A federal judge on Tuesday dismissed a lawsuit that sought to ban the Utah State Bar from disciplining a personal injury law firm based on its ads touting the services of “The Advocates.”
In his dismissal order, U.S. District Judge Bruce Jenkins said the firm, Driggs, Bills & Day, has an adequate opportunity in state proceedings to raise the constitutional challenges it has brought in the case. He noted that the Utah Supreme Court has held that “the constitutional promise of a meaningful opportunity to be heard is unquestionably available in attorney discipline proceedings.”
Attorney Ben Hathaway, who represents the law firm, said he is disappointed about the ruling.
“We were hoping to have the federal court review the First Amendment issues in light of our inability to have those considered by the Bar in advance,” he said.
But Andrew Morse, an attorney who represents the Bar, applauded the ruling, saying it is best to let the state — rather than the federal court — handle lawyer discipline.
The law firm filed suit in August saying that the Bar’s Office of Professional Conduct had opened an investigation into The Advocates’ advertising practices, especially its so-called “celebrity endorsement” ads, which are voiced by radio personalities.
The suit contends the ads “convey truthful facts, in an honest straightforward way” and do not violate the Utah Rules of Professional Conduct.
The firm’s television advertisements for The Advocates often feature a lawyer hiking or spending time with his family when a phone call comes in and he drops everything to help an injured client. On the radio, a disc jockey might talk about how the law firm is available 24 hours a day, seven days a week, or one of it lawyers explains how they are different from other firms.
Investigators with the Office of Professional Conduct have cited an opinion from the Bar’s ethics advisory commitee that found lawyers violated attorney rules if they use “celebrity endorsements,” according to the Driggs, Bills & Day suit.
But the law firm contends the live ads are protected speech and its suit asked Jenkins to stop the Bar proceedings by finding the rules violate lawyers’ First Amendment Rights.
The Bar’s process for investigating disciplinary issues is largely secret, and documents do not become public record unless a lawyer is referred to the courts for discipline. No attorney discipline cases had been filed in court against The Advocates’ lawyers as of Tuesday.
Editor’s note: Michelle Quist serves as a Utah State Bar commissioner and is a named defendant in the federal lawsuit. She is also a member of The Salt Lake Tribune editorial board.