Juris Magazine- Summer 1982

SUMMER

1982

THE DUQUESNE LAW SCHOOL NEWSMAGAZINE

LAWYER ADVERTISING: WHERE DO STATES STAND NOW?

Editor's Note t the ti me we bega n our " law schoo l careers" , litt l did we realize the effect A our edu a tio n would have o n o ur lives . It ha taug ht us to think a certain way, speak in a certain way a nd act in a certain manner. Th us, in a sense, law school has been a very regi mented experience; omewhat of a program of mind control. Each one of us ha reac ted different ly to the stimulu . However, fo r ma ny of us, myse lf inclu ded, law school has been a "growing" experience, where we learned not only a bout this ominous creature ca lled " the law", but also about our Ive and who we are.

Collectively, our la s ha been r garded by so me member o f the law school as the worst group o f studen t ever to enter and exit this in titution. T erms such as "obnoxious," " lazy, " and "always unprepared" have been used to describe us. However, even though we, and every graduate of this law school have had at least one obnoxi ou s, lazy and unprepared professor in the course o f our law school education, no ne of us would say that Duquesne has the worst faculty of any law choo l. I think that most of my classmates would agree that on the whole, o ur faculty has been quite good and I think that on th e whole, we have been quit e good and will continue to be so . In fact, I believe that given the collective character of our class, someday we will be recognized as the class which produced more successful attorneys, more judges, and more professors than any class before us.

My years at Duquesne have also given me some insight as to what the law school has to offer, and more importantly, what the law school needs to offer.

During our three years at the law sc hool, we have been forced to contend with a substandard facility, an ineffect ive admini stration and a divided faculty.

Hopefully, this coming Fall, with the opening of the new law school and the appointment of a new administration, these problems will be resolved. However, the law school must not be content with merely having a local reputation. With proper planning by an enthusiastic administration, the law school can grow to national or at minimum, strong regional prominen ce. This ca n be accomplished in several ways. First, the law chool must seek to attract students throughout the country, not merely Pennsylvani a. I f this is done, eventually Duquesne will gain a reputation outside the Pittsburgh area when the nonresident graduates return to their home states. Second, the administration must work to establish a chair funded by an outside organization. This will serve to attract nationally recognized professors who can bring their own reputation to Duquesne. Third, the faculty must be encouraged to publish legal articles and commentaries and should be given time off from their teaching duties to do so. Finally, the faculty and administration must work together as a cohesive unit in a spirit of cooperation and with foresight so as to insure that the law school will continue to grow in tradition and excellence.

In conclusion, I would like to express my sincere thank s to thi s year's Juris Editorial Board, and contributing writers to Juris for their tremendou s efforts and cooperation throughout the year. Serving as Editor-in-Chief has been a very rewarding experience which has been further enriched by working with such talented and enthusiastic individuals.

-4 ;ÂŁd;;!t:.U<:;;

r O c.

Paul S. McGrath, Jr. Editor-in-Chief

VOL XVI No.4-Summer 1982

Editor-In-Chief Paul S. McGrath, Jr. Associate Editors Roseann LaRosa A. HaLarear M. Piper Wayne Spaeth Assistant Editors Nat Cohen Lisa Rich Faculty Advisor John J. Sciullo Photography Eric Young Staff Members: Sharon Bogarad, Cheryl Croyle, William Friedman, James Orie, Donna Rae, George Reitnour, Drake Nicholas

JURIS is a student publi ca ti o n 0 1' th e Duqu esne Uni versit y Sc hoo l o f La w.

Views a nd opinions expressed a re 11 0 t necessa ril y lh ose o f JURI S o r Duquesne Universi ty. All m a nu sc r i pl ~ a nd comm eills ma y be addressed to JURI S, Duq ues ne Uni versity School of Law, 600 Fo rbes A venue , Pill sbu rgh, Pennsyl va ni a 15282.

Tel ephone (4 J 2) 434-6305 Co pyright J982 Duqu esne Uni ve rsity

In this issue

2

3

THE ROLE OF THE CHILD ADVOCATE

10

LA WYER ADVERTISING: WHERE DO STATES STAND NOW?

6

MUNICIPAL ANTITRUST: LIABILITY AFTER BOULDER

15

LAW PROFESSORS TAKE SABBA TICALS

9

NEW LAW SCHOOL NEARS COMPLETION

16

MANSMANN APPOINTED TO U.S. DISTRICT COURT

The Role Of The Child Advocate by A. HaLarear M. Piper ndependent representation for I abused and neglected children is a new frontier in our legal system. Not since the 1960's has there been any court decisions from which an inference can be made that an abused or neglected child should have counsel distinct and separate from his caretaker, nor has there been any specific legislation mandating legal representation.

Historically, children, unlike any other identifiable class, have no standing to initiate any kind of services for themselves without the aid of a guardian. Under the common law, children are presumed and defined as incompetent with regard to their legal affairs.' As a result, children are wholly subordinate to the powers that dominate society and define their interests. 2 They are the adults who labor in the roles of parents, guardians, social workers, politicians and judges.

Strangely enough, only a minority of our society saw the need for legal representation for children brought to the attention of the court for a proceeding arising out of child abuse or neglect. The need, however, is clear and ever present in our society today as it was decades ago. In 1962, Dr. C. Henry Kempe introduced in the Journal of the American Medical Association the term "The Battered Child Syndrome. " It was used to describe signs that would indicate that a child's injuries were committed by its caretaker. J This diagnosis opened the door in examining the social context in which the future of our country could be measured.

It is necessary at this point to define child abuse and neglect. More often than not the layman will not fully appreciate the scope or all of the areas that it encompasses. As defined in the "Child Abuse Prevention and Treatment Act," child abuse and neglect is the "physical or mental in-

jury, sexual abuse, negligent treat路 ment or maltreatment of a child under the age of eighteen by a person who is responsible for the child's welfare under circumstances which indicate that the child's health or welfare is harmed or threatened thereby."4 The Pennsylvania Child Protective Services Act defines child abuse as "a child under eighteen that exhibits evidence of serious physical or mental injury that is not accidental."l Abuse may be physical, psychological/emotional, sexual or verbal.

Child neglect is an act of omission.

It is "the failure of a parent or one who is legally responsible for the child's welfare to provide for the child's basic needs and proper level of care with respect to food, clothing, shelter, hygiene, medical attention, education or supervision." Neglect may also be moral, and/or psychological/ emotional.

Pennsylvania has firmly established that a juvenile who is the subject of a custody proceeding is entitled to representation by counsel at the custody hearing.6 When a child's interest is distinct from any other party's, he or she should be represented by counsel.

The Pennsylvania Child Protective Services Law was enacted in November, 1975 to provide a procedure for reponing and investigating abused children. 7 The purpose of the law is to prevent abused children from suffering injury and impairment, as well as providing rehabilitative services for children and parents. a Any individuals who, in the course of their employment, occupation, or practice of their profession come into contact with abused children are required to make a report to Child Welfare. 9 When a child is suspected of being abused, the child may be taken into protective custody within 24 hours. '0 If protective custody is necessary for

a longer period of time, a detention hearing will be held to make a formal determination. If future custody is necessary, the Child Protective Services Agency must file a petition under the Juvenile Act with the court within 48 hours ." The court appoints a guardian ad litem that is an attorney at law at the initiation of any proceeding arising out of child abuse. 12 The Pennsylvania Juvenile Act was enacted in December, 1972 to preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children.' J The Act also provides for representation by legal counsel at all stages of any proceeding as does the Protective Services Law. Counsel must be provided unless his parents, guardian or custodian is present in court and affirmatively waive this requirement. Counsel may not be waived for a child when his interests are in conflict with the interests of the parent, guardian or custodian.'4 The Juvenile Act governs the judicial proceedings that abused children may be subjected to. The intake procedure begins with a shelter hearing at which time a child is temporarily placed within the custody or supervision of children and youth services until a petition hearing can be held. Petition hearings should be held within 10 days if the child is in detention or shelter care. At this hearing a child may be found dependent if he is without proper parental care or control, su bsistence, education as required by law, or other care or control necessary for his physical, mental, emotional health, or morals. II The disposition orders are subject to the conditions and limitations of the court and are subject to review by either the court's initiative or on petition by any party.

Representing a child in an abuse or neglect proceeding can be an awe-

3

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some task for the Child Advocate.

The common question among Child Advocates is - "what are we here for?" Although the question at first glance seems to denote uncertainty, it is a very appropriate one. Counsel for a child in this kind of proceeding occupies a position substantially different from that which a lawyer normally finds himself in other litigation. 16 He or she may serve as either a traditional advocate, a neutral officer of the court, or as a guardian ad litem."

Once that crisis is resolved, the next major problem for the Child Advocate is determining what interest, or, in other words, whose "best interests" will be presented to the court. A determination of the proper role in a given case is achieved only after considering the nature and stage of the proceeding, the needs of the child represented and the capacity of the child to express his own wishes to counsel. IS In practice, however, the roles and policy issues are multiple, complex and conflicting.

The Code of Professional Responsibility defines the duty of a lawyer, both to his client and to the legal system, to represent his client zealously within the bounds of the law. 19 If the competence of the client is in question with respect to his intelligence, experience, mental condition or age, the obligation of counsel will also vary according to the nature of the proceeding. 10 In practice this consideration allows the lawyer to use his discretion in advancing a position most favorable to his client. It is also very similar to the guardian ad litem ro'le advanced by other guidelines for Child Advocates.

The traditional adversarial role for counsel representing children in an abuse or neglect proceeding focuses on the protection of the child, observing proper procedure, arguing technical questions of law, testing of evidence, representing the child's wishes and a rigorous promotion of the child's legal rights." This is the most familiar approach for lawyers because it has been infused in our legal system as the vehicle of decision making. Law students have been educated into the adversarial tradition for centuries and the in fluence of the adversarial approach on the thinking and behavior of lawyers is pervasive."

This approach is favorable in an abuse or neglect proceeding when the

4

child is mature enough to logically articulate what he or she beJ,ieves to be in his best interest. Counsel for the child is not required to take an adversarial position, therefore, he or she is not called upon either to prosecute or defend, rather only to ensure that the court is presented all relevant facts necessary for adjudication and disposition. Counsel must also exert his efforts to secure an ultimate resolution of the case which, in his judgment, will best serve the interests of his client. 13 When a Child Advocate acts as a neutral officer of the court, he or she serves as an intermediary between the child and the court. Counsel interprets court procedures and dispositions to the child and is responsible for the accuracy and completeness of information put before the court for purposes of disposition. He or she also advances the child's wishes and opinions to the court. I. The Pennsylvania Child Protective Services Law requires the court to appoint a guardian ad litem for a child in an abuse or neglect proceeding. IS The guardian ad litem is charged with representing the child's best interest at every stage of the proceeding and shall make further investigation necessary to ascertain the facts, interview witnesses, examine and crossexamine witnesses, make recommendations to the court and participate further in the proceedings to the degree appropriate for adequately representing the child. 16 As a guardian ad litem, the Child Advocate is not charged with representing the child, but with representing the child's "best interest."" The limited competency of the child to identify and assert his own interest is the primary rationale of the guardian role.18 The standard for determining the best interest of the child is related to the "least detrimental available alternative standard." It is that specific placement and procedure for placement which maximizes the opportunity for maintaining a continuous relationship with at least one adult who is or will be his psychological parent. 19 The standards determining the "best interest" call for (I) placement decisions that safeguard the child's needs for continuity of relationships; (2) placement decisions that reflect that child's, not the adult's sense of time; (3) placement decisions that take into account

the laws incapacity to supervise 1Ilterpersonal relationships and limits of knowledge to make long-range predictions. 30 The Child Advocate who follows the role of guardian ad litem has the discretion to present to the court a disposition that overrides the expressed desires of the child. Needless to say, many ethical conflicts result when interpreting the child's best interest.

Once the act of abuse has been established by the court, the Child Advocate must make alternative dispositions available to the court. In order for this stage of the proceeding to be effective in ascertaining the "best interest" of the child, the Child Advocate must have investigated the case thoroughly. He or she must scrutinize and carefully evaluate all assessments and recommendations made by the social worker or other parties in the proceeding. Many of the judgments made by the Child Advocate are more social in nature than they are legal but, these decisions are essential to the well being of the child.

The Institute of Judicial Adminis路 tration - American Bar Association Joint Commission of Juvenile Justice Standards (LJA-ABA) requires the Child Advocate at the outset of representation to investigate social or legal dispositional alternatives. 31 The Standard and Training Committee of the National Association for Counsel for Children (NACC) also stress the importance of independent investigation by the guardian ad litem. This should include contacting all persons involved in the case such as the social services caseworker, foster parent, treating physician, other attorneys in the case, school counselor and the child. 3 1 There are certain aspects of the Child Advocate role that will not change from one proceeding to the next. Aside from making the requisite investigation and dispositional evaluation, the Child Advocate must establish a rapport with the child, not only to better understand the way a child expresses himself, but to give the child some understanding of what is going on . The Child Advocate must have excellent social and interpersonal skills. He or she must be able to ascertain that child's true feelings, wishes and concerns. This demands some comprehension of child psychology, social development and the nature of

interpersonal dynamics as well as the ability to employ this knowledge in a comfortable relationship with the child. 33 REFLECTIONS Child abuse and neglect is blind to age, race, or socio-economic status. It could strike the child across the way or the kid next door. Thousands of chi ,l dren throughout the country are brought into juvenile court each year because they have been abused or neglected by their parents or caretaker. Children are delicate and vulnerable during the most formative stages of their lives. We are whatever we are today because of the foundation we received in our youth. Therefore, it is crucial to the welfare of our human society that social workers, lawyers and judges continue to practice some measure of preventive law.

Our system of justice is aimed at bringing the perpetrator before the court to penalize and deter him from repeating an unacceptable act either by a monetary judgment again st him or imprisonment with the purpose of rehabilitation. However, when it is the victim that is brought before the court, is the removal of the victim from the abuser enough in and of itself to deter repetive abusive acts?

Child abuse and neglect is a vicious cycle. Abused and neglected children are born to abused and neglected parcnts. Is our system of justice adequate enough to handle such deep rooted family and social malfunction?

Thc focus of dispositions for the victim in an abuse or neglect proceeding is 10 place the child in an environment that will foster his physical, mental and social development, whether that placement is in the home with court appointed supervision, out side the home in approved facilities, or with foster parents. When this is effectively done the scar of indignation can be erased and an abused or neglected child can have a chance of becoming an upstanding citizen. It is not enough to pacify or sweep the problems along. I f the courts cease to take remedial steps with rehabilitation for the victims and the abusers. then the law has interfered unjustly.

As the creators, interpreters and enforcers of the law, we will bear the res ponsibility as creators of a social evil. We have the ability to change, ratify or amend, but we must clearly see the question before we can know the answer.

FOOTNOTES

Child Advocacy McHale, The Proper Role of The Lawyer as Legal Representative of The Child, 18 Alberta L. Rev . 216 (1980).

2 Bross, Munson, Alternative Models of Legal Representation For Children, 5 Okla. City U.L. Rev. 561 at 574 (1980) . ) Interdisciplinary Glossary on Child Abuse and Neglect, Child Advocacy Legal Aid Society (1980).

30

I

4

Id.

Pennsylvania Child Protective Services Law, PA Stat. Ann. Tit. II, §§ 2201, et. seq. (1975).

• Stapleton v. Dauphin County Child Care Services, 228 Pa. Super.ct. 371, 324 A.2d. 562 ( 1974).

7 Pa. Child Protective Services Law 8 Id. § 2.

• Id. § 4(b) .

10 Id. § 8(b).

II Id. § 8(c).

12 /d. § 23.

IJ Pennsylvania Juvenile Act, 42 P.S.C.A. § 6301 et. seq. (1976).

14 Id. § 20.

II Id. § 4.

I. Jacob L. Isaacs, The Role oj The 5

Lawyer In Child Abuse Cases, in The Battered Child and His Family.

17 McHale, at 219.

18 Id. at 220.

Model 19 Model Code of Professional Responsibility, EC 7-1.

2°ld.at7-11.

21 McHale, at 219.

22 McHale, at 220.

2J Isaacs, at 229.

24 McHale, at 219.

25 Pa. Child Protective Services Law § 23.

26 Id. 27 Redeker, The Right Of An Abused Child To Independent Counsel And The Role Of The Child Advocate In Child Abuse Cases, 23 ViiI. L Rev . 521, at 539 (1978).

2S Costello, Ethical Issues In Repre-

senting Juvenile Clients: A Review OJ The LJA-ABA Standards On Representing Private Parties, 10 29

N.Mex. L. Rev. 255, at 258 (1980).

J. Goldstein, A. Freud, and A. J .

Solnit, Beyond The Best Interest OJ The Child (New York: Free

31

J2

33

Press, 1973, p. 53).

J. Gold stein, A. Freud, and A. J. Solnit, Bejore The Best Interest OJ The Child (New York: Free Press, 1979, p. 6).

Costello, at 270 .

Guidelines for Guardians Ad Litem, The National Association oj Counsel For Children, (1977).

McHale, at 234.

•

ESQ. Wi,n s Softball Tourney In a style that could best be typified as "Eddie Shore" old time softball, ESQ. breezed through the Duquesne University softball league on their way to the 1982 school championship.

The ESQ. squad (a mode rn ized Ghetto Gridd e r ) compo ed a lmost entirely of third-ycar d ay p layers compiled an undefeated 12-0 ma rk .

Along the way, ESQ. garnered such laurels as the Second Annual La w School Tournament Champion ship, the Duqu s ne University Indepe nd e nt Softball Championship and the U niversity Championship.

The attack was led by an excell e n t combination of pitching, hitti ng a nd defense.

AI Goulding who had previously been a journeyman infielder was moved to the mound where the ironman compiled a staggering 1.40 earned run average. Defensively, ESQ. set new rec rds in fielding average led by a slick keystone combination of John Kwasneski at shortstop and Gary Falatovich at second.

But it was offen sively where SQ. earned its feared reputation . Drake Nicholas and Mark Giampetro ignited a pesky attack that allowed powermen, the likes of Dennis Roman, Pete Paladino (three decade man). LOll Bader and Ray Middleman (fres hman sensation) to drive in big runs .

Of the third-year players, several have expressed their desire to enter the free-agent draft in late May. George Nagle, who has not yet decided on his future plans expressed his desire to sit back and reflect. As Nagle said, "McMann, this is the happiest day or my life."

•

5

Municipal Antitrust: Liability After Boulder

BY WILLIAM FRIEDMAN

ust when we had become comfortJSupreme able with the thought that the Court might pro vide us with a relatively quiet sess ion, it handed down the decision in t he case of Community Communications Company v.

City of Boulder, Colorado 455 U.S . _-_ _ , 102 S.C!. 835 (1982). The case invol ves the antitrust liability of municipal governments as I hey exercise their regulatory powers. The decision has sent local officials and public administrators sc urrying to protect what local regulatory power they may have left and will provide material for many a commentator.

The Sherman Act provides that "every contract, combination in the form of tru st or olherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal." 15 U.S.C.A. ยง I (1976) . The basis of antitrust legi slation is that unhampered competition should determine prices and supply and that market conditions "must be robust, and free of anticompetitive restraints .'" For some time the antitrust provisions carved out exceptions for various levels of government in their regulatory activities . Those exceptions have become more and more circumscribed. So mu ch so that Boulder, in its attempts to foster and encourage competition, act ually ran afoul of these very same antitrust laws.

"States [as compared with other levels of government] have repeatedly been held to have the authority to regulate commerce so long as such regulation does not connict with a federal statute, the Commerce Clause, the Due Process Clause, or other express constitutional restraints. "2 While the states have enjoyed this immunity, the position of municipal governments has not been as clearly defined. In order to escape antitrust liability, municipal action must be accompanied by the affirmative action and supervision of the state.

As for the City of Boulder, it is a home rule municipality pursuant to

6

th e Colorado State Constitution and, as Professor Antieau points out, the Colorado constitution authorizes municipalities to provide for all powers necessary for the administration of local government and that "municipal legislation supersedes state statues when the subj ect is local or municipal."J The question, 01" course, becomes what is a local or non-local subject. Th e subject in Boulder was the regulation of the cable television franchise which traditionally ha s been regulated by local governments with the exception of certain technical standards which are preempted by the Federal Communications Commission (FCC) . The FCC, Congress and the Supreme Court have long recogni zed, and encouraged, this arrangement.

The Boulder Background

n 1964 the City of Boulder granted Ichise a revocable, non -ex clusive franto Colorado Televents which in 1966 was assigned to Community Communications, the petitioner in this case. By 1979 the company had wired only 20% of Boulder. The city declared a 3 month moratorium on cable construction and requested other cable companies to submit proposals. The announced purpose of the moratorium was to increase competition with the hope of upgrading existing service and extending servicc to the remaining 80070 of the city.

Community Communications for many years claimed that "technological limitations" prevented them from serving the entire city but in 1979 declared that it had plans for expansion . The company further informed the city that if the moratorium went into effect Boulder would be violative of antitrust laws by restraining its trade.

In reality, the company probably found the otter portion of the city economically unattractive to wire and the city never required it to be served.

Indeed, the facts presented in the Court's opinion indicate that during the fifteen intervening years the city officials did nothing to obtain that

se rvice. Unfortunately, the local officials did not realize that "technological limilations" has always been the cable indu stry's equivalent of " the check is in the mail. " It is true on occasion but t hose occasions are rare.

The Supreme Court has remanded the case to the lower court to determine if any laws have been violated.

Justice Brennan, writing for a 5-3 majority (Justice White took no part in the consideration or decisio n), said that the city's "moratorium cannot be exempt from antitrust scrutiny unless it constitutes the action of the State of Colorado itself in its sovereign capacity, or unless it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy." Community Communications Co. v. City of Boulder, Colorado 455 U.S. _ _ , 102 S. Ct. 835,841 (1982).

The Parker Doctrine Applied to Boulder

n Parker, the state of California I enacted an agricultural program designed to regulate the handling, disposition and prices of privately produced rai si ns. The Supreme Court determined that the action was not implemented to restrain trade but rather was direct state government action in furtherance of the welfare of the citizens and hence immulle from antitru st provisions. Parker v.

Brown 317 U.S. 341,350 (1943). The Parker Doctrine, as it is known, provides that state and local governments are immune from antitrust liability only to the extent that they act in accordance with a clearly articulated and affirmatively expressed state policy .

In Lafayette, the city which owned the utility company established regulations which prevented outside utility companies from offering service within the city. The Court determined that a municipally-owned electric company was immune from antitru st action brought by another utility company because the action represe nted clearly art iculated state policy on the matter.

Neither Parker nor Lafayette raised the question of actual municipal regulation of private enterprise and for this reason the Court's analysis of Parker and its application of the doc-

trine is all the more interesting as well as exasperating.

In Parker the state of California passed legislation which allowed the state to hold raisins off the market in order to raise prices and to prevent "economic waste."路 California at the time produced about 95070 of the nation's raisins and about 50070 of the world's supply. Any tinkering with market conditions or output would obviously have an impact on prices.

A legislatively-required committee was composed of interested raisin producers and state officials who would determine prices, quantities and other policies.' Although the district court found the scheme to be in violation of antitrust laws, the Supreme Court reversed. The Court explained that such action was not preempted by the Sherman Act, that the state's agricultural program was an important component of the nation's own agricultural program and not in conflict with the Commerce C lause. The Parker Doctrine has been controversial ever since and one suspects that the Boulder decision will be equally controversial.

"California's plan was more than a mere authorization of private illegal activity. Rather, the plan effectuated California's clearly expressed purpose to substitute its own regulation for the action of the market and the antitrust laws."6 Parker involved state action in concert with carefully selected representatives of private industry in order to regulate other private enterprises and yet the Court found no antitrust violation.

In Boulder, on the Olher hand, the Court found potential violations in even more pristine circumstances.

Boulder had granted a franchise which was revocable; a franchise which was non-exclusive; both characteristics are standard cable franchise provisions. In the 15th year of the 20 year agreement the city issued a 3 month moratorium to solicit other proposals and hence increase competition. The franchise itself was not granted in perpetuity and the city was not interested in permanently depriving the holder of the current franchise. The city merely wanted to exercise ,i ts rights to protect the citizens.

The plan in Parker was clearly designed to manipulate the market and hinder competition while the city of Boulder sought to increase competition. According to the Court Parker

did not violate antitrust but Boulder may have!

"The Sherman Act rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of economic resources, the lowest prices, the highest quality and the greatest material progress . . . " 7 One is hard put.to see how this description applies to Parker and not to Boulder.

The dissent in Boulder (Justices Rehnquist, Burger and O'Connor) argued that since Boulder is a home rule community it, like the state, is immune from antitrust action. The dissent is concerned that the Court's decision will "impede, if not paralyze, local government's efforts to enact ordinances and regulations aimed at protecting public health, safety and welfare." fd. at 845. A municipality conceivably could violate the Sherman Act by enacting certain zoning ordinances, by requiring business and occupational licenses, and by granting exclusive franchises to utility companies "even if the city determined that it would be in the best interest of its inhabitants to displace compctition with regulation." fd. at 848.

Exemption v. Preemption

he dissent distinguishes between the concepts of exemption and preemption; the former being the basis of the majority's argument, the latter being the dissent's. Exemption involves the interaction of the enact,ments of a single sovereign; "whether one enactment was intended by Congress to relieve the party from the necessity of complying with a prior enactment." fd. at 846. Preemption, on the other hand, involves the interaction and enactments of two sovereigns, e.g., federal and state. If the federal law fully occupies a particular field, the other law falls. If the law is preempted, for example by the Sherman Act, it is simply unenforceable and no other action is required. fd. A state statute which is preempted as a result of being out of sync with a federal law "is void and unenforceable by the power of the Supremacy Clause and no finding of antitrust liability is necessary."8 The Commerce Clause is also available to enjoin anticompetitive a ctivity without having to resort to antitrust action. 9 According to the dissent, when a state enacts legislation not protected

T

by the Parker Doctrine (which in fact was based on the preemption concept) there is no "violation" of the Sherman Act, the act is unenforceable because it is preempted. However, using the majority's exemption approach (even combined with Parker), a municipality may be "liable under the Sherman Act for enacting anticompetitive legislation" absent an active role by the state. fd. at 848.

It is notable that the majority applies the preemption analysis to Boulder and yet arrives with an exemption result. The dissent said that this process effectively treats local municipalities and states differently by applying preemption to states and exemptions to municipalities. The dissent goes on to observe that the majority "concludes t hat since municipalities are not states and hence are not sovereigns, 6U f notions of federalism are not implicated." fd. at 850. The dissent pointed out that whenever any federal statute challenges any municipal ordinance, federalism is automatically implicated. fd.

The majority said that a municipal implementation of a state law, even if anticompetitive, is acceptable provided there is affirmative supervision by the state. The dissent thinks the same standard should apply to municipally enacted ordinances, that is, "the ordinance [should survive] if it is enacted pursuant to an affirmative policy on the part of the city to restrain competition and if the city actively supervises and implements this policy." fd. I n other words, so long as the governmental body (state or local) is actively involved, the dissent would accord it antitrust immunity.

The dissent points out that this decision "radically alters the relationship between the States and their political subdivisions [and] that it will destroy the 'home rule' movement in this country.*** In order to defend itself from Sherman Act attacks, the home rule municipality will have to cede its authority back to the State." fd. at 851.

The court decided that "clear articulation and affirmative expression" was not satisfied here because the State was merely neutral in its involvement in the activity. fd. at 843.

The Court relied principally on two cases Parker v. Brown, 317 U.S. 341 (C()lIlilllll!d UII

pugC' 13)

7

An Interview With Professor Kenn,e th L. Hirsch For the past 10 years Professor Kenneth L. Hirsch has been teaching at Duquesne University School of Law. He received his Bachelor of Arts degree in Education and History from the University of Illinois in 1965, and his juris Doctor in 1968 from the University of Illinois School of Law. Professor Hirsch spent 1968-70 in the Armed Forces as a hospital administrator before receiving his LL.M. from Harvard in 1971.

At Boston University School of Law, Professor Hirsch taught legal writing in 1971 and then from 1971-72 he was a visiting assistant professor of law at Mercer University, Georgia. Since 1972, he has been a professor here at Duquesne University School of Law teaching in the areas of property law and constitutional law. In 1982 Professor Hirsch will be taking a leave of absence and has granted juris this interview.

Q. You have spent the past ten years teaching law, can you explain what motivated you to pursue a career as a law professor?

A. "There is nothing better to do, by way of work as far as I'm concerned than 10 spend one's days talking about interesting subjects to bright people. It is a pleasure, whereas the practice of law did not appeal to me quite as much . The one serious drawback to the profession is all the exams you have to read now and again."

Q. Next year you will be taking a leave of absence from Duquesne University School of Law, what do you plan on doing during that time?

A. "Basically I am going to be teaching in the property area at John Marshall in Chicago. This will afford me an opportunity to meet more people in the profess ion and to be closer to my family and my wife's family, all of whom live in the Chicago area."

Q. SO, you will be teaching at John Marshall thi s upcoming year, is your leave of absence scheduled only for a one-year period?

A. "They have made me no promise beyond the year and I have made

8

them no promise beyond the year."

Q. Can you describe and elaborate on the strong and the weak points of the law school experience at Duquesne?

A. "One of the strong points of the law school experience, is the opportunity to learn a broad scope of matters concerning substantive law which is important to the practitioner or to the teacher or law. The curriculum weighted as it is with required courses, strives to assure that no one graduates from this school without a comprehensive knowledge or those fields of law which the faculty over the years has regarded as fundamentaily important. The virtues of legal education lie beyond the knowledge of particular rules to something about the dynamics of the legal process: how the rules are used; how they are applied in particular cases; how they change over time; and what it is that moves courts or legislatures to make the changes; how institutional roles of court and legislature interact in the process of making and revision of law. All of Lhese are of first importance to anyone who would be a

lawyer.

We are weaker in the teaching of practical advocacy skills and in carrying forward certain remedial programs that probably deserve attention today. Rather too many people, in my experience, come to law school without solid training and sound accomplishment in writing the English language. There is nothing that the lawyer has to work with if it isn't words and if it isn't the language.

Consequentially, writing deficiencies really deserve urgent attention during the law school experience, actually before people arrive. However, the colleges do not universally attend to such needs. We haven't had the institutional dedication or the resources to attack this problem .

There are, of course, other things that would be nice, that would add to the quality of the legal education and to the confidence of our graduates.

For example, building in a few more 'practically oriented' experiences in the curriculum. I have tried to play

(conlinued on page 14)

New Law School Nears Completion by Lisa Rich nyone who has been watching the construction of Duquesne University's A new law chool building has noticed its progression to be significant and rapid throughout the fall and wint er months. Now, well into spring, the bu il ding is near completion. What initially existed as an empty shell of a facility has been replaced by a building of sound structure, aesthet ic sensibility, and co mplete faci lit a tion, which is to oon become the new home of Duquesne Univer ity School of Law. According to the architect for the project , Ja mes Gerard, "Things have been going exceptionally well." There have been a few minor delays in the delivery of structural steel and in the heating and air conditioning placement, however, no major setbacks have occurred to delay any of the signi ficant building. Also, there have not been any exceptional increases in materials necessary for the project, and as such the initial budget limitations have been adhered to. In fact percentage-w i e , Gerard says, the project is below its original estimation. Even o rne of the "extras" added later in the development of the project were in keeping with the budget of the University .

The ex tensive and unseasonable winter conditions that continued long into spring did not cause any delays in the construction, for much of the work still to be done is confined to the interior of the facility. The project is going so well, in fact, that the move from the present law library into the new building is planned to begin in ea rly June, rather than in August as initially scheduled. All that presently remains to be done is what Gerard refers to as "site-work" and various finishing to uches including both interior and exte rio r landscaping. In add it io n to the al read y completed restoration of the Our Lady of Vic to ry statue in the back of the schoo l, Mr. Gera rd plans to plant shrubbery and oak trees in the front o f the schoo l. There will also be some indoor foli age including planters and hanging plan t .

Througho ut the proje t Jame Gerard applauds the fine coo pera tio n from Du q uesne Univer ity' admin is tration, fac ulty , and st udents, providing valua ble input fo r the development of the project. He also p raises the excellent wor k do ne by the con tractors invo lved, o n tending that the en tire project has been a very posi ti ve a nd satisfying one for everyone connected with it. As a final note o n the complet ion of the new la w chool building, Mr. Gera rd hope that all o f the law st ude nts and fa ulty approve of the new facility a nd enj oy it, for th a t has been the u ltimate goa l from the onset of the entire project.

9

LAWYER ADVERTISING: WHERE DO STATES STAND NOW? BY PAUL S. McGRATH, JR. the past five years, since the IthatnUnited States Supreme Court held the prohibition against advertising by lawyers was unconstitutional, the use of public media by lawyers for marketing and advertising purposes has grown steadily, albeit not dramatically. A recent survey conducted by the American Bar Association ' revealed that roughly 10070 of all ABA members use some means of advertising. Not surprisingly, the poll also showed that the vast majority of those attorneys using advertising were relatively young, solo practitioners earning less than $25,000 per year. As a result of the removal of the ban on lawyer-advertising, several marketing and advertising agencies have directed substantial attention to their newly found source of potential clients. Additionally, a plethora of literature has been published on advertising and marketing a law practice . Generally, solo practitioners and small law firms have utilized the print media as a forum for advertising, while larger firms and franchised legal clinics such as Hyatt Legal Services and Jacoby and Meyers have resorted to radio and television as their medium for advertising.

The purpose of this article is to analyze the judicial and legislative development of lawyer-advertising from the 1977 United States Supreme Court decision in Bates v. State Bar of Arizona, through the period following Bates in which every state revised their code of ethics in response thereto, and up to the recent Supreme Court decision in In re R.M.i., which dealt with the constitutionality of a typical state code provision on lawyer advertising.

Bates v. State Bar of Arizona'

n February 26, 1976, two lawyers to practice law in Ari-

O licensed 10

AND ROSEANN LA ROSA zona placed an advertisement in a local newspaper for their "legal clinic" offering "legal services at very reasonable fees" and listing their fees for certain services, including uncontested divorces, uncontested adoptions, personal bankruptcies and changes of name.

At the time, the Arizona Code of Professional Responsibility like every other state code, prohibited attorneys from advertising ill newspapers or other media. Consequently, the President of the Airzona State Bar filed a complaint against the attorneys, resulting in the recommendation by the State Board of Governors of a oneweek suspension for each attorney .

The attorneys appealed to the Arizona Supreme Court who upheld the decision but reduced the punishment to public censure . On appeal, the United States Supreme Court, in a split decision held inter alia, that absolute state prohibition of advertising by attorneys violated the freedom of speech clause of the First Amendment. The Court focused on the specific issue of whether lawyers may constitutionally advertise the prices at which certain routine services will be performed since, in the previous term, the Court, in Virginia Phar-

macy Board v. Virginia Consumer Council, J enunciated the commercial speech doctrine, stating that commercial advertising by a pharmacist or any other professional, which provides information to potential customers which services individual and societal interests in assuring informed and reliable decisionmaking, is entitled to First Amendment protection.

In reaching its decision, the Court in Bates, analyzed the various com-

peting interests at stake with respect to advertising by attorneys.

The first justification relied upon by the appellee for restricting price advertising is the arguably adverse effect on professionalism within the ranks of attorneys. Regarding this point, the Court stated that pure advertising would neither bring about commercialization nor would it diminish the attorneys reputation in the community, pointing to the fact that members of other professions advertise yet are not regarded as undignified. J The Court also pointed out that the ban on advertising originated as a rule of etiquette rather than a rule of ethics, stating that early lawyers in Great Britain viewed the law as a form of public service, rather than a means of earning a living, looking down upon "trade" as unseemly.' The majority, however, and, "the belief that lawyers are somehow above being a trade has become an anachronism ... [and thus] ... the historical foundation for the advertising restraint has crumbled".6 The second consideration addressed by the majority was the argument that attorney-advertising is inherently misleading (I) due to the individualized nature of the services; (2) because the potential client is unable to determine what services he needs, and (3) because advertising fails to show the relevant factor of skill. In response, the majority stated that the only services which lend themselves to advertising are routine ones and that no lawyer would advertise a fixed rate for complex or unique services. 7 The majority also said that although the client may not know his exact legal problem, he should be able to identify the service he desires at the level of generality to which advertising lends itself. Further, the Court emphasized that the public is sophisti-

cated enough to realize the limitations of advertising and is better off having correct but incomplete information rather than being kept in ignorance altogether. S The next argument the majority addressed was the alleged adverse effect on the administration of justice. In refuting this contention, the Court stated that "Although advertising might increase the use of judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than address it by legal action."路 The fourth consideration the majority confronted was the potential undesirable economic effect of advertising; specifically, increased overhead costs as well as the creation of an entry barrier for young attorneys.

The Court, however, rejected both points stating that (I) price competition will likely reduce the cost of legal services to the consumer, and, (2) advertising will aid the new competitor-attorney in penetrating the market. 10 The Court next dealt with the appellee's argument that advertising would adversely affect the quaJi ty of service by attorneys. The Court pointed out however, that restraints on advertising are an ineffective way of deterring poor service, noting that an attorney who is inclined to cut quality will do so regardless of any restraints on advertising. II The final consideration the majority addressed was the claim that anything less than a wholesale restriction on advertising would cause considerable difficulty in enforcement. The majority recognized that the overseeing of advertising would be burdensome but stated that most lawyers will abide by their solemn oaths to uphold the integrity and honor of their profession and the legal system and that it will be in the best interest of the profession itself to weed out those who abuse advertising. 12 Thus, the majority in Bates held that advertising by attorneys may not be subjected to blanket suppression and that the advertisement at issue was a form of commercial speech protected by the First Amendment.

However, the majority did not hold that advertising by attorneys may not be regulated in any way, stating that "as with other varieties of speech, it follows as well that there may be reasonable restrictions on the time,

place and manner of advertising" 13 and that false, misleading or deceptive advertising is always prohibited.

State Code Revisions After Bates

Shortly after the Bates decision, many states amended their position on advertising by lawyers, either by statutory enactment or by judicial decision. To this date, forty-five states including Pennsylvania, have revised their regulations on lawyeradvertising." However, a vast majority of the older, more established and influential members of the various state bar associations did, and still do, oppose advertising of any kind. They claim that advertising will commercialize the profession, thereby causing the practice of law to become less digni fied. However, in reality, it seems their true concern lies in the fact that many younger lawyers who would use advertising would reach a larger share of potential clients, and that in order to attract clients would offer services at lower cost. Thus, many states adopted provisions which, while permitting some form of advertising, were so restrictive as to prohibit the inclusion of information essential to consumers in making a knowledgeable, and informed decision. For example, several states permit advertising of fixed fees for only certain specifically enumerated routine services. ' l Iowa even prohibits advertisement of uncontested adoptions, a service the Bates Court called routine. Indeed, many states differ as to which services they consider to be routine.

The majority of state codes permit advertisement of particular services only if the description of the service conforms to the specific designation enunciated in the Code. '6 For example, several state codes permit attorneys to advertise that they practice "tort law", but would prohibit the designation "personal injury" as an offered service. Also, other designations prescribed by state codes may not be readily understood by the public, such as "Appellate Practice" or "Product Liability"."

Various jurisdictions have placed other limitations on the content of advertisements. Some states prohibit advertisement of hourly fees or the offering of contingent fee ar-

rangements. At least one state prohibits the inclusion of biographical information about the advertising attorney. Several states have also imposed restrictions on the form of media which lawyers may use to advertise. Approximately one out of five states limit advertising to the print media alone. IS However, the remaining jurisdictions permit use of print, radio and television for lawyeradvertising, with the exception of Wyoming and Indiana, which restrict advertising to radio and print media.

In Pennsylvania, the disciplinary rules have been revised to permit advertising using any form of media.

Further, a number of states, in an attempt to maintain "dignity" in advertisements, prohibit the use of artwork, graphic displays, logos, pictures, etc. in print advertisements, and music, slogans or jingles in broadcast advertising."

State Codes are also split on the issue of direct mail advertising by lawyers. Currently, over thirty jurisdictions prohibit lawyers from sending direct communications to the public through the mail. '9 Several states, however, have made the distinction between personal solicitation to specific individuals, prohibiting such advertising, and commercial communications to the general public which is permitted in these states. 20 Thus, it is clear that many states disapproved of the precedent set by the Bates decision and have attempted through various means to limit the use of, or otherwise restrict advertising by lawyers, often under the guise of maintaining the "dignity" of the profession .

The Supreme Court Responds: In Re R.M.J.22

n January 25, 1982, the United States Supreme Court, in a unanimous decision reaffirmed its position on advertising taken in Bates, and held unconstitutional a state statute which imposed various restrictions on advertising by attorneys.

Rule 4 of the Missouri Supreme Court regulating advertising by lawyers was enacted in response to the Bates decision and set forth ten categories of information which may be published by a lawyer in a newspaper, periodical or the yellow pages

O

11

by a lawyer practIcIng In Miss ouri.

The ten categories of information included inter alia, name, address, telephone number, office hours , areas of practice and the fixed fee to be charged for speci fi ed "routine" legal services. Although the Rule did not explicitly state that the three forms of printed advertisement and ten categories of information were the only means of advertising and only information permitted, this was the construction given by the Missouri Courts. In addition to the aforementioned guidelines, the Missouri Disciplinary Advisory Committee issued an addendum to the Rule which stated that if a lawyer chose to list areas of practice in the advertisement, it must be done in one of two ways. The lawyer may list one of three general descriptive terms, "General Criminal Practice", "General Civil Practice" or "General Civil and Criminal Practice". Alternatively, the lawyer may use one or more of twenty-three areas of practice including "Bankruptcy," "Family Law," "Labor Law," "Property Law" and "Tort Law" .

Furthermore, DR 2-102 of Rule 4 permits a lawyer to mail a dignified "brief personal announcement card" which may be sent only to "lawyers, clients, former clients, personal friends and relatives."

The Appellant began a solo practice in Missouri in 1977, and as a means of announcing his practice, he mailed professional announcement cards to a selected list of individuals and placed several advertisements in local newspapers and in the yellow pages. The advertisements contained various information not specifically permitted by Rule 4 including information as Lo where the appellant was licensed and admitted to practice as well as a list 0 f areas 0 f practice that deviated from the language prescribed by the Missouri Advisory Committee.

On November 19, 1979, the Advisory Committee filed on information with the Missouri Supreme Court charging the appellant with pu blishing advertisements that (I) listed areas of law not approved by the advisory Committee and (2) li sted the courts in which appellant was admitted to practice . The appellant was also charged with sending announcement card s "to persons other than lawyers, clients, former clients,

12

friends and relatives" in violation of DR 2-102 (A)(2).

The appellant argued that each of these restrictions upon advertising was unconstitutional under the First and Fourteenth Amendments. However, the. Missouri Supreme Court upheld the constitutionality of the Rule and issued a pr,i vate reprimand.

On appeal, the United States Supreme Court reversed and in a unanimous decision held that the restrictions on advertising imposed by Rule 4 violated the appellant's First Amendment rights. The Court stated that "The Commercial Speech Doctrine, in the context of advertising for professional services, may be summarized as follows: Truthful adverti sing related to lawful activities is entitled to the protections of the First Amendment."23 However, the Court pointed out that the Bates decision was a narrow one and did not foreclose restrictions on potentially or demonstrably misleading advertising."" Thus, the Court made clear, states may impose restrictions when the content of the advertisement or the method of advertising is inherently misleading or deceptive "or when experience has proven that in fact such advertising is subject to abuse.""

The Court also stated that the states still have some authority to regulate advertising even if the advertisement is not inherently misleading.

However, in order to do so, the State must show a substantiai state interest "and the interference with free speech must be in proportion to the interest served. "'6 The Court also emphasized that if the State does impose a restriction in such a case, the restriction must be narrowly drawn, and the state can only regulate to the extent that the state ' s interest is furthered .

In applying the aforementioned standards to the facts of the case, the Court held that none of the restrictions imposed by Rule 4 of the Missouri Code could be sustained .

Speci fically, the Court held that neither the listings of the areas of practice by the attorney nor the identification of jurisdictions in which he was licensed to practice were shown to be misleading and no substantial interest was shown to be promoted by the restriction. With respect to the mailing of announcement cards, the Court pointed out that while this form of advertising may be

more di fficult to supervise, there was "no indication [in the record] that the inability to supervise is the reason the State restricts the potential audience of announcement cards. Nor is it clear that an absolute prohibition is the only solution ."27 Conclusion

unlikely that In re R.M.}. will Ito tbeisconfront the last Supreme Court decision the issue of lawyeradverti sing as many questions remain unresolved. It may be said, however; that the rise 0 f young practitioners combined with less restrictive guidelines and greater acceptance 0 f advertising by the Bar will undoubtedly lead to increased advertising by attorneys in all forms of media. If the past history of the free market system is any indication, increased advertising by attorneys will likely stimulate competition among lawyers which will serve both to reduce the costs to consumers of legal services and increase the quality of those services . It must be the responsibility of the national, state and local bar associations as well as each member of our profession to insure that lawyer advertising is used in a respectable and dignified manner for the purpose of conveying useful information, thereby educating the public as to the nature and availability of legal services. It is clear from In re R .M.J. that arbitrary restrictions imposed by state ethics codes fashioned by those who are opposed to lawyer-advertising as a concept will no longer be upheld.

We must police our ranks not with the attitude that adverti sing is per se bad for the profession but with the recognition that truthful, informative and professional advertising is constitutionally permissible and absent a substantial state interest must be protected.

FOOTNOTES ABA Jour, Dec . 1981.

2 433 U.S. 350, 53 L. Ed. 2d 810, 97 S. Ct. 2691 (1977).

J 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976). â&#x20AC;˘ 433 U.S. 250, 369. j Id. at 371.

6 /d. /d. at 372.

I

(conlinued on page JJ)

(continued jium pafi e 7)

(1943) and Lafayette v. Louisiana Power and Light Co., 435 U .S. 389 (1978) to support this argument.

The Impact of Boulder ne should be prepared to admit

that perhaps the reasoning emO ployed by the majority is far too subtle and esoteric for most to comprehend. However, if that is not the case, the dissent's alarm has a great deal of merit. Apart from the subtleties, the practical implication s are quite disconcerting. For example, since state legislatures do not always legislate on "state" or "general" matters, when a state fails to legislate, "a vacuum [would) exist if a home rule city des ires to impose controls on these matters within its own borders ." 'o Following the majority's reasoning, if a sta te did not act, a vacuum would be created with the municipality having been deprived of its power to regulate .

By some standards the Court is encouraging litigation . For example, "if a city authorizes one concessionaire at a municipal arena, the courthouse door is wide open to every other concessionaire in the city." II However, Richard E. Wiley, former chairman of the FCC, now in private law practice, in an attempt to temper the react ion to the decision, says that the decision "does not mean that the city actually violated those laws, even though the cable moratorium apparently restrained competi tion." 12 Well, of course, no one said the city violated the law, but the stage is certainly set to accept that determination by the lower court. Mr . Wiley's assertion that Boulder "restrained competition" is overstated . The city issued a 90 day moratorium on cable construction . Thi s is a very short time for a company which had a 20 year agreement and which even by the 15th year of the contract had only wired 20070 of the city. Further, the moratorium did not preclude the company from submitting its own proposal. Even if the moratorium "restrained" compeulJon for 90 days, the intent was to further competltlon not to hinder it.

In light of the Boulder decision, municipalities, states or even Congress may hasten to enact legislation to undo what the Court has done.

The state of Virginia has already "passed a bill allowing municipalities

to grant exclusive cable television franchises while exempting them from antitrust law suits. "13 The problem which would develop from legislation which is not well thought out should be obvious.

On the other hand, perhaps such quick responses are unnecessary.

Using the Boulder decision as its ·co rnerstone, Omega Satellite Products unsuccessfully challenged a municipal ordinance in Indianapolis. Omega asked the city to reopen the cable franchise process after it had awarded a franchise in 1981. U.S. District Court Judge, Cale J. Holder, has wisely decided that "when a cable operator uses a public way to lay his coaxial cable and deliver his message, disruption to public way occurs." 14 Municipal regulation is one way to minimize those disruptions. The sa me argument should apply to most other regulatory activities of local government.

The Boulder decision run s unmercifully against the grain of home rule and local autonomy. But if we are fortunate, a case will make its way Lo the Supreme Court providing the Court with the opportunity to use the same ingenuity and resourcefulness which created the Boulder dilemma, to untangle it.

I

2 J

4

FOOTNOTES Philip Areeda & Donald F. Turn er , "Antitrust Law: An Analysis of Antitrust Principles & Their Application" Little Brown & Co. (1978) § 213a p.73.

Id. § 212 a, p. 69.

Chester James Antieau, "Municipal Corporation Law" Matthew Bender (1981) § 3.17. pp. 3-48.

Areeda & Turner, Id. § 212 a, p.

67.

, Id. Id. § 212 c, p . 71.

6 7

8

9 10 II

12

Eugene McQuillan "The Law of Municipal Corporations" (3rd Ed.) Callaghan & Company (1981) § 49.94, p. 44.

Areeda & Turner, Id. § 217 a2, p.

103.

Id. § 217 a2, p. 105.

Antieau,ld. § 3.08, p. 3-19.

Myron L. Dale, "Boulder's FarReaching Impact: An Impediment to Home Rule?" National Law Journal, March 29, 1982, p . 34.

Richard E. Wiley, "Boulder' s Unanswered Questions: The Future of Cable Franchising" National Law

1.1

14

Journal, March 29, 1982, p. 33.

Public Administration Times, April I, 1982, p . I. Bryan Holzberg, "Cable Ruling Cites Boulder Decision", National Law Journal, April 12, 1982, p . 38.

LAWYER ADVERTISING: (continued from page 12) 8

9 10 II

12 13 14

I S

16

J7 18 19

20

2J

22

2J

24

25 26 27

Id. Id. /d. /d. /d.

Id.

at 375. at 376. at 377-78. at 378. at 379. at 384.

Brosnahan and Andrews, Regulation of Lawyer Advertising: In the Public Interest? 46 Br. L. Rev. 423,426.

Id. at 427.

Id. at 428.

Id. Id. Id. Id. Id.

at at at at

429.

432.

431.

434. _ _ _ U.S. _ _ _ ,71 L . Ed . 2d 64, 102 S. Ct. _ _ (1982) . _ _ _ U.S. _ _ _ , 71 L. Ed. 2d 64,75 (1982).

Id. at 73 .

Id. at 74.

Id. Id. at 76.

•

DUQUESNE TAX MOOT COURT TEAM W 'I NS NATI,ONAL COMPETITION Duquesne law students took top honors in the National Tax Moot Court co mpetition at the University of Buffalo Law School, Buffalo, New York. Mary Broschak, 20, Mindy Mulvihill, 3E, and Jim O'Connor, 20, were chosen to represent Duquesne by allaining the highest three sco res after two round ~ of intraschool competition. The three prepared and argued both sides of a brief based on an income tax problem devised by Professo rs Joyce and Del Cotto from the University of Buffalo Law School. In the nationals at Buffalo, thirty-five teams representing law schools from across the country competed for awards. Buffalo area practitioners and University of Buffalo professors judged the event, selecting the Duquesne University students as the Best Team with the Best Written Brief.

•

13

AN INTERVIEW WITH PROFESSOR KENNETH L. HIRSCH (cUlllil1u!'u FUII/ pu?!' 8)

a role in that this year. In my Real Estate Planning course the final grade turns on two negotiation and drafting exercises rather than an examination. " Q. You have been teaching law at Duquesne since 1972, during that time have you sensed a di fference in the type of law student?"

A_ "I think students today and for the last three or four years are visibly more pinched for money or more devoted to practice in town than they were when I first started. There is less student frivolity and jollyness.

Students attend classes and do a little bit of work, then run out to other commitments. There are pros and cons, needless to say . A student will do what he has to in order to finance his education, and that's not to be condemned. However, it is unfortunate that the financial needs take time away from the other pursuits in the law. The time spent around the law school, where the student talks to other students and with pro-

fessors is an experience which enriches the legal education.

Q. Next semester the new law school building will be opened, what does the new building mean to Duquesne University School or Law? A. "Let me start to answer that with a story. During the second World War the British House of Parliament was hit by German bombs. There was discussion at the time as to how to rebuild the chamber and whether to enlarge it because the House itself was much too small, the membership having grown over the centuries and House itself remaining essentially unchanged . The House could not comfortably accommodate all of lhe members. Winston Churchill saw to it that it was rebuilt exacLly as it had been before, saying that the architecture of the place, the traditions of the place, and the forced crowding in important parliamentary debates carried with them a sense of the importance of the activity and of the moment, which more modern and more spacious accommodations would nol.

Architecture if it is good and appropriate to its function can enhance the function . Architecture which is bad or barely passable can demean the function. The furnishings and our

"L" shaped classrooms and our wretched acoustics have demeaned the educational process, and the morale, and the sense of responsibility of a generation of students who have gone through this. It is a tribute to their character that they have carried on as well as they have. Basically, what we have is a facility fit for a poor high school and not a professional institution.

I think that there will be a significant enhancement of the educational process. Both from the fact that people will be able to converse and hear each other in the new building, if the acoustics work out as well as I think they are going to; and also from the fact that the setting is one appropriate to the dignity of professional pursuits. " Q. Well, I wish you the best of luck in your teaching opportunity at John Marshall and hope to see you the following year in the new law school building.

A. "During my leave of absence I look forward to learning new courses and also to doing some writing. I fully expect to be back presently in our new facility doing the same song and dance ."

â&#x20AC;˘

JURIS APPOINTS NEW EDITORIAL BOARD ight students have been chosen to E serve on the 1982-83 Juris Editorial Board. The selections were based upon submitted resumes, prior writing experience, and intervicws conducted by the current Editorial Board and faculty advisor Professor John Scuillo.

Roseann La Rosa, a second-year day student, was chosen as Editor-inChief. Roseann, who presently scrves on the Editorial Board as an Associate Editor, is a 1979 graduate of Hofstra University where shc majored in Political Science.

Sharon Bogarad was selected for the position of Associate Editor.

Sharon, a first-year day student, received her B.A. in Communications from Bethany College and is a formcr writer / producer for WTOV-TV 9 in Steubenville, Ohio. Lisa Rich, a second-year day student, was also chosen a s an Associate Editor. Lisa, who currently serves as an Assistant Editor, is a 1980 graduate of Carlow College where she majored in

14

Business Management and English and was a recipient of the Tiernan Award for Excellcnce in Literature.

Also selected as an Associale Editor was Donna Rae. Donna, a secondyear student, is a graduate of the University of Maryland with a B.S. degree in J ournalislll alld a rormer newscaster ror W[SB-AM ill Bradforcl.

Four StudclllS were chosen lO serve on the Editorial Board as Assistant editors, Shirley Novak, a graduate of John Carroll University and a second-year day studen t, is presently a Juris staff writer. James Orie, a

rirst-year day student, is a graduate of Franklin and Marshall College where he majored in History and Political Science. Cheryl Croyle majored in Speech and Broadcasting at Marshall University und is a first-year day sludenl. Lehigh University graduate James Gaston was also selected as an Assistant Editor.

James, a second-year day studenl, majored in Finance and Economics.

Gery Nielups ki will serve as Business Editor. Gery, a first-year day sludent, received his B . S. in Marketing from John Carroll University. â&#x20AC;˘

Professor Conti Resumes Private Practice With Pittsburgh Firm t the end of the spring term, ProA fessor Joy Flowers Conti will leave her position at Duquesne Law School to resume private practice in the Pittsburgh office of the firm of Kirkpatrick, Lockhart , Johnson and Hutchison.

Once the decision was made, Professor Conti was able to reflect about her six years at Duq uesne as well as to the years ahead.

"It was a hard decision until I made it," Professor Conti said.

"There will be things about teaching that will be difficult to leave - just a s leaving practice the first time wa s difficult. Like other decisions, there are pro's and con's."

"The satisfaction in practice is different in one sense from teaching. In practice you have a day to day challenge. In teaching, it is more of a reflective kind of satisfaction."

Professor Conti doesn't see any difference in commitment in the move from teaching to practice. Instead, she sees commitment as a matter of balance. In her case, a balance bet ween pro fessional practice and growth, and personal fulfillment for her and her family.

One major reason for Professo r Conti's decision to leave was her desire to directly participate in the growth of law into new area s, especially into the area of corporative law which is her area of expertise and an area experiencing a great deal of expan sion. Professor Conti will be di-

rectly involved with that expansion through her private practice.

"New developments are coming about through practice, as opposed to case law," she said. "By going back into practice, I'll be able to take an active role in that development."

â&#x20AC;˘

LAW PROiF iE SSORS TAKE SABBATICALS econd-ycar day students at the Duquesne University School of Law will not have the privilege of being instructed in the finer points of Corporations Law by Professor William A. Donaher during the 1982-1983 school year. Professor Donaher will be spending fall semester, 1982 on sabbatical leave . However, Professor Donaher has informed Juris that he plans to return to Duquesne in time for the spring semester, 1983. Consequently, students will have the opportunity to enroll ,in either Products Liability or Securities Regulation during the spring semester.

The objectives of Professor Donaher's sabbatical leave are to provide time for scholarly research and writing, as well as an opportunity to travel to Europe for some needed rest and relaxation. Professor Donaher's

S

itinerary in Europe has not been predetermined. Rather, he will visit a cquaintances and points of interest at a pace yet to be determined.

Professor Donahcr has taught at Duquesne University School of Law since 1970. Prior to joining the Duquesne facul ,ty, Professor Donaher graduated from Harvard Law School in 1952, and taught for five years at Creighton University School of Law.

rofessor Alfred Pelaez has been teaching at Duquesne University P School of Law for the past sixteen years. During that time, he has taught the required Contracts course to in-

coming freshmen, while offering his expertise in the fields of Admiralty and Federal Practice to st udents enrolled in those electives.

Professor Pelaez will be taking a "part-time" sabbatical next year. He will continue to teach one course each semester during the evening, reserving his days for research and writing.

Presently, Professor Pelaez's plans include an effort to expand and update his previou sly published treatise on Admiralty . He also plans to author a one volume treatise on procedural practice in Pennsylvania.

Professor Pelaez received his Juris Doctor in 1960 from the University of Pittsburgh School of Law. Later, in 1966, he received his LL.M. from Yale University.

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Carol Los Mansmann Appointed To U.S. Distr,i ct Court or a professor who places a high - degree F of importance on the student, the change from educator to federal judge can be quite overwhelming.

For Judge Carol Los Mansmann, the change is one of promise and commitment. She is leaving her position at Duquesne Law School to accept an appointment to the United States District Court for the Western District of Pennsylvania.

Through the appointment, Judge Mansmann moves from the academic world into tile world of practicality .

In light of this career change, she sees little difference in the law within an academic community and in the practical application in the courts.

Although the law school curriculum does stress both the procedural and policy aspects of law, she sees room for further progress into new areas.

"I think it's an absolute necessity that policy issues be discussed to show students how the law has grown," she said. "But I also think we can expand the curriculum here to include more practical application."

"We need substantive programs

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dealing with the skills students will need to deal with clients. We also need to recognize the importance of legal research and writing to emphasize perceptive skills while keeping within our traditional curriculum."

Judge Mansmann does not leave teaching without some reflection. "I love teaching," she said. "I've always enjoyed the one on one opportunity to work with the students in the classroom as well as the various clinical programs I've been in charge of at Duquesne."

Despite the heavy workload that faces the federal judge, Carol Mansmann is hopeful that she will still find time for professional growth . With the support of family and friends, Judge Mansmann is taking up what she considers to be a Ii fetime opportunity. She is the first woman to be appointed to the federal bench for the Western District of Pennsylvania.

"It's a great opportunity. Not just for me, but for women in the legal profession," she said. "It wasn't exactly part of the plan, but I've always thought it would be fascinating. The appointment took a great deal of time ... all the steps ... all

the interviews. It's understandable though, it's a lifetime appointment."

"I'm thrilled about it all," she said, "I'm convinced that this is what I should be doing ."

Law School Organizations Install New Officers Law Review The Duquesne Law Review recently appointed the following students to the Editorial Board for Volume 21 of the quarterly publication.

Editor-in-Chief: Executive Director: Business Manager: Production Editor: Articles Editor: Comment Editor: Recent Decisions Editor: Associate Art ides Editor: Associate Comment Editor: Associate Recent Decision Editors:

Thomas French Michael Sedlock Lawrence J. Casey Kathryn Bindas Maria Verardi Mark Organisak Terry J. Trexler Patricia Perry Regis McClelland Carol A. Behers, Matt Curiale, George Faines, Deborah Lux, George Stewart

Phi Alpha Delta The Egan Chapter of the Phi Alpha Delta Law Fraternity recently selected the following students to serve as officers during the 1982-83 academic year.

Justice: Vice Justice (Day): Vice Justice (Eve): Clerk: Treasurer: Marshall:

Heidi Kraatz Robert Heister Chris Kornisky Cheryl Croyle Roseann La Rosa Richard Luciana

A.T.L.A. The following students were elected to serve as officers in the Duquesne Law School Chapter of the Association of Trial Lawyers of America during the 1982-83 academic year.

President: Vice-President (Day): Vice-President (Eve): Treasurer: Secretary: Parliamentarian:

Robert Heister Mary Broschak Marlene Bernstein Yolanda Bell Maria Verardi Robert Muelle

Appellate Moot Court Board The following individuals will comprise the Appellate Moot Court Board for the academic year 1982-83: Lisa Ondich Dave Obermeier Thomas Cordaro Denise Wilsher Thomas Gebler Donna Rae Kathryn Bindas Charles Brown Thomas French Margaret Bolt Deborah Lux

Tim Lucas Mindy Mulvihill Mary Broschak James O'Connor Andrea Griffith Eric Young Henry Sneath Kim Clark James Gaston Lisa Burgunder Heidi Kraatz

Student Bar Association The following students were elected as officers of the Student Bar Association for the 1982-83 academic year.

President: Vice-President (Eve): Vice-President (Day): Secretary: Treasurer:

Michael Sherman Judith Olmstead Steve Gershman Diana Wilkins James Gaston

Senior Graduation Dinner and Commencement The sixty-ninth annual law school commencement will be held on Sunday, June 13th, 1982, at II :00 a.m. in the Ballroom of the Duquesne Union. Immediately following the ceremony, a reception will be held in honor of the graduates on the cafeteria level of the Union.

The Senior Dinner will be held on Friday, June I I th at the Sheraton Hotel at Station Square. The reception will begin at 6:30 p.m. Dinner will be served at 7:30 p.m. with dancing to follow until I :00 a.m.

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FINIS! 19

Splinters

" I wake to sleep, and ta ke my waking slow.

1 feel my fate in whal I cannot fear.

I learn by going where I have to go."

Theodore Roelhke: "The W aking" Christma ves, those fir t two years of purgatory, I studied like hell, not worrying, k nowing that Santa laus knew. T hird year, I was silting on the rooflOp with a deer rifle, si nging Brahms Lullaby .

You come here wondering what the elders saw that turned their eye to glas .

Finally, your own eyes turn, and you till d on't know why. Lovers, family still know you, they say, bu t you're not 0 ure. Your feathers are well-oiled. T he tears bead up and ro ll off; o nly the bird-shot gets througb to let you know yo u 're alive. Not that it h urt ' " It 's more like being America. T he amurai grasps the family word, turn it inward , and waits for h istory .

• The las of ' 82: Frankenstein Comes lo Law School. " To uching film. I cried at the end, like a rea onably prudent man. Satan i done with us for now.

It eem we were the wor ( balch he ever gOl: a real A rli Ie 2 problem .

In the Salvadoran heat, we'd squat in our foxholes a the KG B-trained commando sel out on reconnai ance mi ions to the far corners of the cia room.

Fort unately, they a lway forgol where they were going. • Does everybody agree wi th that . . . C'mon people, it's EEEE EEASY." "The hip ha ailed, rig ht? ' " But what does it M EEE EEA N? SU RPRI SE!" "Are there any q uest ions? ... Seeing none . . . " The guard ians of the jungle are prepared to release you, now, if you wi h.

F u nny thing is, it's hard to leave the jungle . A sk M wgli. A k Dostoyevski.

There are tiger to be k illed. Bu t then, maybe Ih tigers are phaJ1loms . Maybe the who le crazy jungle is a p haJ1lom. You ca n be certain of only one thing: outsider won' t understa nd. So don't pend your life trying lo explain. Eilher Slay in here or walk out with your hands up .

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George Reilnour

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Sally Leiong New York, New York

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