* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 3 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

PETER M. MCDEVITT,

Plaintiff-Appellant,

v. DISCIPLINARY BOARD OF THE SUPREME COURT FOR THE STATE OF NEW MEXICO; LARRY RAMIREZ, Chairman; CHRISTINA ARMIJO; MICHAEL D. BUSTAMANTE; GREGG W. CHASE; CHARLES W. DANIELS; PATRICIA B. MURRAY; WARREN F. REYNOLDS; ALEX ROMERO; FREDDIE J. ROMERO; SARAH M. SINGLETON; RAYMOND HAMILTON; RICHARD L. GERDING, in their official capacities; TOM UDALL, Attorney General,

Defendants-Appellees. No. 96-2094 (D.C. No. CIV 94-383) (D.N.M.)

ORDER AND JUDGMENT *

Before ANDERSON, KELLY, and LUCERO, Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff/appellant Peter M. McDevitt appeals from the district court’s order dismissing his complaint for injunctive and declaratory relief against defendants/appellees. We affirm. Appellant is a licensed attorney in the State of Ne w Mexico. His primary area of practice has been representing consumer deb tors in proceedings under Chapters 7 and 13 of the United States Bankruptcy C ode. He has advertised his legal services in the yellow pages of various telep hone directories and in various
newspapers. In 1992, the New Mexico Supreme Court adopted revis ed legal advertising rules. See SCRA 16-701 through 707 (1995 Repl.) (as amended, effective August 1, 1992). Rule 16-707(B) requires any lawye r who advertises services through any public medium to file a copy of the adv ertisement with the Legal Advertising Committee of the Disciplinary Board (Co mmittee) for evaluation of compliance with the legal advertising rules. The Rule further provides that the copy shall be filed either prior to or concurrently with the lawyer’s first dissemination of the advertisement. See id. A filing fee of $50 per submission,-3-

payable to the Disciplinary Board, must accompany t he filing. SCRA 16-707(D)(4) (1995 Repl.) (as amended, effective A ugust 1, 1992). Appellant failed to submit certain advertisements t o the Committee. The Committee requested disciplinary counsel for the Di sciplinary Board to commence disciplinary proceedings against appellantfor his failure to comply with the filing and fee payment requirements outlin ed above. Disciplinary proceedings were commenced against appellant for vi olation of the filing and fee payment requirements. During the disciplinary proc eedings, appellant attempted to raise a constitutional challenge to the Rules; h owever, the hearing panel appointed by the Disciplinary Board held that the p anel was not empowered to consider the constitutional issues appellant raised

. The hearing panel found that appellant had violated Rule 16-707(B), and recommended that he be formally reprimanded and pla ced on probation. The Disciplinary Board adopted the hearing panel’s reco mmendations, and recommended to the Supreme Court of New Mexico thatappellant be issued a formal reprimand, but that imposition of the reprim and be deferred on the condition that appellant submit all of his advertis ements to the Committee for review and that he comply with all other requiremen ts contained in the Rules. Appellant filed a petition for review of the panel’ s decision with the Supreme Court of New Mexico, which summarily denied the pet ition.1 Appellant also asserted a claim, before the distric t court, that the

submission requirement violated his First Amendmentrights because some Committee members were also attorneys in active pra ctice who had a bias or inherent interest in rejecting advertisements from competing attorneys. He has not renewed this argument on appeal. -4- Appellant thereafter filed this action in federal d istrict court, asserting that New Mexico’s procedure for reviewing advertisements violated his First Amendment rights because (1) the requirement that h e submit the advertisement to the Committee constituted a prior restraint; (2) the submission procedure unduly burdened his right of commercial speech; and(3) the requirement that he pay a $50 fee was an unconstitutional tax on speech . The district court dismissed appellant’s prior restraint claim, and granted summ ary judgment on the other two claims. 1
We review de novo the district court’s order dismis sing for failure to state a claim, see Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 854 (10th Cir. 1996), and its grant of summary judgment, see David v. City & County of Denver , 101 F.3d 1344, 1355 (10th Cir. 1996). In reviewing summary judgment, we apply the same standards as the district court. See id. Factual disputes must be resolved and inferences drawn in favor of the nonmoving party. See id. “Summary judgment is warranted only if the uncontroverted material fa cts establish that the moving party is entitled to judgment as a matter of law.” Id.-5-

1. Prior restraint Appellant contends that the advertising rules are c onstitutionally invalid because they impose a prior restraint on the conten t of his advertisements. His contention is without merit. “Governmental action constitutes a prior restraint when it is directed to suppressing speech because o f its content before the speech is communicated .” Cummins v. Campbell , 44 F.3d 847, 853 (10th Cir. 1994) (emphasis added) (quoting O’Connor v. City and County of Denver , 894 F.2d 1210, 1220 (10th Cir. 1990)). Rule 16-707(B) allow s appellant to submit his advertisement either in advance orconcurrently with its first publication. So long as he submits his advertisement concurrently with i ts first publication, any disapproval must inevitably occur not prior to, butfollowing, the dissemination of the advertisement. Moreover, the Committee is not empowered to restrai n publication of a noncomplying advertisement. In the event it finds that an advertisement is not in compliance with the applicable rules, the Committee may only advise the attorney that continued publication may result in profession al discipline, see Rule 16-707(G), and report the results of its inves tigation and make recommendations to the disciplinary counsel, see Rule 16-706(C).-6-

2. Burden of submission procedure-7-

Appellant argues that the submission procedure plac es an undue burden on his First Amendment right to advertise his legal se rvices. While the courts generally accord speech by attorneys on public issu es and matters of legal representation the strongest protections the Consti tution has to offer, a lesser degree of protection is reserved for purely commerc ial advertising. See Florida Bar v. Went For It, Inc. , 115 S. Ct. 2371, 2381 (1995). Attorney standards and conduct have traditionally been subject to extensiv e regulation by the States, making it particularly appropriate to apply only li mited scrutiny to state regulations concerning attorney advertising. See id. In analyzing such restrictions, the courts apply “intermediate” scrut iny, using the framework set forth in Central Hudson Gas & Electric Corp. v. Pub lic Service Commission , 447 U.S. 557 (1980). See Went For It, Inc. , 115 S. Ct. at 2375-76. Under Central Hudson , courts apply a four-part analysis to regulation o f commercial speech. First, the court determines whe ther the expression is protected by the First Amendment. Central Hudson , 447 U.S. at 566. The government may freely regulate commercial communications which are misleading or related to unlawful activity. See id. at 563-64. Commercial speech which falls into neither of these categories may be regulated only if the government satisfies the three remaining portions o f the test. The government must assert a substantial interest to be achieved b y the restriction. Any restriction-8-

must directly advance the state interest involved. Finally, the regulation must be narrowly drawn. See id. at 564-66; see also Went For It, Inc. , 115 S. Ct. at 2376. The state here asserts its interest in ensuring that the public receives truthful, relevant and meaningful information regar ding its need for attorneys, the availability of legal services and the cost of such services. This interest is substantial. See Edenfield v. Fane , 507 U.S. 761, 769 (1993). However, as the challenged regulation impacts both truthful and dec eptive or inaccurate speech by requiring that all advertisements be filed, the state must also satisfy the remaining two elements of the Central Hudsontest. See Edenfield , 507 U.S. at 768-69. To satisfy the third element of the Central Hudson test, the state must show a real harm to its asserted interest which the rest riction will alleviate to a material degree. See Rubin v. Coors Brewing Co. , 115 S. Ct. 1585, 1592 (1995). The state presented a summary of evidence gathered by i ts Task Force Committee concerning public attitudes toward attorney adverti sing, discussing studies which show that the public’s regard for the trustworthine ss, honesty and professionalism of lawyers has been adversely affected by attorney advertising. The Task Force Committee studied various rules that have been prop osed in other states to regulate attorney advertising, and, with considerab le participation by the State Bar Commissioners, New Mexico attorneys, and the New Me xico Supreme Court, and an opportunity for public comment, it developed its own rules which it claims are2 Appellant argues that the state’s use of a newspape r clipping service would

provide a less intrusive method of supervising lawy er advertising. He has submitted no evidence on either the costs or feasib ility of using a clipping service. He does not explain how a clipping servic e would provide a good substitute for several requirements found in the cu rrent rule: that attorneys submit a copy of the advertisement in the form in which itis to be disseminated, including videotapes or audiotapes, that they file a transcript in the event that the advertisement is transmitted by means of audio or v ideo media, and that they (continued...) -9- designed to foster rational, intelligent and volunt ary decision-making on the part of the public concerning legal services. The Supreme Court has implicitly endorsed the abili ty of supervisory filing and review systems such as the one now in use in Ne w Mexico to alleviate harms associated with attorney advertising. Moreover, th e Court has noted that a filing system is a narrowly-tailored means for addressing such harms. In Shapero v. Kentucky Bar Association , 486 U.S. 466, 476 (1988), the Court, in discussin g direct-mail solicitation, noted as follows: The State can regulate such abuses and minimize mis takes through far less restrictive and more precise means, the mo st obvious of which is to require the lawyer to file any solicitation letter with a state agency, giving the State ample opportunity to supervise mailings and penalize actual abuses. (citations om itted) See also In re R.M.J. , 455 U.S. 191, 206 (1982) (suggesting a system of filing all general mailings with the Advisory Committee as a “ less restrictive path” for ensuring supervision). We conclude that the remain ing elements of the Central Hudsontest are met here. 22 (...continued)

detail the anticipated frequency or use of the adve rtisement and the time period during which it is to be run. See Rule 16-707(D). -10- 3. Payment of filing fee Finally, appellant argues that the requirement thathe pay a $50 fee to the Disciplinary Board for each submission of advertisi ng for review constitutes an unconstitutional tax on speech. Rule 16-707(D)(4) specifically provides that the filing fee will be used solely to defray the cost o f administering the Rules. A fee of this sort, which is used to meet expenses incide nt to the administration of a regulatory statute governing exercise of a constitutional right, does not constitute an unconstitutional infringement of that right. Se e, e.g. , Cox v. New Hampshire , 312 U.S. 569, 576-77 (1941) (upholding license fee on parade). The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge