , Y OU K NO W , W HATEVER , A ND H AS N' T THE B AR APPROVED THAT KIND O F ADVERTISING ?

I A M N OT FAM IL IA R WIT H THAT.

JUSTICE: WELL , W IT H RESPECT TO THIS CASE THIS IS NOT A LETTER TO A F ORME R CLIENT .

RIGHT .

J US TICE: C ALL N OW FOR A F REE C ON SU LTATION.

THIS IS A S OLIC IT AT ION AND THE RULE A PP LI ES T O SOLICITATIONS TO P RO SPECTI VE CLIENTS.

CHIEF JUSTICE: YOU ARE INYOUR REBUTTAL B UT J USTICE CANTERO HAS A QUESTION AND THEN JUSTICE Q UINCE. I JUST WANT YOU TO B E AWA RE THAT WE MAY BE U SING A LL O F YOUR REBUTTAL TIME.

JUSTICE: I T SEE MS FROM THE DISCUSSION HERE T HAT T HE DIFFERENCE FOR THE FLORIDABAR IS THE FACT THAT THI S WAS NOT SENT O UT T O F OR ME R CLIENTS O R F RI ENDS AND THAT I BALTIMORE ORIOLES - - NEIGHBORS, IT W AS S EN T O UT SPECIFICALLY TO PEOPLE W HO HAD BEEN ARRESTED AND CHARGED WITH D OU ?

THAT'S C ORRECT.

CHIEF JUS TICE: J USTI CE QUINCE?

IN THE ADVERTISEMENT THERE ARE STATEMENTS THAT ARE ATTRI BU TA BL E T O THE RESPONDENT AND THEN THERE ARE STATE MENTS T HA T W ER E A CTUALLY MADE BY T HE REPORTER. IS THERE A D IF FE RENC E I N THOSE STATEME NTS ? DOES THE BAR SEE A DIFFERENCE AS TO WHETHER OR NOT THE R ES PO NDEN T A CTUA LLY MADE THESE STATEME NT S O R SOMEO NE E LS E , THE R EPOR TE R A CTUALLY MADE THE STA TE ME NTS ABOUT THE Q UA LITY O F THE WORK THAT WAS DON E?

NO, MA'AM. WHEN THE BAR , I F THE BAR , I F T HE ART IC LE IS NOT F IRST O F A LL IS NOT S OL ICIT ED , P AI D F OR OR W RI TTEN BY THE ATTORNEY IT IS PRESUMABLY NOT AN A DV ER TI SE MENT , BUT WHEN THOSE WORDS ARE P UT INTO AN A DV ER TISE MENT A ND SENT OUT THEY ARE SUB JECT T O A S EC ON DARY R EV IEW.

J US TICE: S O I T I S A S IF THE ATTORNEY IS A DO PT IN G THOSE?

RIGHT, ADOPTED T HOSE STATEMENTS AND MADE T HEM HIS OWN AND NOW THEY ARE C OMING FROM HIM T O S OL ICIT B USIN ES S AND TO S EL L HIS L EGAL S ERVICES. SO AT T HA T P OI NT T HE Y BEC OM E SUBJECT TO A DIF FE RENT STANDARD AND THAT IS THE RULES R EGUL AT ING F LO RIDA LAW.

CHIEF JUSTICE: YOU M AYWANT TO REMAIN T HE - - S AV E THE REMAINING M INUTE F OR REBUTTAL.

THANK YOU .

CHIEF JUSTICE: M R. KLU GE R ?

CHIEF J USTICE P ARIENT E , MAY IT PLEASE T HE COURT, ALAN KLUGER O N B EHAL F O F MARK STEPHEN GOLD. Y OUR H ONORS , THERE ARE T HREE ISSUES WE TOUCHED U PO N , T OO , ONE IS THE ESTOPPEL A ND FRANKLY WHAT THE LOWER COURT DID WAS THE COURT, THE REFEREE S AI D T HA T S HE F OUND EVIDENCE O F P RO BABL E E STOPPEL AND IT IS IN T HE ORDER BUT T HAT SHE WAS RULING ON THE CON STITUTIONAL QUESTIONS.

JUSTICE: WELL, T EL L M E WHAT HAPPE NE D H ERE WIT H THESE ADS I N S EN DI NG T HE M T O T HE A DV ERTISI NG C OM MITT EE .

THE A DV ERTI SI NG C OMMI TTEE ISN'T B INDING ON THE B AR .

JUSTICE: I U NDER STAND.

SO WHAT THEY TELL Y OU I S IT IS A PROCESS THA T I S KIND OF INTERESTING BECAUSE IT ISALMOST LIKE A REVENUE PROCESS WHERE YOU PAY THEM A FEE.THEY LOOK AT YOUR AD A ND THEN THE A DVISOR Y O PINI ON ISN'T BINDING UPON THE M AND IT CAN STILL GO THROUGH THE G RIEVANCE PROCESS SO W HILE IT IS A N IC E A RG UM EN T T HA T WE COULD RELY O N , I D ON'T THINK THAT INT ELLE CTUA LL Y IT IS A VAL ID A RGUMEN T T HA T I COULD MAKE BECAUSE THE BAR TELLS YOU THAT IT I S ADVISORY AND THE PROCESS, THE GRIEVANCE PROCESS IF YOU WIL L THEN F ER RE TS O UT .

JUSTICE: AT LEAST IT GIVES THE R ES PO NDEN T A G OO D FAITH B ASIS WHEN IT I S PROSECUTED SO SAY , HEY, YOU TOLD ME I COULD D O I T A ND I WON'T DO IT IN THE F UTURE.

BY THE WAY, T HE B AR IN O THER ARE AS HAS E SSEN TIALLY TAKEN THAT POSITION OF STO P. T HIS I SN 'T A C ASE WHERE THEY ARE T RYING TO DIS BAR A LAWYER. THEY ARE TRYING TO STOP A LAWYER FROM ADV ER TI SING , BUT THE ESTOP PE L I SS UE S W ER E INTERESTING BECAUSE THE W AY THIS WHOLE THING STARTED O N THE ENV ELOPE C ON TE NT WIT H THE LANGUAGE IS NOW YOU C AN FIGHT BACK AND IT S AY S TICKET CLINIC. THE WAY THIS S TART ED WAS MR. GOLD MADE A C OMPL AI NT T O THE FLO RIDA BAR G RIEV AN CE COMMITTEE F OR A NOTH ER COMPETING TRAFFIC GRO UP , AND SAID THEY HAV E O N T HI S N OW YOU CAN FIG HT BACK A ND TICKET DEFEN SE T EAM. THIS V IO LATE S THE S AME RUL E THAT THE BAR IS A CC USED MR. GOLD OF . IT FOUND N O V IO LATI ON , A ND A S A RES UL T G OL D T HE N CHANGED HIS ENV EL OP E T O TAK E THE EXACT WORDS T HA T T HE COMPETITORS H AD AND T HEY HAVE GONE THROUGH THE 17T H JUDICIAL CIRCU IT GRIEV AN CE PROCESS. AFTER THAT, IN 1 99 8 , THE G RIEVANCE COM MITTEE FOUND THAT THE S PE CIFIC LAN GU AGE ON MR. GOL D' S S ELF- SEAL IN G ENV ELOPE DID NOT R EVEA L THA T THE RECIPIE NT H AD REC EI VE D A TRAFFIC TICKET. THE GRIEVANCE COM MITTEE BASED THE D ETERMINATION, I'M READING FROM THE REPORT, ON THE FACT THAT MANY C IT IZ ENS REGULARLY RECEIVE UNSOLICITED JUNK MAIL WHI CH DOES NOT REFLECT A NY SPECIFIC KNOWLEDGE OF THE RECIPIENT'S - -.

CHIEF JUSTICE: NOW YOU'RE ONLY TALKING ABOUT THEOUTSIDE OF THE ENVELOPE.

THAT'S CORRECT.

CHIEF JUSTICE: HOW ABOUT,THOUGH, THIS IS WHAT CONCERNS ME.

I HAVE A N EW SP AP ER ARTICLE ALSO THE NEX T GRIEVANCE C OMMITTEE.

CHIEF JUSTICE: BUT WHA T YEAR WERE THESE N EWSPAPER ARTICLES WRITTEN?

I THINK THE LAT E ' 80 s.

CHIEF JUSTICE: HE WAS 3 2 YEARS OLD AT THE T IME AND ONE OF THE REASONS THAT THE FLORIDA BAR DOE SN 'T W AN T LAWYERS TO TALK A BOUT RESULTS O BT AI NE D I S BEC AU SE IT COULD G IVE PRO SP ECTIVE CLIENTS A FALSE SENSE THA T THEY ARE GOING TO GET THE SAME RESULTS. NOW, I'M NOT SUR E WHE TH ER I AGREE OR DISAGREE W IT H THA T , B UT HERE THE P ROBL EM I HAVE IS THAT THE SE ARE ARE V ER Y OLD ARTIC LE S . IS THERE ANYTHING IN THE ADVERTISEMENT THAT INDICATES THAT T HESE A RE ACT UA LLY 17-YEAR-OLD ART IC LE S T O S HO W THAT THIS IS N OT A - - T HI S IS S IMPL Y A N HIS TORI CA L HAPPENSTANCE THAT 1 7 Y EA RS BEFORE HE WAS A BLE TO G ET OFF CLIENTS BECAUSE O F EVERYTHING THAT IS IN THERE. IS THAT IN THE ADVERTISEMENT?

NO, AND T HE BAR D IDN' T ASK FOR THA T TO BE IN T HERE AND THAT'S IMPOR TA NT BEC AU SE THE BAR D OES F EE DB AC K WIT H THE LAWYERS THAT A DV ERTI SE .

CHIEF JUSTICE: DO YOU AGREE THAT THAT IS POTENTIALLY A BIG P RO BLEM WHEN AN A RT IC LE MAKES IT SOUND LIKE THIS IS S OM ETHING IN THE P RE SENT T EN SE W HE N , IN FACT , IT I S V ERY --

I U ND ERST AND THE COU RT 'S CONCERN BUT A S B AR C OU NSEL CANDIDLY ADM IT TED T HA T WASN'T RAISED BY THE BAR AND IT HAS NEVER BEEN A SS ER TE D. YOU'VE ASSERTED IT B UT UNDERSTAND FROM MR. GOLD' S STANDPOINT THE BAR HAS NEVER ASSERTED YOU DIDN'T DATE THE ARTICLES B ECAUSE THA T W OULD HAVE BEEN SIMPLE AND HE WOULD HAVE DAT ED T HE ARTICLE. I MEAN, H E PAYS F OR ADVERTISING, YOU KNOW , REAL ADVERTISING IS A LLOWED O N THE RADIO AND A LL OF THE REST. IT IS PROBABLY THE L AR GEST CLINIC, YOU KNOW , S TA TE WIDE OF ITS KIND. THEY HAVE BEEN IN BUSINESS ALL OF THIS TIME. THEY REALLY ARE T HE GRANDDADDY OF THIS BUSIN ESS SO WHATEVER THE BAR W OULD HAVE D EM AN DE D WIT HI N REA SO N THAT HE COULD HAVE DONE H E WOULD HAVE DONE BUT THE Y HAVE NEVER DONE IT.

JUSTICE: WILL IS A L IN E OF CASES T HAT YOU S EE M T O CITE AND S UPPORT I S T HE SE MAIL- OUTS ARE CASES WHE RE LAWYERS HAVE BEEN INTERVIEWED AND T HEN THE QUESTION IS W HETHER O R N OT SUBMITTING TO THOSE INTERVIEWS AND THEN HAV IN G THESE NEWSPAPER STO RIES O R WHATEVER COME OUT I S I TS EL F A V IO LATION . WOULD YOU A GR EE THA T' S V ER Y DIFFERENT THAN THE L AW YE R MAKING COPIES O F A RTIC LE S THAT M AY P AE RL A ND T HE N USING T HE M A S A DVER TI SI NG OVER A LONG PERIOD O F TIME ? WOULD YOU AGREE THERE I S A DIFFERENCE?

I BELIEVE THERE IS A DIFFERENCE BUT I DON'T THINK CONSTITUTIONALLY IT IS ADIFFERENCE THAT MATTERS AT ALL AND HERE'S WHY. THE FIRST STEP IN T HE ANALYSIS IS WHETHER IT IS MISLEADING. THE BAR HAS NOT TAKEN THE POSITION IT IS MISLEADING AND THE R EF EREE BELOW FOU ND SPECIFIC FINDING THAT IT WAS NOT MISLEADIN G. THAT IS S UBJECT TO THE CLEARLY ERRONEOUS STAND ARD NOT THE DE N OVO S TA ND AR D THAT WE HAVE ON THE S UM MARY JUDGMENT AND THERE IS NO EVIDENCE IN THE R ECOR D AND I MEAN NOTHING.

JUSTICE: LET ME GIVE YOU A HYPOTHETICAL JUST TO SEE WHAT THE B OUND S ARE H ER E THAT YOU ARE ARG UING FOR . L ET'S SUP PO SE EVE R EC EN T - - WE'VE RECEN TL Y H AV E SOMETHING WHERE WE H AV E H EL D THAT LAWYE RS C OU LD N OT ADVERTISE AS PITBU LL S.

I'V E REA D T HE O PI NION .

JUSTICE: LET'S SUP PO SE TEN YEARS AGO T HE RE W AS A N A RTICLE THA T APP EA RE D I N T HE NEWSPAPERS THAT DESCRIBED YOUR CLIENT AS A PIT B UL L , AND T HEN W AS OTHER WISE LAUDATORY AND SAID THE RESULTS OBT AINED W ER E TERRIFIC AND M AN Y T IM ES MAYBE THE R ES UL TS DIDN'T HAVE TO DO WITH THE MERITS OF THE CAS E BUT J US T AGGRESSIVE LAWYERING O R WHATE VER . ARE YOU SAYING THAT T HE FAC T THAT THOSE S TA TE MENT S APPEARED IN A NEW SP AP ER ARTICLE UNDER THE A UT HORSHI P OF SOMEONE E LS E T HE N P ROVIDES AN INS UL AT ION AND T HAT IS T HA T THE L AWYE R NOW CAN TAKE T HOSE A ND F OR INSTANCE PUT UP O N A B ILLBOARD, OKAY, FROM A NEWSPAPER ARTICLE TEN YEARS B EFORE J OE J ON ES I S A R EA L PIT BUL L A ND T HE PIT BUL L I N QUOTE, OKAY? AND THEN U ND ERNE AT H HAV E ATTRIBUTED TO THE M IA MI HERALD B UT , O F C OURS E , NOW , WOULD THAT B IL LB OARD B E AL L RIGHT?

TWO ANSWERS TO T HA T . I DON'T KNOW T HA T BIL LBOA RD S AS O PP OSED TO A DVERTI SING, I'M GOING TO ASSUME IT IS AN ADVERTISEMENT THAT WOULD FALL WITHIN THE RULES, S O WE ARE TALKING A BOUT THE SAME THING AS I U NDERSTAND YOUR QUESTION. I THINK . BASED UPON YOU R O PINION T HA T PIT BULL T O DES CRIBE A LAWYER'S A TTRI BU TE S IS I NHERENTLY M IS LE ADING. YOU'VE SAID THAT. SO IF IT IS I NH EREN T LY MISLEAD ING THEN I THINK THAT IT GETS CAUGHT UP IN THE INHERENTLY M IS LE ADIN G PAR T AND THEN THAT PART OF THE A D IF Y OU W IL L O F T HE A RTICLE HAS A PROBLEM.I THINK IT H AS A P RO BLEM. BUT NOT HERE, NOT HERE.

JUSTICE: BUT J UST STAYI NG ON THAT DISCUSSION AND REALIZING YOU SAID YOU HAD TWO ANSWERS T HA T SOM ET HI NG THAT IS O TH ER WI SE INAPPROPRIATE, OKAY, WHETHER IT IS THE PIT B ULL A ND O R PAST P ERFORMANCE OR WHATEVER IT IS , T HA T IS I NA PP ROPRIA TE UNDER THE A DVERTI SING R UL ES WOULD R EMAIN INA PPRO PR IATE REGARDLESS OF W HE TH ER I T APPEARED IN A N EW S S TO RY ; D O YOU AGREE WITH THAT?

THAT IS CORRECT.

JUSTICE: WHAT'S Y OUR SECOND ANSWER?

THAT IS COR RE CT . T HESE A RTIC LE S A RE - - THE Y ARE EDU CATI ONAL . THEY ARE NOT T ES TI MO NI AL S. THE BAR ACTUALL Y I N A NO THER GRI EVANCE WROTE M R. G OL D A ND SAID WE ARE A PP RO VING T HE M BECAUSE THEY ARE NOT TESTIMONIAL IN NATURE.THERE I S ONE L INE I N O NE O F THE ARTICLES W HERE HE S AI D IN RESPONSE TO A QUE STIO N O F HIS S UC CE SS ES , HE A CT UALL Y TED T HA T O F T HE LAS T S O M AN Y CASES HE HAD SUC H AND SUC H HAPPEN BUT IT WASN' T AT ALL IN A GUA RA NT OR A NY THING. IT WAS I N DIREC T R ES PONS E T O A QUESTION AND WHAT THE BAR SAID IS THESE ARE EDUCATIONAL AND IF YOU LOOK AT SOME OF THE THINGS HE ACTUALLY SAYS IN THERE RECKLESS DRIVING IS PUNISHABLE AND HE E XPLAIN S THE STA TUTORY SCHEME. HE E XPLA IN S POI NT S. IN ANOTHER INT ER VIEW T HE Y QUOTA MEMBER OF THE F LORI DA HIGHWAY PATROL. THEY QUOTE TRA FF IC JUD GE HARVEY BAXTE R .

JUSTICE: LET M E S WI TC H HORSES FOR JUST A MINUTE BECAUSE I THINK I UNDERSTAND YOUR ANSWER T O J US TICE ANSTEAD'S QUESTION , BUT T HE BAR M AKES A D ISTI NCTION H ER E B ETWEEN A NEW SL ETTE R THA T GOES TO OTHER L AW YERS P RESUMABLY O R N ON CLIE NT S , A ND A TAR GETE D MAI LI NG T O PEOPLE WHO A RE FOU ND A T THE COU RTHOUSE TO HAVE H AD A T RAFFIC I NFRACTION. NOW, OR D UI . W HY IS THAT NOT A SOUND DISTINCTION?

I THINK IT IS A SOUND DISTINCTION. I MEA N , I DON'T HAVE A PROBLEM WITH THAT CONCEPT THAT THESE R ULES A RE D RA FTED T O DEAL W IT H T HE D IREC T SOLICITATION AS OPPOSED TO SENDING SOMETHING TO A CLIENT. I THINK THAT IS WHE RE WE A RE TODAY. I THINK IT IS A D IS TI NC TI ON WITHOUT A DIFFERENCE WHEN WE FERRET OUT T HE W HOLE C ON CE PT OF LAWYER ADVERTISING A ND BASED UPON THE SUPREME COURT AND THE B ATES C AS E A ND F OR PURPOSES OF YOUR QUESTION I AGREE WITH YOU AND I THINKTHAT IS A V ALID DIS TI NC TIONAND I THINK THAT THE RULES CONTEMPLATE THAT TODAY AS A VALID DISTINCTION BUT I A LS O IN LIGHT OF THA T Q UEST IO N WHETHER THAT IS A V AL ID DISTINCTION I THINK THERE IS A S UB VALI D D IS TI NCTION THAT I HAVEN'T TOUCHED ON B UT I T IS CRITICAL TO MY ARGUMENT AND THAT'S THE TRAFFIC CAS ES AND CRIMINAL CASES , ARE A WHOLE DIFFERENT BASIS AND IN THINKING ABOUT THIS ARGUMENT AND F IGURING OUT WHE RE T HI S COURT SHOULD BE BASED ON I TS CASE LAW I THINK THIS C OURT SHOULD BE IN A P LA CE THA T TRAFFIC TIC KE TS A ND C RIMINALS ARE TRE AT ED DIFFERENTLY AND THE BASIS FOR THAT.

DIF FERENTLY THAN DOMES TIC CASES?

THAN WHAT YOU D ID I N - - BECAUSE THE Y S AI D T HERE I S SOME FABUL OUS D EC ISIO NS THA T HAVE COME OUT OF THE 4TH CIRCUIT AND OUT OF T HE SOUTHERN DISTRICT OF FLORIDA BUT IN P ARTICU LA R I DRA W T HE C OURT'S ATT EN TI ON T O FIC KE R VERSUS C URRA N AND W HA T T HE Y SAID IN F IC KER A ND T HEY TALKED ABOUT THE F LO RIDA BAR CASE AND THEY TALKED ABOUT CIVIL CASES WHERE SOMEBODY CAN MAKE A DET ER MINATION. I DON'T HAVE TO BE A PLAINTIFF.I CAN B E SERIOUS LY I NJ URED IN A CAR ACCIDENT A ND I DON'T HAVE TO BE A PLAINTIFF.I HAVE THAT PRI VA CY RIG HT T O NOT BE A PLA IN TIFF AND YOU AS THE BAR AS T HEY D ID I N W INTFORT, BUT W HAT THE CIRCUIT COURT SAID AND IT I S TOTALLY CONSISTENT W ITH THIS COURT'S OTHER C ASES IS CRIMINAL DEFENDANTS AND TRAFFIC DEFENDANTS ARE ON A QUICK BASIS. THEY HAVE T O APPEAR IN C OURT IN 30 DAYS.

CHIEF JUSTICE: BUT N OBODY IS ARGUING THAT YOU CAN'T SEND AS O PENS - - O FF ENSI VE AS THEY MAY B E THE SE DIR EC T S OLIC ITATIONS. IF YOU A CCEPT THAT THE B AR SPECIFICALLY PRO HIBITS ADVERTISE MENTS THAT SPEAK ABOUT RESUL TS H AV E C HANG ED . DO YOU AGR EE T HA T T HA T , T HA T IF I AM THE M OS T CRI MI NAL DEFENSE LAWYER I CAN'T ARGUE TO SAY T HAT L AS T YEA R I HAD 10 OUT OF M Y 1 2 CAS ES I RECEIVED ACQUITT AL. CAN A LAW YER SAY T HAT?

I B EL IE VE T HA T I F T HE THRUST OF THE ART IC LE .

CH IEF JUSTICE: NOT THE ARTICLE, THE ADV ERTISEMENT.

IF T HE PURPOSE OF T HE A D IS TO T AKE YOUR P AS T SUCCESSES AND USE THAT AS A BASIS TO ADVER TISE I N THE FUTURE THAT THAT IS NOT PERMITTED.

CHIEF JUSTICE: T HAT'S NOT PERMITTED AND WHY IS T HAT?

BECAUSE THE SOLE F OC US IS YOU ARE GOING TO S OMEONE AND SAYING HIRE M E.

CHIEF JUSTICE: BECAUSE I WAS REALLY GOOD.

NO, YOU CAN SAY THA T . THAT'S NOT THE P ART. YOU A SKED ME IF TOTAL LY W HAT THEY ARE DOING IS TALKING ABOUT TOTALLY T HEIR P RIOR SUCCESSES AND IF YOU LOOK AT THIS ARTICLE AND THEN YOU POINT ME TO ONE LINE IN T HE ARTICLE WHERE HIS PRIOR SUCCESS IS MENTIONED, WHA T I'M S AYING TO YOU I S TWO THINGS. NUMBER ONE, T HA T I S A S MA LL PART OF ONE O F THR EE A RTICLES. NUMBER TWO, THE B AR D IDN' T RAISE THAT AS T HE P ROBL EM , AND ALL I AM S AY IN G T O Y OU IS UNDERSTAND THE B AR I N T HE L OWER C OURT - -. > > CH IEF JUSTICE: SO THE PART THAT SAYS G OL D G OT O NE CLIENT OFF RECENTLY B ECAUSE OF A B RE ATH TES T M ACHINE WHICH WAS TAKEN OUT O F S ERVICE O F A S TATEME NT THA T IS NOT DATED A ND G IVES T HE RESULTS O BT AINED FROM 1 7 YEARS AGO, WOULD YOU AGREE THEN THAT THAT I S , T HA T ITSELF IS A N INH ER EN T LY MIS LEADING STATEMENT?

I THINK IN THE T OT ALITY OF THOSE THR EE A RTICLES IT IS NOT. BUT IF THE BAR CAM E B AC K A ND SAID TAK E T HAT S TA TEME NT O UT , THEN HE COULD HAVE TAKEN IT OUT. WHAT I 'M TRY IN G T O SAY I S THE Y D ID A W HOLE SALE A TT AC K HERE. IN THE LOWER C OURT A ND I BROUGHT THE T RA NS CR IPT BECAUSE THE BUD GE I N FIN DI NG IT UNCONSTITUTIONAL S AID WHAT IS YOUR B ASIS ? IT IS NOT MISLEADIN G , BUT W E ASSUME THE BAR HAS A SUBSTANTIAL -- THIS IS A COMPELLING STATE INTER EST TEST. IT IS THE FIRST AMEND MENT RIGHTS. HE SAID, WELL , THE INTEREST HERE IS THE PRIVACY R IG HTS TO THE I ND IV IDUAL. THERE IS A F LO RI DA S TA TUTE THAT GOT THROWN O UT BY THE SOUTHERN DISTRICT THAT SAYS THERE IS NO PRIVACY R IGHT I F YOU ARE A T RA FFIC DEFEN DE R.

CHIEF JUSTICE: AND T HAT'S THE O NE T HAT I S O N T HE ENVELOPE.

BUT THIS I MP ORTANT ON THE ENVELOPE. UND ERSTAND WHAT HAPPENS , MADD S EN DS I T OU T. THE DRIVER'S SCHOOL THAT IS OWNED BY THE STATE OF FLORIDA IN DADE COUNTY, T HE Y SEND IT OUT. ALC OHOLICS ANONYMOUS S ENDS IT OUT SO EVE RYBO DY GET S T HE MAIL AND IT SAYS AA , M AD D BUT IT CAN 'T S AY T HE T IC KE T CLINIC ? LET M E A SK Y OU THI S :.

JUSTICE: THE R EF ER EE 'S DETERMINATION WAS BASED O N THE 1ST AME NDMENT, O N T HE CONSTIT UTIONAL GROUNDS SO ASSUMING FOR A MOMENT THAT WE REVERSE O N T HAT ISSUE , ALL OF THE SE O TH ER I SS UE S ABOUT WHETHER THE ADVERTISEMENT OR THE MAILING WAS FALSE O R MISLE AD IN G , WHETHER IT SHOULD HAV E CONTAINED A DATE , WHE TH ER T HE SAM E R EC ENTL Y G OT SOMEBODY OFF W AS M ISLEAD IN G , ALL O F THOSE T HINGS C AN BE RETURNED TO THE REF EREE FOR THE PROCEEDINGS. CORRECT?

YES, AND IF YOU AFF IRM O N THE E NVELOPE T HA T I T VIOLA TES THE F IRST A ME NDME NT ON PRIVACY G RO UN DS A ND Y OU COULD SEND IT BACK O N T HE ART ICLES AND ASK THE C OURT TO LOOK AT THEM IN LIGHT O F THAT, THAT COULD H AP PEN. OR THE BAR COULD WRI TE MR. GOLD A LETTER AND SAY, YOU KNOW, WE HAVE L IS TE NED TO THE TAPE OF THE ORAL ARGUMENT AND WE WANT YOU TO TAKE OUT THAT LITTL E P OR TION AND I'M SURE H E W OU LD . BECAUSE REMEMBER THAT HAS NEVER BEE N R AI SED. THIS IS A VALID P OI NT B UT I T NOT ANYTHING THAT WAS R AISE D , BUT IT IS NOT ANY TH IN G THAT MR. GOLD HAD TO DEF END A GAINST .

CHIEF JUSTICE: YOU A RE OUT OF TIME BUT WHAT I A M UNDERSTANDING IS THAT YOU, T HE M AJOR O BJ EC TION RIG HT NOW THAT IS HE SHOUL D B E REPRIMANDED OR DIS CI PLINED FOR S OMETHING THAT HAS BEE N AN OVE RSHO T O N THIS W HOLE THING I S BAD A ND YOU R POSITION IS THAT AT T HE V ER Y LEAST WE SHOULD RET UR N IT BACK TO THE R EF EREE .

I THINK Y OU S HO ULD AFFIRM ON THE ENVELOPE , O N THE E NVELOPE C ON TENT S. I THINK THAT THE CONSTITUTIONAL ARGUMENT W AS WEL L. ON THE N EW SPAPER ARTICLE CLAIMS I THINK YOU SHOULD AFFIRM. AT A MINIM UM , I F Y OU DON 'T WANT TO AFF IRM AND YOU WANT TO DEAL WITH THE O FF EN DING PART TO SEND IT BACK TO T HE COURT ON THAT ISSUE . BUT I B EL IE VE T HA T THE L OWER COURT WAS RIGHT O N THE CONSTITUTIONAL PART I DON'TTHINK THE B AR HAS MET THE STANDARD TO SHO W A COMPELLING STATE INTEREST W ITH RESPECT TO TAKE AWA Y THE COMMERCIAL FIRST AMENDMENT RIGHTS.

CH IEF JUSTICE: THANK YOU, MR. KLUGER. REBUTTAL ? > > THE THRUST OF THE B AR'S INTEREST IS JUST W HA T JUSTICE ANSTEAD STATED A ND THAT I S BEC AUSE JUS T B EC AUSE SOMETHING APPEARED IN A NEWSP APER A RT ICLE D OE SN'T MEAN THAT A LAWYE R C OULD TAKE THAT. DESPITE THE CONTENT , A ND RUN IT OVER AND OVER AGA IN A S A LAWYER ADVERTISEME NT , A ND THE FACT THAT T HE W OR DS O R ORI GINALLY IN A N EWSP AP ER ARTICLE DOES NOT INSULATE THE LAWYER FROM DISCI PL INE . WE URGE THE COURT NOT T O ALLOW THE R ESPO ND ENT T O C IRCUMVENT THE R UL ES REGULATING THE BAR JUS T BECAUSE HE IS U SING NEWSPAPER A RT ICLES T O STATE WHAT H E I S OTH ER WI SE N OT ALLOWED TO STATE I N A N A DVERTISEMENT, AND BY APPROVING THE RULING OF THE REFEREE BELOW , I T WOU LD CREAT E AN EXCEPTION TO T HE RULES WHICH CURRENTLY DOES NOT EXIST F OR S TATE ME NT S . O THERWISE P RO HI BI TE D A S BEING MISLEADING S IMPL Y BECAUSE THEY ARE C ONTAIN ED IN R EPRI NTS O F N EW SPAPER ARTICLES.

CHIEF JUSTICE: BUT ON THE OTHER HAND YOU AGREE THAT THERE ARE M ANY PARTS OF THE NEWSPAPER ARTICLES THAT D O NOT C ONTAIN S TA TEMENTS THAT WOULD BE IN VIOLATION O F T HE RULES , S O I S T HE B AR R EA LL Y AGAINST NEWSPAPER ARTICLE S BECAUSE OF THE PAR TS THA T DEAL WITH RESULTS O BT AI NE D?

THE ISSUE I S T HE W OR DS CONTAINED IN THE ADVER TISEMENT, A ND THO SE STATEMENTS THAT ARE A T ISSUE HERE ARE THE STATEMENT S THAT ARE DEE ME D TO B E I N VIOLATION OF THE RULES .

CHIEF JUSTICE: THA NK YOU FOR YOUR TIME. THE COURT WIL L T AKE THE MATTER UNDER ADVISEMENT BUT THIS DOES SEEM LIKE A GOOD CASE WHERE IT S OUNDS LIKE SOM EHOW THE BAR AND T HE RESPONDENT COULD END UP WORKING THIS MATTER OUT . JUST MY OWN O BS ERVA TION. THANK YOU.