Neely v. Commission for Lawyer Discipline

"[S]ufficient evidence supports both the trial court's professional misconduct ruling and the sanctions imposed by the trial court and that the trial court did not violate Neely's free speech rights under the First Amendment."

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Click here for the full text of this decision FACTS:Appellant, George R. Neely, appeals from a judgment that he engaged in professional misconduct in violation of Rules 7.02(a), 7.03(a), 7.04(j), 7.05 and 7.07 of the Rules of Professional Conduct (Part VII). Trial was to the court, which also imposed disciplinary sanctions on Neely. The sanctions included a three-year suspension from practicing law, including a nine-month active suspension. The trial court also awarded attorneys’ fees to the Commission for Lawyer Discipline. The facts, according to the court of appeals’ opinion, are as follows: Oct. 15, 2003, Neely and another attorney agreed to represent a client “and others to be signed up by either you or me” for claims against a homebuilder, for alleged structural problems with homes in Sugar Land. Neely arranged a meeting of “interested homeowners” and, in November 2003, published a notice about the meeting in the advertisement section of a newspaper. The meeting was held Nov. 23, 2003. At the meeting, Neely placed a stack of his r�sum�s on a table available to any interested attendees. During the meeting, Neely explained that he might file a class action suit against the homebuilder and that he handled his cases on contingency. Neely told one attendee that attendees had the option of hiring Neely as their counsel. Further, Neely joked with another attendee by stating that “maybe you should have hired me.” After the meeting, at least two attendees received follow-up calls from Neely’s co-counsel regarding filing claims. Neely, or his co-counsel, also signed up at least three clients after the meeting was held. In June 2004, Neely ran a second notice in the newspaper stating that a class action suit had been filed against Village Builders. In July 2004, Neely hired a firm to take over the case. On Aug. 4, 2004, the firm amended the original petition by dropping the assertion of the class action suit, opting instead to pursue individual cases. On Oct. 7, 2004, the appellee, Commission for Lawyer Discipline, filed a disciplinary action against Neely. The case was tried to the bench on March 17, 2005, and the trial court signed its final judgment of partially probated suspension on March 31, 2005, imposing sanctions against Neely for professional misconduct in violation of Rules 7.02(a)(1)-(2); 7.03(a); 7.04(b)(1), (b)(3), (j); 7.05(a)(3), (b)(1)-(2); and 7.07(a), (b)(1), (b)(3)-(4) of the Disciplinary Rules of Professional Conduct. The sanctions included a three-year suspension from practicing law, including a nine-month active suspension. The trial court also awarded attorneys’ fees to the commission. HOLDING:Affirmed. For a legal communication to be subject to Part VII of the Disciplinary Rules of Professional Conduct, it must be commercial speech that proposes professional employment by suggesting “[t]o the public, or a specific individual, that the lawyer’s professional services are available for hire.” The second notice suggests a commercial transaction on its face by indicating that a class action had been filed, seeking recovery of damages against a specific defendant for specific plaintiffs, homeowners who qualified as class members. There was sufficient evidence for the trial court to find that the second notice was disseminated for the purpose of obtaining professional employment and violated Rule 7.02(a), and contrary evidence neither renders the evidence in support of the trial court’s judgment incompetent nor conclusively establishes the opposite of the trial court’s judgment. Because Part VII is intended to regulate communications made for the purpose of obtaining professional employment, a reviewing court, after determining from the face of the communication that an attorney is proposing a commercial transaction and thus the speech is commercial, may consider extraneous evidence that the communication was made for the purpose of obtaining professional employment in violation of Part VII. The court concludes that there was sufficient evidence for the trial court to find that Neely intended to obtain professional employment by informing potential clients of the meeting through the first notice. The court concludes that the second notice omits information regarding Neely’s identity as an attorney and is not susceptible to reasonable verification by the public, and, therefore, it is materially misleading. “Although the notice contains Neely’s name and phone number, it is inherently misleading because the only way a person could know that Neely was an attorney would be to call and ask him, and there was no way for a person to evaluate whether he wanted to speak to an attorney before contacting Neely’s office.” The court also finds that the second notice is inherently misleading, because it implies that a class had already been certified and that members of that class would be eligible for damage recovery. The court concludes that the second notice was materially misleading commercial speech, and, therefore, Neely’s free speech rights were not violated. Weighing all the factors for imposition of sanctions in Texas Rules of Disciplinary Procedure 3.10, the court concludes that the trial court was within its discretion in imposing the sanctions on Neely. OPINION:Alcala, J.; Radack, C.J., Alcala and Bland, JJ.

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