* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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.
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After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The 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 New Mexico. His primary

area of practice has been representing consumer debtors in proceedings under

Chapters 7 and 13 of the United States Bankruptcy Code. He has advertised his

legal services in the yellow pages of various telephone directories and in various

newspapers.

In 1992, the New Mexico Supreme Court adopted revised legal advertising

rules. See SCRA 16-701 through 707 (1995 Repl.) (as amended, effective

August 1, 1992). Rule 16-707(B) requires any lawyer who advertises services

through any public medium to file a copy of the advertisement with the Legal

Advertising Committee of the Disciplinary Board (Committee) 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 the filing. SCRA

 16-707(D)(4) (1995 Repl.) (as amended, effective August 1, 1992). 

Appellant failed to submit certain advertisements to the Committee. The

Committee requested disciplinary counsel for the Disciplinary Board to

commence disciplinary proceedings against appellant for his failure to comply

with the filing and fee payment requirements outlined above. Disciplinary

proceedings were commenced against appellant for violation of the filing and fee

payment requirements. During the disciplinary proceedings, appellant attempted

to raise a constitutional challenge to the Rules; however, the hearing panel

appointed by the Disciplinary Board held that the panel 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 placed on probation. The

Disciplinary Board adopted the hearing panel’s recommendations, and

recommended to the Supreme Court of New Mexico that appellant be issued a

formal reprimand, but that imposition of the reprimand be deferred on the

condition that appellant submit all of his advertisements to the Committee for

review and that he comply with all other requirements 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 petition.
1 Appellant also asserted a claim, before the district court, that the

submission requirement violated his First Amendment rights because some

Committee members were also attorneys in active practice who had a bias or

inherent interest in rejecting advertisements from competing attorneys. He has

not renewed this argument on appeal.

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Appellant thereafter filed this action in federal district court, asserting that

New Mexico’s procedure for reviewing advertisements violated his First

Amendment rights because (1) the requirement that he 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 summary judgment on the other two

claims.1 

We review de novo the district court’s order dismissing 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 facts establish that the moving

party is entitled to judgment as a matter of law.” Id.
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1. Prior restraint

Appellant contends that the advertising rules are constitutionally invalid

because they impose a prior restraint on the content of his advertisements. His

contention is without merit. “Governmental action constitutes a prior restraint

when it is directed to suppressing speech because of 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) allows appellant to submit his

advertisement either in advance or concurrently with its first publication. So long

as he submits his advertisement concurrently with its first publication, any

disapproval must inevitably occur not prior to, but following, the dissemination of

the advertisement. 

Moreover, the Committee is not empowered to restrain 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 professional discipline, see

Rule 16-707(G), and report the results of its investigation and make

recommendations to the disciplinary counsel, see Rule 16-706(C). 
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2. Burden of submission procedure
-7-

Appellant argues that the submission procedure places an undue burden on

his First Amendment right to advertise his legal services. While the courts

generally accord speech by attorneys on public issues and matters of legal

representation the strongest protections the Constitution has to offer, a lesser

degree of protection is reserved for purely commercial advertising. See Florida

Bar v. Went For It, Inc., 115 S. Ct. 2371, 2381 (1995). Attorney standards and

conduct have traditionally been subject to extensive regulation by the States,

making it particularly appropriate to apply only limited scrutiny to state

regulations concerning attorney advertising. See id. In analyzing such

restrictions, the courts apply “intermediate” scrutiny, using the framework set

forth in Central Hudson Gas & Electric Corp. v. Public 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 of

commercial speech. First, the court determines whether 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 of the test. The government

must assert a substantial interest to be achieved by the restriction. Any restriction
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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 regarding 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 deceptive or inaccurate speech by

requiring that all advertisements be filed, the state must also satisfy the remaining

two elements of the Central Hudson test. 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 restriction 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 its Task Force Committee

concerning public attitudes toward attorney advertising, discussing studies which

show that the public’s regard for the trustworthiness, honesty and professionalism

of lawyers has been adversely affected by attorney advertising. The Task Force

Committee studied various rules that have been proposed in other states to

regulate attorney advertising, and, with considerable participation by the State Bar

Commissioners, New Mexico attorneys, and the New Mexico Supreme Court, and

an opportunity for public comment, it developed its own rules which it claims are
2 Appellant argues that the state’s use of a newspaper clipping service would

provide a less intrusive method of supervising lawyer advertising. He has

submitted no evidence on either the costs or feasibility of using a clipping

service. He does not explain how a clipping service would provide a good

substitute for several requirements found in the current rule: that attorneys submit

a copy of the advertisement in the form in which it is 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 video media, and that they

(continued...)

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designed to foster rational, intelligent and voluntary decision-making on the part

of the public concerning legal services.

The Supreme Court has implicitly endorsed the ability of supervisory filing

and review systems such as the one now in use in New Mexico to alleviate harms

associated with attorney advertising. Moreover, the 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 discussing

direct-mail solicitation, noted as follows:

The State can regulate such abuses and minimize mistakes through

far less restrictive and more precise means, the most 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 omitted)

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 remaining elements of the Central

Hudson test are met here.2
2

(...continued)

detail the anticipated frequency or use of the advertisement and the time period

during which it is to be run. See Rule 16-707(D). 

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3. Payment of filing fee

Finally, appellant argues that the requirement that he pay a $50 fee to the

Disciplinary Board for each submission of advertising 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 of administering the Rules. A fee

of this sort, which is used to meet expenses incident to the administration of a

regulatory statute governing exercise of a constitutional right, does not constitute

an unconstitutional infringement of that right. See, 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 for the District of New

Mexico is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge