Full opinion text
MEMORANDUM OPINION JUSTICE, District Judge. I. Introduction This civil action, brought pursuant to 42 U.S.C. § 1983, presents many complicated and thorny issues concerning whether regulations which restrict the manner in which lawyers licensed to practice law in Texas may advertise their services, or otherwise solicit business, abridge, inter alia, the right to freedom of expression under the First Amendment. The Supreme Court of Texas recently promulgated these regulations as amendments to the Texas Disciplinary Rules of Professional Conduct, and they are scheduled to become effective on April 1, 1995. Plaintiff Texans Against Censorship, Inc. (“TAC”), is a nonprofit Texas corporation whose stated purpose is to inform the public on issues relating to attorney advertising and to oppose the adoption of regulations restricting the right of attorneys to advertise. Plaintiffs Jim S. Adler, Wynne L. Creek-more, Jr., Charles Newton, Paul Weinstein, and J.M. (Mick) Bandy (the “individual plaintiffs”) are attorneys licensed to practice law in the state of Texas. As Texas lawyers, the professional conduct of the individual plaintiffs, as well as the attorney-members of TAC, is governed by the Texas Disciplinary Rules of Professional Conduct (the “Texas rules”). The individual plaintiffs have advertised their services, or otherwise solicited business in the past, and wish to continue advertising and soliciting in the future. They contend the amendments to the Texas rules will unconstitutionally interfere with their rights to engage in such advertising and solicitation. The Supreme Court of Texas entered the order promulgating the amendments to the Texas rules on November 4, 1994, and plaintiffs filed this civil rights action on November 10, 1994. Motions for expedited discovery were granted, and this action proceeded at an accelerated pace. A hearing on defendants’ motions to dismiss was conducted on January 5, 1995, and was denied on January 12, 1995. Trial commenced on January 30, 1995, and continued through February 3, 1995. Plaintiffs seek an adjudication from this court that the amended rules are, in whole or in part, unconstitutional, and an injunction prohibiting defendant the State Bar of Texas (“state bar”), defendant James M. McCormack, the Chief Disciplinary Counsel of the state bar, and defendant The District 1A Grievance Committee of the state bar from enforcing the amended rules. 11. Background In Texas, the power to regulate the practice of law resides in the Supreme Court of Texas, and derives from both a statutory grant of power, see Tex.Govt.Code Ann. § 81.011(c) (Vernon 1988), and the Supreme Court of Texas’ inherent judicial power. See generally Eichelberger v. Eichelberger, 582 S.W.2d 395, 397-98 & n. 1 (Tex.1979). In regulating the legal profession in the state, the Supreme Court of Texas has the responsibility of ensuring that Texas lawyers maintain appropriate standards of professionalism and responsibility. See Tex.R.Disciplinary P. preamble (1992), reprinted in Tex.Govt.Code Ann., tit. 2, subtit. G app. (Vernon Supp. 1995). To discharge this responsibility, the Supreme Court of Texas and the state bar have worked in concert to develop appropriate regulations governing the professional conduct of Texas lawyers. In 1984, the state bar began actively evaluating the American Bar Association’s model rules of professional conduct for possible adoption in Texas. See Schuwerk & Sutton, A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Hous.L.Rev. 1 (1990). In 1989, after an extensive drafting process, which involved numerous committees of the state bar, as well as comment by individual lawyers, the Texas Supreme Court adopted the Texas rules, which have been aptly described as a “Texanization” of the American Bar Association’s model rules to fit the particular forms and styles of practice common in Texas. See id. at 1-7. The Texas rules became effective January 1, 1990, and have governed the professional conduct of attorneys licensed to practice law in Texas since that date. See id. The Texas rules are mandates, that speak in terms of “shall” or “shall not.” See Tex.Disciplinary R.Prof. Conduct preamble ¶ 10, reprinted in Tex.Govt.Code Ann., tit. 2, subtit. G app. (Vernon Supp.1995). A Texas lawyer who fails to conform his professional conduct to the Texas rules commits professional misconduct and may be suspended or disbarred from practice. See Tex.R.Disciplinary P. 1.06(Q) (defining “professional misconduct” as, inter alia, “[ajcts or omissions by an attorney, individually or in concert with another person or persons, that violate one or more of the Texas Disciplinary Rules of Professional Conduct”). As Chief Disciplinary Counsel of the state bar, defendant McCormack is responsible for enforcing and prosecuting violations of the Texas rules. See Tex.R.Disciplinary P. 5.02 (listing duties of Chief Disciplinary Counsel of the state bar). Although the Texas rules were adopted by the Supreme Court of Texas, and are not a product of the Texas legislature, the Supreme Court of Texas has determined that the Texas rules should be construed as statutes. O’Quinn v. State Bar of Texas, 763 S.W.2d 397, 399 (Tex.1988). Part VII of the Texas rules, entitled “information about legal services,” regulates the manner in which Texas lawyers may advertise their services or otherwise solicit business. The version of part VII of the Texas rules adopted in 1990 restricts lawyer advertising and solicitations in several respects: lawyers are prevented from making false or misleading communications about their services or firm; lawyers may advertise their specialties in only limited ways; lawyers are required to disclose certain information, if the lawyer advertises that he or she practices in any area of the law; lawyers are prevented from sending written communications to prospective clients in certain circumstances; lawyers are forbidden from contacting certain potential clients in person or telephonieally, when a significant motivation for the solicitation is the lawyer’s desire for pecuniary gain; and lawyers may practice under only certain names. See Tex.Disciplinary R.Prof.Conduet 7.01-7.04. Defendants assert that the foregoing version of part VII needed amending, because it did not sufficiently protect Texas citizens from false or deceptive lawyer advertising and solicitation. Apparently, the Texas legislature also had concerns with lawyer advertising and solicitation in the state. During the 1993 regular legislative session, the Texas legislature considered House Bill 2506 which, if passed, would have enacted substantially more restrictive regulations regarding legal advertising and solicitations than existed in part VII of the Texas rules. The state bar reacted swiftly to what it perceived as a legislative encroachment on its sphere of concern, and members of the state bar, including Lonnie Morrison, Esquire, then the president-elect of the state bar, sought to convince the legislature that any problems concerning lawyer advertising were more appropriately addressed through the state bar’s self-enforcement regime. In conjunction with their lobbying efforts, members of the state bar began drafting more restrictive legal advertising and solicitation rules. Morrison produced the first draft, referred to as “draft A” during the trial of this action, and derived his product largely from the lawyer advertising rules already in existence, the rules under consideration in the Texas legislature, and similar rules in other states. Draft A was distributed to the Board of Directors of the state bar at its April 1993, meeting. Still concerned about potential legal advertising legislation, the board of directors of the state bar created the “Special Committee on Lawyer Advertising,” whose purpose was to put the finishing touches on part VII of the Texas rules, and thereby assuage any doubts the legislature might have as to the state bar’s commitment to reforming the legal advertising rules. The Special Committee on Lawyer Advertising, utilizing draft A as a roughcast, embarked on a hastened factfinding process to determine what changes to the legal advertising rules were needed, and what changes were appropriate. It conducted public hearings in eight Texas cities, substantially modified Draft A in several additional drafts, and consulted with John F. Sutton, Jr., formerly the Dean of the University of Texas School of Law, concerning the wording and constitutionality of the proposed amendments to the Texas Rules. After the public hearings, the special committee, as well as its individual members, received numerous comments and criticisms, from both within and without the legal profession. The special committee also reviewed various suggestions contained in decisions of the United States Supreme Court as to how lawyer advertising and solicitation might be lawfully regulated. Apparently, the. state bar’s efforts persuaded the Texas legislature not to enact the legal advertising legislation, and the 1993 regular legislative session ended without a vote on the legislation. The Texas legislature, however, instructed the state bar to adopt rules and regulations regarding legal advertising and solicitation by June 1, 1994. The Special Committee completed its work on the proposed amendments and submitted them to the board of directors of the state bar in June 1993. The board approved the proposed rules, and it authorized Morrison to' submit them to the Supreme Court of Texas for a referendum of the state bar’s members pursuant to the State Bar Act, Tex. Govt.Code Ann. § 81.024 (Vernon 1988). Before Morrison could do this, however, the Supreme Court of Texas recessed. Taking advantage of the additional time, Morrison and other state bar members reworked the proposed rules slightly, and then submitted them to the state bar’s board of directors again in September 1993. The board of directors approved the slightly altered proposed amendments, and authorized their submission to the Supreme Court of Texas for a referendum. The Supreme Court of Texas approved the referendum, and it was conducted between November 19, 1993, and December 20, 1993. Less than fifty-one percent of the membership of the state bar participated in the referendum, however, and the proposed amendments could not be promulgated. See Tex. Govt.Code Ann. § 81.024(d) (Vernon 1988). Undaunted, the state bar re-approached the Supreme Court of Texas in January 1994, seeking authorization for a second referendum on the proposed amendments to the Texas rules. TAC filed a brief in the Texas high court, opposing the state bar’s petition for a second referendum. The Supreme Court of Texas held a hearing on the propriety of a second referendum, at which both Morrison, on behalf of the state bar, and counsel for TAC presented argument to the Court. Ultimately, the Supreme Court of Texas authorized the second referendum by a five to four vote. Unlike the first referendum, however, the second referendum was conducted in conjunction with the election of the state bar’s officers. In addition, one of the amended rules, which was thought to be more controversial than the other proposed amendments, was submitted on a separate ballot. See Referendum ’94, 57 Tex.B.J. 3, 265 (1994). The second referendum was held between April 14, 1994, and May 16,1994. Over fifty-one percent of the state bar membership participated, and the proposed amendments on each of the ballots were approved. TAC then submitted several briefs to the Supreme Court of Texas, arguing that the amendments were unconstitutional and should not be promulgated. In response to these arguments, the Supreme Court of Texas modified the approved amendments slightly, and then promulgated that version of the amendments. As previously stated, these rules will become effective on April 1, 1995. III. The Amended Rules The amendments to the part VII of the Texas rules approved by the membership of the state bar, and promulgated by the Supreme Court of Texas (the “amended rules”), comprehensively regulate legal advertising and solicitations. They completely replace part VII of the Texas rules, even though some of the rules promulgated by the Supreme Court of Texas replicate rules previously in effect. Part VII of the Texas rules is divided into seven broad rules. Amended rule 7.01 regulates the names under which a Texas lawyer, or law firm, may practice. Amended rule 7.02 prohibits Texas lawyers from making false or misleading communications about any lawyer or law firm, and lists five categories of communications which are defined as false or misleading. Amended rule 7.03 limits a Texas lawyer’s ability to seek professional employment through in-person or telephone contact. Amended rule 7.04 comprehensively regulates the manner in which Texas lawyers may advertise in the public media. Amended rule 7.05 regulates Texas lawyers’ written solicitation communications. Amended rule 7.06 prohibits a Texas lawyer from accepting employment when he or she knows, or reasonably should know, that the person seeking the lawyer’s services does so as a result of a violation of the Texas rules. Finally, amended rule 7.07 creates a filing requirement with which Texas lawyers must comply when they advertise or distribute written solicitation communications, and establishes a prescreening procedure whereby Texas lawyers may obtain an advance advisory opinion concerning the lawfulness of their proposed advertisement or solicitation. In addition, the Supreme Court of Texas promulgated amended rule 8.05, which explicates the jurisdiction of the disciplinary authority over Texas lawyers, and amended rule 9.01, making the provisions of the Texas rules severable. In connection to the promulgation of the amended rules, a new permanent committee of the state bar was created. The “Lawyer Advertising and Solicitation Review Committee” (the “Review Committee”) is deputed to receive and file copies of advertisements and solicitations that must be filed under the terms of amended rule 7.07. The Review Committee is also responsible for issuing advance advisory opinions on the lawfulness of advertisements or solicitations that are submitted for a prescreening review. In addition, the amended rules provide that the Review Committee can require Texas lawyers to substantiate representations made in their advertisements or solicitations. IV. Plaintiffs’ Claims Plaintiffs challenge the amended rules on several different levels, and rely on a profusion of constitutional doctrines to attack their validity. The amended complaint states: Plaintiffs seek a declaration from this Court that the Amended Rules are, in whole, or in part, unconstitutional under both the federal and Texas constitutions. In particular, the Amended Rules violate the free speech rights guaranteed by the federal and Texas constitutions because they are unconstitutionally overbroad, void for vagueness, and ambiguous, are facially unconstitutional, and are unconstitutional as applied to the Attorneys. The Amended Rules also violate the equal protection provisions of the Texas and federal constitutions because they unequally apply to the speech of certain entities, organization, types of organizations, individuals, and types of individuals____ [T]he Amended Rules in conjunction with other disciplinary rules, act as a prior restraint on constitutionally protected speech and the system of enforcement is without constitutionally required procedural safeguards____ Pla.’s First Amd.Compl., Dec. 5, 1994, at ¶ 31. In sum, plaintiffs allege the amended rules violate the First Amendment in regard to the following: they apply unconstitutionally to plaintiffs’ commercial speech; they apply unconstitutionally to plaintiffs’ noncommercial speech; they are unconstitutionally overbroad; they are unconstitutionally vague; and, finally, they act as an unconstitutional prior restraint on speech. Plaintiffs also contend certain provisions of the amended rules violate the Equal Protection clause of the Fourteenth Amendment, since they apply unequally to different categories of lawyers or organizations. See Jt.Final Pretrial Ord., at 4. However, plaintiffs have failed to pursue these claims. Scant, if any, evidence was presented at trial to show that any classifications created by the amended rules violate equal protection principles, and plaintiffs completely ignore their equal protection claims in their lengthy post-trial briefs. Nonetheless, plaintiffs’ equal protection claims will be briefly addressed below. At the trial of this action, Plaintiffs made it clear that their attacks on the amended rules are both global and selective; that is, they seek to have the amended rules declared unconstitutional en masse, or, alternatively, rule-by-rule. In relation to their argument that the amended rules should be declared unconstitutional as a whole, plaintiffs contend that the amended rules create a regulatory scheme that is so burdensome as to unconstitutionally hamper the freedom of expression protected by the First Amendment; that they are substantially overbroad in their application to noncommercial speech; and that several undefined terms used in the amended rules are so vague and ambiguous as to unconstitutionally deprive Texas lawyers of any warning as to what expressive conduct may be illegal under their provisions. Plaintiffs spell out their challenges to individual rules in a document entitled, “Plaintiffs’ Objections to the Amended Rules,” which was admitted into evidence during trial as defendants’ exhibit 334. Plaintiffs drafted this document in response to the court’s request that plaintiffs specify which of the amended rules were truly at issue in this action. The document lists several provisions of the amended rules to which plaintiffs have no objection. Defendants relied on this document when they moved, pursuant to Fed.R.Civ.P. 52(c), for the entry of judgment as a matter of law at the conclusion of plaintiffs’ case in chief. Defendants argued that no issue was presented as to the provisions of the amended rules to which plaintiffs indicated they had no objection; thus, they maintained that judgment should be granted regarding those provisions. Counsel for plaintiffs opposed this motion, and asserted that challenges to all the amended rules were preserved in their “general objections” to the entirety of the amended rules. Defendants’ motion for judgment as a matter of law, pursuant to Fed.R.Civ.P. 52(c), was denied on the basis that plaintiffs were challenging each and every provision of the amended rules, insofar as their global attacks were concerned. It is therefore found that the constitutionality of the specific provisions to which plaintiffs have stated they have no objection is not in issue, other than in relation to plaintiffs’ integrated argument that the amended rules are, as a whole, unconstitutional. Accordingly, those provisions will not be individually considered. V. Justiciability A. Ripeness Defendants argue that this action is not ripe for adjudication, because, despite the Supreme Court of Texas’ promulgation of the amended rules, they are not currently in effect. This is essentially the same argument defendants made in connection with their motion to dismiss, and which was rejected. See Mem.Op., Jan. 12, 1995. As defendants have failed to provide the court with fresh argument or authority in regards to ripeness, the issue will not be reexamined. For the reasons set forth in the memorandum opinion denying defendants’ motion to dismiss, plaintiffs’ claims are found ripe for adjudication. B. Standing In addition, defendants contend that both the individual plaintiffs and TAC lack standing to bring all or some of their claims. Article III of the Constitution limits the judicial power of the United States to the resolution of “cases” and “controversies.” A litigant has standing to pursue a case or controversy under Article III, when the litigant shows a “personal injury fairly traceable to the ... allegedly, unlawful conduct and likely to be redressed by the requested relief.” See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); see also Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (“at an irreducible minimum, article III requires the party who invokes the court’s authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant____”) (quotation omitted). Here, in the context of an action for declaratory judgment, the facts must demonstrate “a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959-60, 22 L.Ed.2d 113 (1969) (citation omitted). 1. Standing of the Individual Plaintiffs Each of the individual plaintiffs, except for plaintiff Wynne L. Creekmore, testified that he has previously engaged in conduct that would be prohibited or heavily regulated under some of the amended rules, and that he wishes to continue in such conduct after the amended rules become effective. However, several provisions of the amended rules proscribe conduct that no plaintiff testified to having previously engaged in, or to having a desire to engage in, in the future. With respect to the amended rules that will actually affect the individual plaintiffs, the parties have stipulated that “with the promulgation of the amended rules, McCormack, the Review Committee, and the state bar grievance committees will begin to enforce the amended rules.” See Joint Fin.Pretrial Ord., Jan. 26, 1995, at ¶28. Thus, as attorneys licensed to practice law in Texas, the individual plaintiffs must conform their conduct to the provisions of the amended rules the moment they become effective. If they do not, it is highly likely that they will be sanctioned. The Supreme Court has determined that litigants facing similar predicaments have standing. In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court held that Georgia doctors had standing to pursue challenges to the constitutionality of state abortion laws before their enforcement, despite the fact that the doctors had never been threatened with prosecution under the Georgia laws: The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet that statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Id. at 188, 93 S.Ct. at 745. Similarly, in Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), the Court held that a teacher need not risk arrest and prosecution prior to seeking a judicial pronouncement that the state’s anti-evolution statute was unconstitutional. In Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), the Court stated that a plaintiff need not chance arrest and prosecution prior to filing suit, “[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder ...” Id. at 298, 99 S.Ct. at 2309. Plaintiffs should not be forced to risk possible ouster from their chosen profession, in order to challenge rules they contend will infringe upon their constitutional rights by regulating conduct they have previously engaged in, and wish to continue engaging in. See Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974) (“It is not necessary that [the attorney-plaintiffs] first expose [themselves] to actual arrest or prosecution to be entitled to challenge a statute that [they] claim deters the exercise of [their] constitutional rights.”)- Hence, the individual plaintiffs have demonstrated a sufficient threat of injury from the amended rules to warrant the exercise of jurisdiction over their challenges to the provisions of the amended rules that will actually affect their conduct. See Spencer v. Honorable Justices of Supreme Court of Pennsylvania, 579 F.Supp. 880, 883-84 (E.D.Pa.1984), aff'd, 760 F.2d 261 (3d Cir.1985) (finding Pennsylvania lawyer had sufficient personal stake in outcome of litigation to confer standing to challenge constitutionality of state bar rules without having to undergo disciplinary action); Durham v. Brock, 498 F.Supp. 213, 216-17 (M.D.Tenn.1980), aff'd, 698 F.2d 1218 (6th Cir.1982) (same). The same cannot be said, however, for the individual plaintiffs’ challenges to the provisions of the amended rules that will have no effect whatsoever on their conduct. See Madsen v. Women’s Health Center, Inc., — U.S. -, -, 114 S.Ct. 2516, 2530, 129 L.Ed.2d 593 (1994) (finding plaintiffs lacked standing to challenge portion of injunction that did not apply to them). There was no testimony from plaintiffs that they desired to practice under a trade name, as prohibited by amended rule 7.01; that they desire to include comparisons of their services with other lawyers’ services in their advertisements or others solicitations, as prohibited by amended rule 7.02(a)(3); that they desired to advertise in the public media as part of an advertising cooperative or venture as regulated by amended rule 7.04(o), or that they desired to distribute written solicitation letters by registered mail, or by other manner requiring personal delivery, to the communication’s recipient, as prohibited by amended rule 7.05(b)(5). Since the individual plaintiffs have not indicated any credible intention of engaging in conduct that would be proscribed by these particular provisions, their claims that these rules violate the Constitution amount to only generalized grievances. Accordingly, it is found that the individual plaintiffs lack standing to challenge amended rules 7.01, 7.02(a)(3), 7.04(o), and 7.05(b)(5). 2. Standing of TAC TAC is a corporation, and thus is not subject to the. provisions of the amended rules itself. However, TAC is also a consumer of legal services. The Supreme Court has determined that consumers have a constitutional right to receive advertising protected by the First Amendment. Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 757, 96 S.Ct. 1817, 1823, 48 L.Ed.2d 346 (1976). Accordingly, TAC has standing to challenge the amended rules, including the provisions the individual plaintiffs lack standing to challenge, on its own behalf. TAC also has standing to assert the rights of its members, at least insofar as it brings facial challenges to the amended rules. An organization has standing to assert the claims of its members, provided: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). TAC clearly satisfies (a) and (b), since it has been determined that plaintiff Jim S. Adler, a member of TAC, has standing to sue on his own behalf, and since TAC’s stated purpose, to oppose the adoption of restrictions on legal advertising, is germane to the constitutional interests TAC seeks to protect in this action. In addition, TAC fulfills the third requirement of representative standing, in that neither the facial claims asserted, nor the prospective relief sought, require the participation of TAC’s individual members. C. Exhaustion of State Remedies Defendants also contend that “principles of comity, abstention, exhaustion of administrative and state remedies are violated” by reason of the fact that “plaintiffs have challenged rules that, in identical or substantially similar form, have been in effect for years, without seeking redress or without notice to the Texas Supreme Court, the promulgator of the rules.” See Joint Fin.Pretrial Ord., at p. 6. Apparently, defendants’ argument is that, whereas the Supreme Court of Texas finally settled the constitutionality of the amended rules under the Texas Constitution when they promulgated them, the Court did not consider the constitutionality of the amended rules under the United States Constitution, and thus plaintiffs’ claims should be presented to a Texas court prior to federal court consideration. See Jt.Final Pretrial Ord., at 6. Plaintiffs in federal actions brought pursuant to 42 U.S.C. § 1983 are generally not required to exhaust state administrative or judicial remedies prior to bringing suit. Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) (administrative remedies); Zinermon v. Burch, 494 U.S. 113, 123-26, 110 S.Ct. 975, 982-83, 108 L.Ed.2d 100 (1990) (judicial remedies). Hence, contrary to defendants’ contention, plaintiffs were not required to present their claims to a Texas court prior to instigating this action. In addition, it can be presumed the Supreme Court of Texas previously considered the constitutional claims plaintiffs now raise. The amended rules were not issued without deliberation. Prior to their promulgation, TAC and the state bar presented several briefs to the Supreme Court of Texas regarding the constitutionality of the amended rules under both the Texas Constitution and the United States Constitution. See Def.s’ Ex.s 253-58. Ultimately, the Supreme Court of Texas modified the amended rules somewhat before promulgating them. It thus appears the Supreme Court of Texas examined the constitutionality of the amended rules under both the Texas Constitution and the United States Constitution before putting them in operation. Presumably, the changes made were designed to cure any deficiencies the Court found. Accordingly, it is found that the Supreme Court of Texas has finally ruled on the constitutionality of the amended rules. VI. First Amendment Analysis Because this action presents a justiciable controversy, the merits of plaintiffs’ claims that the amended rules are unconstitutional must be addressed. Plaintiffs go to great lengths in attempting to establish that the amended rules implicate noncommercial or core speech, and thus invoke the constitutional standards applicable to fully protected expression. Such effort is understandable, in consideration of the fact that the protection afforded noncommercial expression is considerably more extensive than the “limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978), afforded purely commercial communications. A. Do the Amended Rules Reach Noncommercial Speech? As has been noted, plaintiffs contend the amended rules unconstitutionally apply to both their commercial and their noncommercial expression, and are substantially over-broad in application to the noncommercial speech activities of persons not before the court. Defendants argue that the amended rules implicate only commercial speech, and that any noncommercial speech plaintiffs wish to engage in is not covered by the amended rules. The Supreme Court has defined commercial speech as speech whose purpose is to “propose a commercial transaction,” City of Cincinnati v. Discovery Network, Inc., — U.S.-, ---, 113 S.Ct. 1505, 1512-13,123 L.Ed.2d 99 (1993); Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 482, 109 S.Ct. 3028, 3036, 106 L.Ed.2d 388 (1989), or, more broadly, as speech “related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 561, 100 S.Ct. 2343, 2349, 65 L.Ed.2d 341 (1980); In re R.M.J., 455 U.S. 191, 204 n. 17, 102 S.Ct. 929, 938 n. 17, 71 L.Ed.2d 64 (1982); see also Discovery Network, Inc., — U.S. at ---, 113 S.Ct. at 1512-13 (discussing these two definitions of commercial speech). It is clear, for instance, that communication of the message, “I will sell you the X prescription drug at the Y price,” is commercial speech, since it is speech which proposes a commercial transaction. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748, 761, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976). But, it has been observed that the exact dividing line between commercial and noncommercial expression is not always easily ascertainable. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 81, 103 S.Ct. 2875, 2888, 77 L.Ed.2d 469 (1983) (Stevens, J. concurring in the judgment) (commenting that “the impression that ‘commercial speech’ is a fairly definite category of communication ... may not be wholly warranted.”); see also Shiffrin, The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment, 78 Nw.L.Rev. 1212, 1229 (1983) (noting situations where commercial and noncommercial speech are difficult to distinguish). 1. Does the Language of the Amended Rules Encompass Noncommercial Speech? Plaintiffs contend the amended rules, by their own terms, regulate lawyer advertisements and solicitation communications which are noncommercial speech. The amended rules, however, cannot be read to sweep so broadly. Initially, cognizance should be taken that the amended rules are a part of a body of rules designed to govern the practice of law. See Tex.Disciplinary R.Prof.Conduct preamble. The title of the amended rules, “information about legal services,” and the repeated references to “practice,” “services,” and “professional employment” contained in the amended rules bespeak the amended rules’ focus on the commercial nature of the legal profession. While Texas lawyers may speak in many different capacities, e.g., as teachers, journalists, television commentators, or interested citizens, the amended rules, by their own terms, have no application when a lawyer speaks outside the context of the legal profession. Second, the specific language used in the amended rules demonstrates that they apply only to communications which propose a commercial transaction. The provisions of the amended rules become applicable, when a lawyer “advertises in the public media,” see amended rule 7.04, sends “a written solicitation communication,” see amended rule 7.05, or “communicates concerning a lawyer’s services,” see amended rule 7.02. The Supreme Court has consistently regarded regulations aimed at a professional’s “advertisements” or “solicitations” as implicating only commercial speech. See Edenfield v. Fane, — U.S. -, -, 113 S.Ct. 1792, 1797, 123 L.Ed.2d 543 (1993) (certified public accountant’s “solicitations” are commercial speech); Peel v. Attorney Reg. & Disciplinary Comm’n, 496 U.S. 91, 99-100, 110 S.Ct. 2281, 2287, 110 L.Ed.2d 83 (1990) (lawyer’s advertisement as certified trial specialist is commercial speech); Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 472, 108 S.Ct. 1916, 1921, 100 L.Ed.2d 475 (1988) (“Lawyer advertising is in the category of constitutionally protected commercial speech”); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637, 105 S.Ct. 2265, 2274, 85 L.Ed.2d 652 (1985) (“it is clear enough that the speech at issue in this case — advertising pure and simple — falls within the [bounds of commercial speech].”). The use of the phrase “communications about a lawyer’s services or qualifications” in amended rule 7.02, however, is more troublesome, and might be interpreted as encompassing noncommercial speech. Notwithstanding, the comments to that rule make clear that it, as well as the other amended rules, apply only to commercial speech: The rules within part VII are intended to regulate communications made for the purposes of obtaining professional employment. They are not intended to affect other forms of speech by lawyers, such as political advertisements or political commentary, except insofar as a lawyer’s effort to obtain employment is linked to a matter of current public debate” See Amended rule 7.02 emt. I. This language makes it abundantly plain that only a Texas lawyer’s communication made for the purpose of obtaining professional employment falls within the ambit of the amended rules. Because employing a lawyer is one type of commercial transaction, the amended rules must be understood to regulate only those communications made for the purpose of proposing a commercial transaction. 2. Despite the language used in the amended rules, does the evidence establish that the amended rules apply to plaintiffs’ noncommercial speech? Plaintiffs contend the evidence presented at trial conclusively establishes that various of their newsletters, public service announeements, political campaign advertisements, and even messages posted on computer bulletin boards, constitute noncommercial speech subject to the amended rules. Defendants, on the other hand, assert that the amended rules regulate only lawyer communications, advertisements, or solicitations which propose a commercial transaction. Plaintiffs point to an advertisement plaintiff Jim S. Adler (“Adler”) published in the Pasadena Citizen, which related to whether the current system of electing state judges in Texas should be changed, as noncommercial speech covered by the amended rules. Plaintiffs assert that this advertisement falls within the amended rules, because Morrison testified that he believed it was a commercial communication subject to the amended rules. Plainly, the Pasadena Citizen advertisement does not propose a commercial transaction, see New York Times v. Sullivan, 376 U.S. 254, 265-66, 84 S.Ct. 710, 718-19, 11 L.Ed.2d 686 (1964) (finding that paid advertisement published in New York Times was not a “commercial” advertisement); and the amended rules must be understood to reach some noncommercial speech if Morrison is correct in his assumption that this type of advertisement is covered by them. Morrison’s opinion that this advertisement falls within the purview of the amended rules, however, is neither controlling nor conclusive. Morrison based his opinion on Adler’s testimony that the advertisement was published with hopes that subscribers of the Pasadena Citizen would read the advertisement and hire him. Although Adler admitted that he hoped to generate business by publishing it, the advertisement itself cannot be said to propose a commercial transaction. It appears obvious that anyone reading this advertisement, without knowledge that Adler published it with the specific intent of obtaining clients, would not likely think it was published for the purpose of obtaining professional employment. At most, the advertisement suggests that “Jim S. Adler, attorney,” would like to hear what subscribers of the Pasadena Citizen think about reforming the judicial selection process in Texas. Accordingly, Adler’s advertisement must be understood to be noncommercial speech, and neither the state bar, nor any other governmental body, may regulate such speech, except in extraordinary circumstances. See Bolger, 463 U.S. at 65, 103 S.Ct. at 2879 (“With respect to noncommercial speech, this Court has sustained content based restrictions only in the most extraordinary circumstances”) (footnote omitted). But, since the advertisement itself does not propose the professional employment, Morrison’s conclusion that Adler’s advertisement is subject to the amended rules is erroneous. Certainly, Texas lawyers who attempt to attract clients by distributing newsletters, public service announcements, or other forms of advertisement and solicitation of the nature of the Pasadena Citizen advertisement may do so with hopes of marketing their services or otherwise achieving pecuniary gain. It is not their desire to make money, however, which will bring these newsletters, announcements, or solicitations within the provisions of the amended rules. Instead, it is only when the message conveyed by the communication suggests to the public, or a specific individual, that the lawyer’s professional services are available for hire that the communication must meet the requirements of the amended rules. Plaintiff Adler’s Pasadena Citizen advertisement simply does not contain such a suggestion, and hence it is not covered by the amended rules. 3. Do the amended rules regulate speech based solely on a lawyer’s desire for pecuniary gain? Plaintiffs also take the position that the sole criterion determining the applicability of the amended rules is a lawyer’s desire for pecuniary gain. See Pla.s’ Resp. to Def.s’ Posttrial Submission, Feb. 28, 1995, at 3. Plaintiffs correctly point out that economic motivation, alone, is not sufficient to transform otherwise noncommercial speech into commercial expression. See Fox, 492 U.S. at 482, 109 S.Ct. at 3036 (“Some of our most valued forms of fully protected speech are uttered for a profit”); Bolger, 463 U.S. at 67, 103 S.Ct. at 2880 (“the fact that Youngs has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech”). Nevertheless, economic motivation is not totally irrelevant to the determination of whether speech is commercial or noncommercial. See In re Primus, 436 U.S. 412, 422, 98 S.Ct. 1893, 1899-1900, 56 L.Ed.2d 417 (1978) (distinguishing solicitation for purpose of providing free legal services with solicitations made to achieve pecuniary gain). Manifestly, one reason lawyers propose commercial transactions in their advertisements is to make money. While plaintiffs are correct that several provisions of the amended rules concern a lawyer’s desire for pecuniary gain, see amended rules 7.02 cmt. 1, 7.03, 7.05(d)(3), 7.05(e), 7.07(d), such profit motivation is not the sine qua non of the amended rules. For example, plaintiffs argue that amended rule 7.07 regulates speech based on a lawyer’s desire for pecuniary gain. They base this contention on the wording of amended rule 7.07(d)(7), which exempts from the filing requirements imposed by the rule, a written solicitation communication if the lawyer’s use of the communication to secure professional employment was not significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain. Contrary to plaintiffs’ postulation, however, the primary focus of amended rule 7.07 is not economic motivation. Rather, the filing requirements and the exemptions contained in this rule, as with all of the amended rules, operate only on an attorney’s advertisement, solicitation, or newsletter that is distributed for the purpose of obtaining professional employment. Again, such an advertisement, newsletter, or solicitation is commercial speech. 4. Do the amended rules regulate “inextricably intertwined” commercial and noncommercial speech? Finally, plaintiffs argue that pure speech is “inextricably intertwined” with commercial speech in their newsletters, advertisements, and public service announcements, and, consequently, the amended rules reach noncommercial speech. In Riley v. Nat’l Fed. of the Blind of North Carolina, 487 U.S. 781, 796, 108 S.Ct. 2667, 2677, 101 L.Ed.2d 669 (1988), the Supreme Court held that where “the component parts of single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Therefore we apply our test for fully protected expression.” The Court elaborated on this facet of First Amendment jurisprudence in Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). In Fox, the Supreme Court reviewed challenges brought by several students at the State University of New York to a school regulation that prevented commercial enterprises from operating on state university campuses, except under certain circumstances. The students claimed the regulation violated their rights to noncommercial speech, because it prevented them from holding “Tupperware parties” on campus. At these gatherings, commercial enterprisers would, in addition to promoting their houseware products, discuss issues such as “how to be financially responsible and how to run an efficient home.” Id. at 472-74,109 S.Ct. at 3030-31. Relying on Riley, the students argued that their First Amendment claims should be reviewed under the standards applicable to fully protected speech, for the reason that the commercial and noncommercial aspects of the “Tupperware parties” were inextricably intertwined. The Supreme Court disagreed: Including these home economic elements no more converted [the commercial enterprise’s] presentations into educational speech, than opening sales presentations with a prayer or a Pledge of Allegiance would convert them into religious or political speech.... Communications can constitute commercial speech notwithstanding the fact that they contain discussions of important public issues____ We have made clear that advertising which links a product to a current public debate is not thereby entitled to the constitutional protection afforded noncommercial speech. Id. at 474-75, 109 S.Ct. at 3031-32 (internal quotations and citations omitted). Plaintiffs maintain that certain newsletters distributed by plaintiff Adler contain “inextricably intertwined” commercial and noncommercial speech. See Pla.s’ Ex. 140. These newsletters, entitled “StraightTalk,” begin with the phrase, “A Message from Attorney Adler ...,” and are followed by several pages of articles relating to consumer and public safety. The last page of each of these newsletters contains the following language: TELL YOUR FRIENDS ABOUT US No one expects them, but accidents do happen. If someone you know has been injured, we can help. At the Law Offices of Jim S. Adler, we’ve helped thousands of people get compensated for their injuries. Please give our toll free number to someone who might need our services____ We thank you for your past support and are ready to help you again. See Pla.s’ Ex. 140. The noncommercial and commercial speech contained in Adler’s newsletters cannot be considered inextricably intertwined. Though these newsletters contain articles relating to public health and safety, and thus contain speech that unquestionably would be fully protected in other contexts, the thrust of the newsletters is to inform its recipients that Attorney Adler and his firm are lawyers who might be able to help injured persons. In addition, nothing would prevent Adler from distributing the noncommercial information contained in the newsletters separately from the commercial information. See Fox, 492 U.S. at 474, 109 S.Ct. at 3031 (commercial and noncommercial aspects of presentation were not “inextricably intertwined,” because “[n]o law of man or of nature makes it impossible to sell housewares without teaching home economies”). Though the newsletters link advertisements of “attorney Adler’s” services to issues of public concern, the Supreme Court has determined that linking commercial speech to issues of public concern does not convert otherwise commercial expression into noncommercial speech. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66-67 & n. 13, 103 S.Ct. 2875, 2880 & n. 13, 77 L.Ed.2d 469 (finding that drugstore’s mass mailings, entitled “Condoms and Human Sexuality” and “Plain Talk About Venereal Disease” were commercial speech). Taken as a whole, Adler’s newsletters are commercial communications. The amended rules, then, must be understood to apply only to a Texas lawyer’s advertisements, solicitations, or communications which propose a commercial transaction. It is conceivable, of course, that the amended rules might be applied beyond their intended scope, and reach Texas lawyers’ noncommercial expression. It would be inappropriate, however, to interpret the amended rules as sweeping so broadly, prior to the time when those given the charge of enforcing the amended rules have had the opportunity of construing the rules themselves. Clearly, nothing would preclude a Texas lawyer erroneously sanctioned under the Texas rules for speaking noncommercially from arguing that the sanction violates the First Amendment standards applicable to fully protected speech. It is concluded, therefore, that the amended rules must be analyzed under the guidelines pertinent to commercial speech. B. Do the Amended Rules Violate the First Amendment Right to Speak Commercially? It is now beyond question that legal advertising or solicitation is a form of commercial speech entitled to protection under the First Amendment. Justice Blackmun, writing for the Court in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), explained the reasons for extending protection to commercial expression: The listener’s interest is substantial: the consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking. Id. at 364, 97 S.Ct. at 2699 (internal citations omitted). The Supreme Court has developed certain tests for analyzing regulations of commercial speech. Commercial speech that is false, misleading, or concerns an unlawful transaction, which adds nothing to, and actually taints the “marketplace of ideas,” may be prohibited altogether. See Ibanez v. Florida Dept. of Bus. & Pro. Regulation, — U.S. -, -, 114 S.Ct. 2084, 2088, 129 L.Ed.2d 118 (1994); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985). The state retains the ability to regulate truthful, nonmisleading speech that does not concern an unlawful transaction; but the state may restrict such commercial speech, only if “the government’s interest in doing so is substantial, the restrictions directly advance the government’s asserted interest, and the restrictions are no more extensive than necessary to serve that interest.” Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986) (citing Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980)). In Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), the Court explained that the last criterion does not require the regulation to be the least restrictive means available to accomplish the government’s purpose, but, rather, only a reasonable fit between the two must be shown. Id. at 480, 109 S.Ct. at 3034-35; see also Edenfield v. Fane, — U.S. -, -, 113 S.Ct. 1792,1798,123 L.Ed.2d 543 (regulation must be in “reasonable proportion to the interest served”). The amended rules challenged by plaintiffs in this action primarily regulate commercial speech in three regards: prohibiting certain false or misleading communications, or methods of communication thought to be inherently conducive to overreaching or fraud; requiring advertisements or solicitations to contain certain disclaimers; and requiring advertisement or solicitations to be filed with the Review Committee of the state bar. Because there must be a reasonable proportion between the government’s interest in regulating commercial speech and the means chosen to further that interest, each of the challenged provisions of the amended rules must be individually scrutinized, to ensure they are not more broad than reasonably necessary to protect consumers from false and deceptive communications from lawyers. Before adverting to this analysis, however, it is helpful to note that the Supreme Court has indicated more tolerance for regulations that impose less restrictive regulations on speech, such as disclosure requirements, than those imposing total prohibitions on speech. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 105 S.Ct. 2265, 2282, 85 L.Ed.2d 652 (1985) (“[I]n virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, ‘warning[s] or disclaimer[s] might be appropriately required ... in order to dissipate the possibility of consumer confusion or deception’”) (quoting In re R.M.J., 455 U.S. 191, 201, 102 S.Ct. 929, 936, 71 L.Ed.2d 64 (1982); see also Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977) (holding states may not ban truthful advertisements concerning the availability and terms of routine legal services, but also noting “that some limited supplementation, by way of warning or disclaimer or the like, might be required ... so as to assure the consumer is not misled.”); In re R.M.J., 455 U.S. at 203, 102 S.Ct. at 937 (“the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing in of areas of practice, if the information may also be presented in a way that is not deceptive.”). Consistent with this view, the Supreme Court has observed that “a holding that a total ban is unconstitutional does not necessarily preclude less restrictive regulation of commercial speech.” Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91, 111 n. 17, 110 S.Ct. 2281, 2292 n. 17, 110 L.Ed.2d 83 (1990) (plurality opinion). For instance, in Zauderer, the Court rejected an advertising attorney’s argument that a state-imposed requirement that he include a disclaimer in his advertising unconstitutionally abridged his First Amendment rights: Appellant, however, overlooks material differences between disclosure requirements and outright prohibitions on speech. In requiring attorneys who advertise their willingness to represent clients on a contingent-fee basis to state that the client may have to bear certain expenses even if he loses, Ohio has not attempted to prevent attorneys from conveying information to the public; it has only required them provide somewhat more information than they might otherwise be inclined to present.... Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant’s constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Id. at 650-51,105 S.Ct. at 2281-82 (emphasis in original). Nonetheless, a state’s imposition of disclosure or disclaimer requirements on commercial speech is not immune from constitutional constraints. The Court has held that disclosure requirements that are “unjustified” or are “unduly burdensome” may violate the First Amendment’s protection of commercial speech. Zauderer, 471 U.S. at 651, 105 S.Ct. at 2281-82. For example, in Ibanez v. Florida Department of Business Professional Regulation, Board of Accountancy, — U.S. -, -, 114 S.Ct. 2084, 2090, 129 L.Ed.2d 118 (1994), the Court held unconstitutional a regulation which prohibited a lawyer who was also a certified financial planner (“CFP”) from designating herself as a “specialist” in an advertisement, unless her advertisement also included a disclaimer listing, inter alia, the “recognizing agency’s” educational, experience, and testing requirements for certification, as well as a statement that “the recognizing agency is not affiliated with or sanctioned by the state or federal government.” The Court’s holding was based on the state’s failure to point to any evidence showing the CFP designation was even potentially misleading, and also the fact that the detail required in the disclaimer “effectively rules out notation of the ‘specialist’ designation on a business card or letterhead, or in a yellow pages listing.” Id. at ---, 114 S.Ct. at 2090-91 (footnote omitted). Thus, while disclosure requirements are generally understood to be a less-intrusive regulation of commercial speech, unduly burdensome or unjustified disclosure requirements will not withstand constitutional scrutiny. Defendants carry the burden of vindicating the amended rules under these standards, for “[i]t is well established that the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.” Edenfield, — U.S. at -, 113 S.Ct. at 1800 (quotation omitted). Moreover, this burden is not inconsequential; defendants must demonstrate that the perceived harms concerning legal advertising and solicitation are real, and will be alleviated in a significant way by the amended rules. See id., — U.S. at -, 113 S.Ct. at 1803. 1. Is the governmental interest advanced in support of the amended rules substantial? Defendants contend the amended rules advance a substantial governmental interest, because they are crafted to protect the public from false, deceptive, or misleading lawyer communications, or, stated another way, to ensure communications from lawyers flow both freely and cleanly. Plaintiffs concede that the Supreme Court has recognized defendants’ professed governmental interest as substantial. See Edenfield, — U.S. at -, 113 S.Ct. at 1799 (“ ‘the First Amendment ... does not prohibit the State from insuring that the stream of commercial information flow[s] cleanly as well as freely’ ”) (quoting Virginia State Bd. Of Pharmacy, 425 U.S. at 771-72, 96 S.Ct. at 1830-31). Nonetheless, plaintiffs argue that defendants’ stated purpose is merely pretextual, the defendants’ real concern being the protection of the legal profession’s image, as well as the protection of those lawyers who are so well ensconced in the legal profession as not to need to advertise to attract clients. See Pla.s’ Posttrial Brief 15. Hence, plaintiffs maintain that the alleged pretextual governmental interest cannot justify any of the amended rules. Cf. Edenfield, — U.S. at -, 113 S.Ct. at 1798 (“Neither will we turn away if it appears that the stated interests are not the actual interests served by the restriction.”). Contrary to this argument, however, the evidence establishes that real, and not merely illusory, concerns about false and misleading lawyer communications were the bases of the amended rules. The transcripts from the eight hearings conducted by the Special Committee during the drafting process, which were admitted into evidence during trial, establish that the Special Committee was made aware of significant problems with false or deceptive attorney advertising and solicitations. For example, Morrison recalled seeing a document at one of the hearings that resembled a formal legal document, such as a subpoena, and contained language to the effect that the person to whom the document was sent should appear at the law offices of a particular lawyer to discuss a recent automobile accident. This type of solicitation letter is misleading, in that it could lead its recipient to believe some legal process had been instigated by which the soliciting lawyer had been assigned the recipient’s particular case. Other evidence presented to the Special Committee suggested