confused a little bit so maybe you can clarify when you get into that argument i understand kind of tell a one and i have read it carefully but the holding at the end of the case specifically talked about your having prudential standing and said that there is not a better time to try the case but the court never made a holding on article three standing it mentioned it but it never held on article three standing so we have really it seems to me before this news case article three standing so in your argument because i think this is a critical area i would like to know in your argument if you could tell me what is the it's something else and you argue maybe you could focus my attention on that thank you are i think i think what we're saying is we're saying that these statutes reach too broadly and cover a lot of protected attorney speech is essentially that's what we're saying and we're saying that the that the over breadth of these statutes is more likely because of the ambiguity of the terms that we're dealing with and that there is no question in our mind at least that these statutes reach a substantial amount of protected speech attorneys speech because each one of the statues talks about for example in subdivision see sixty sixty sixty you see it talks about actions proceedings or defenses all what essentially attorney conduct in a  any in a proceeding that appear to him or her legal or just which means that the attorney has to be determined it has to be determined whether the attorney speech was legal or sixty eight c but the district court cited a number of cases none of which were in the attorney speech context and none of which addressed the textual problem that you have my understanding is a statute is designed to further a compelling interest of some kind and the state claims of course that the protection of the public and the professional standards are very important interest but that's not which until he says you know and gentilly i think we got to start with you until legion tilly says that the only time we're going to see a compelling state interest is if the attorney his speech is confronting or conflicting with something like the right to a fair trial under the sixth amendment and we will find that speech does not further or does further a compelling interest that we find the state can regulate that kind of speech because it's important to fair trial predominates in a situation where some attorneys have a press conference but but here what we have here is we have no connection to our understanding between furthering high professional standards taking the public what does that mean and what's what's that got to do where does it connect it for example an attorney can only bring actions or proceedings that are legal or just that's very difficult and we don't have the answers to that i don't is there a specific injury that you're alleging  generalities so far but what is your specific injury that you're alleging i think at the core use talking article three standing we have something different here we have a pure over d case here we're not we have no fact case here we're simply saying that the statutes that we confront every day is based that is this court said in cannot tell a one has no doubt judges where i started was the law of the case at least i think is that i can stand here representing other attorneys and i can say to you what's a marvelous a district judge stanly weigel taught me a lesson long ago he said can't cuss what's your best case and i said i got to give you my best case well i've got two cases here i've got one shot which you took offense of personality and concluded that that was you argue did it that the opinion reads like an over breath traditional but the case actually says we decided on vagueness grounds so i believe it i believe it's a fair conduct that you're trying through further an interest about then you are not going to have any trouble striking it down but but we got a good case to that's not an attorney speech case but that's reno and reno and the child here we have i don't encourage the commencement or continuance of an action for many corrupt motive of passion or prejudice whose motives the attorneys the bar court the client these these statutes can be narrowly tailored that there's not now that district court read it in a way that was that was kind of creative where he focuses on frivolous fixation misleading speech but there's a lot more to this case than frivolous vexatious and misleading speech it's all about what attorneys do in their official capacities counseling clients advocating on their behalf with that similarly with the commission of any act and whether the act is in the course of an attorney's relations and yet that is moral turpitude dishonesty or corruption i can think of a lot of scenarios where clients come in and they say please get me redress against my adversary and and  there's any question about that i think that's the line that tourney cannot be disciplined for bringing an action that is based on probable cause i believe but under this statute it could be that your acting in moral  courts for pressing the point for example reached you to kind of was my primarily big problem i asked for i asked for to reopen cases and that's where i got hurt badly i had one sanction that was a sorenson sanction i got in trouble with a with a with a reporter many years ago but but since then since since all this is the sanctions explosion in  very well aware one nine hundred eighty one nine hundred eighty three it started with rule eleven and and i got caught in the middle of that but i'm not justifying what happened to me or exonerating my conduct i'm only saying that the statutes can sweep in a lot of what attorneys do every day in their official capacity and that is not right if you want to discipline an attorney for a for example a corrupt motive  incident to something then say it if you want to discipline attorney for taking a legal or unjust action that is frivolous i guess say that none of these statutes give us any guidance of all on what we can say or what we can't see that's a fact and this is the the interest the bar offers to just the fly each of these rules remember we're talking about attorney speech and we're talking about i might add political speech what attorneys do is quintessentially political even the gentilly court concluded that way and in the gentilly court found that his speech political overtones will see all attorneys speech as political overtones we're going to a court who's an authorized official to grant relief in a particular case we talk about equity and policy and all of these different things so these kinds of this kind of conduct has to be protected because political speech is quintessentially first amendment protected a particular constitutionally protected speech you're still in generalization you don't allege anything here specific here of what might happen and i'm not sure that we have power to grant based upon that how do we come to grips with long quiet time it was not good enough to get you in court i appreciate because of fear is no good but what we're doing here is something else we're here on a broad  tight first the first amendment overbred case this is the one area under stand over but i think it's your honor but i don't know of a case that says you can say it's over breath therefore i don't have to allege any concrete fact at all anything specific that i'm i'm concerned about i don't know how to deal with it in the generality it and you sympathize with the supreme court the supreme court is having problems with this over breath doctrine too and they have articulated in a number of cases that it's going to be reserved for that very narrow area of speech protection and that's where we are here that's why we can come into this court without a fact based record that's why first amendment speech is so prized that we can do this it's a unique situation i prefer completely appreciate the court's remarks about article three it's the parcher it's not a traditional fact based case and i only am here because i read the prior opinion to be sufficient to give me potential standing to stand up here and make briefs so apparently you have the same difficulty as your adversary of not raising the question but we have to we have no choice and bell requires a city do so before we go further so we do appreciate your in light meant  even though it's not been briefed of why this case does or doesn't have article three standing well your honor as as i remember article three standing in lieu hand versus defenders of wildlife requires three things any injury in fact that is redress of all of by the court and some sort of imminence or likelihood let me give you some help  from a prior case of ours an actual or threatened injury or injury in fact is an invasion of a legally protected interest which is a concrete and particularized and b actual or in meant not conjectural or something so specific thank you your honor i believe when i look back at the court's analysis in this case of mr counterintelligence standing the court felt that there was a collision course that mr can you tell and the state bar were philosophically on a collision course using language i think from burner and that there is no better time than now to decide his  he feels that he has a right to a first amendment right to repeat the types of expression for which he was disciplined and this court said that the state  bar would discipline him again for that so that in that sense if mr kennett tele is expressing a first amendment protected first amendment right in those close quote and at that time mr can tell that took the position that it's not about what you do before it's about what he wants to do no i agree your honor and i really find myself in a rather awkward position up here arguing  that there is standing when in fact i would very much like for there not to be in some ways we were something in in some of the same position i suppose as other attorneys faced with a particular question here can we in good faith make the argument that mr cannon tell you no longer has standing or does not have standing to bring this case and when i look at footnote fourteen your honor the court said that we do not imply that the mere existence of the challenge provisions gives rise to an injury sufficient for standing purposes instead it is candid tell us history with the california bar his continuing activities as a zealous advocate and the nature of his challenge to the provisions lead us to conclude the requirements for standard are met in his complaint we did argue and i continue to believe that mr can you tell it has no standing to raise an equal protection challenge which he did try to raise in one of his amended complaints and i would also argue that that there is no imminent threat of injury to mr cannon tell us first amendment rights  unless he so truly does not understand the obligations and responsibilities of our profession if he so truly does not understand them then we must look at whether that lack of understanding is a reasonable one in light of what is expected of a member of the bar and what is expected of a member of this bar or at any other bar is that those attorneys know the difference between a legal and just cause of action they know the difference when a client or when they are attempting to use the process of the court to abuse the integrity of the system to harass or delay to bring a cause of action that has no merit system for the sake of getting to the argument that you've actually briefed that there is constitutional standing and the court has held that that before that there is prudential standing what does he have to  ege in the area of over breath in order to allege of cause of action that can go forward in your view how specific does he have to make his challenges i think his challenge your honor has to specific enough to show that there is a substantial a substantial overbred factor and effect on protected first amendment conduct and that hasn't happened here we have to go through each statute and regulation and ask that question each time yes your honor you do that is not to say however that each statute and regulation can or should be read by  itself most of the statutes that mr khanna tell is attacking are to be read together they have to do with the whole question of abuse of the integrity of the courts and with the exception of the two statutes one involving obeying a court order and the other involving acts of moral turpitude everything at issue here has to do with using our privileges as members of the legal profession to bring actions in the courts in a way that they should not be used in other words our privileges are given to us as members of the bar and we are a part of a legal profession that has a very long history of what is expected of us particularly in relationship in our dealings with the courts and it is our duty to try to protect the chords from our clients use or attempted use of those  courts for improper purposes and we all know what those are we all know when someone is bringing an action for an improper purpose to delay or harass it is simply not credible that a member of the bar who has gone through all of the training that he has gone through who has had the ability to conduct legal research to find what the case law is on frivolous actions to find the many rules that govern issues involving frivolous actions it is simply not credible that someone with that kind of training who has been given the privilege of being a member of the bar would not know what is prohibited now i do believe your honor that when we look at the over brett claims there simply is nothing in his complaint nor can i frankly imagine a situation in which there is substantial overbred on the part of any of these statutes or rules  failed to do that you think he should have done to get it frankly i don't think we have any concrete examples of protected speech being  again it's a question of what every attorney is required to know and what every attorney is required to know is that we have an obligation to zealous represent our clients and to make all legitimate arguments that we can including to press for the extension or modification i as a lawyer your argument it is time to stand it correctly that he has to allege concrete and particularized injury to these lawyers overgrowth and you're saying just saying it isn't enough what's your best case saying that he cannot get by on that generalization and  to allege something more specific your honor i think we'd be looking at broaddrick for the substantial part of it see and this court's opinion in and gentile itself that the gentile case really looks at the question of whether the particular speech at issue is conducted we have to look at who is is actually claiming the right to make the speech and in gentile it's very clear that attorney speech can be regulated in a way that non attorneys speech cannot and the gentile majority makes that particularly clear with respect of course to in court speech and it's our position and i think it's  hard to to dispute that in court speech goes beyond what happens literally in this courtroom in court speech includes filings and pleadings that are made with the court in court speech  i believe includes encouraging the filing of baseless lawsuits because even if the attorney herself does not file the paper the client or the person whom she has encouraged to do that can do that or may do that pro se and so in court speech when we come to the issue of abuse of the integrity of the process by filing vexatious types of litigation has a broader a broader definition than simply what happens literally within this court so over bred and in this case must be viewed in the context of the facts an issue here and enough to say that over bred you know might chill somebody else's speech we're talking about lawyers and it's the lawyers who are open to discipline as a result i take it from your argument the overgrowth argument would not extend to the other challenges that you he's made under the first amendment etc overgrowth analysis those are are much more related to conduct they do not sweep the way a statute that is addressed purely to expression does so over breath would not apply in the same vagueness with respect to those particular statutes would be the classic due process vagueness not the first amendment vagueness kind of application it's the village of hoffman and that's part of the confusion i believe as to standing because he is claiming the right to bring facial challenges and only facial challenges to all of these statutes you can't tell i have said that the district court applied the wrong test to the various statutes at issue here if anything the district court applied a very speech protective perhaps overly speech protective test because it used the gentile test for out of court speech and also used a balancing test for any  aspect of these particular statutes that might cover speech in cases that are not yet pending so in that sense the district court was very careful to apply a very speech protective test  cannot say that there was anything wrong with the test that the district court used here i have really very little if anything to say on viewpoint in a trial of the argument that mr cantell makes i frankly cannot see how any viewpoint is at all discriminated against or targeted by any of the statutes at issue here  and finally we we do believe however that the district court erred in not dismissing the state of our court judges as individual defendants in this case  court's opinion in grant versus johnson very squarely holds that a judge does not have the kind of sufficient interest proper defendant in a case challenging the constitutionality of the statue having taken across appeals to that point well your honor we cited a couple cases in our brief in a footnote as to why across the people was not that's that's really not the case if these statutes were found not to be constitutional the state bar court would still have other responsibilities for disciplining and certainly there would be no doubt that the legislature and the california supreme court would change the rules to conform to any ruling so the state park court judges simply do not have a vested interest in the constitutionality of these particular attorneys by the lore of the profession by the privileges of the profession by their training and experience they know what is prohibited and what is permitted now that same argument was flat rejected by this court in watch they made the very same argument there they said attorneys are bound to know what offensive personality means and this court rejected it as being circular and you're an a orney so you know but that doesn't meet first amendment speech protection requirements in order to meet first amendment speech protect protection excuse me the state has to have a compelling interest number one and then they have to narrowly tailor their statute we can't depart from the statutes by the lore of the profession or by what attorneys are supposed to know or what their duty bound to know we have to look at the language themselves and we ask the question do they reach enough speech and i'm i'm confident that facial glance at these statutes shows that there's simply enough speech involved in actions proceedings encouragements and all the different language that's used so as far as the bar's argument that you know it when you see it it's not sufficient it has to be connected your interest in the public interest in protecting the public in maintaining high professional standards all the things that the district judge said has to be connect between those interests and what's being written down as being prescriptions i want to turn the speech there has to be now the next point is the wrong test  didn't mention this case although we did it in our brief we did mention it in our brief case called the last ques and and the bar of course responded to that case and attempted to distinguish it on the ground that but the supreme court's said some very protective things about attorney speech in that case and i would cite that case to the court and we have cited it as being a mindset that the court the united states supreme court has concluded that attorney speech is something to be reckoned with and it should be protected and it was protected in that case making claims on behalf of the welfare recipients that these attorneys were representing and i believe that it is probably the best pronouncement today that we have from the supreme court on the respect that the court feels toward attorney speech  content based content neutral how can you talk about those subjects when you have inherent ambiguities in the sections we don't know whether they're content based or not we don't know whether an argument that is legal or just can be determined to be content based or not it's the problem of ambiguity we don't have to win this case on a vagueness challenge we can win this case if the court feels that the statutes are overbroad and there's not a sufficient connected compelling interest to the language of the statutes and that the court finds nothing ambiguity in the statutes that threaten protect that expression it turned out that it was found to be wanting and discipline a ball and it was actually the bar statute that was used to discipline certain sanctions based on that this is you know the your time is not comparable if you have one last thing you'd like to make but like our best point that we put forward in the briefs was the district court's application of an incorrect standard so