Commission for Lawyer Discipline, Petitioner

Barry Robert Benton, Respondent

Justice Enoch, joined by Justice Hecht and Justice Owen, concurring in part and dissenting in part.

I share the plurality's view that Rule 3.06(d) does not violate state or federal constitutional guarantees of free speech and equal protection. I disagree, however, that the Rule is vague in any respect. Thus, I join only in Parts I through V(B) and Part V(E) of the plurality opinion. I would reverse the court of appeals' judgment and render judgment as it was originally rendered by the trial court. I concur in the Court's judgment only to the extent that it permits Benton to be disciplined under Rule 3.06(d).

Correctly, the plurality concludes that the word "calculated" "modifies all three of the challenged verbs, 'harass,' 'embarrass,' and 'influence.'" Also correctly, the plurality then defines the term "calculated" as creating an "objective reasonableness standard." A vagueness analysis questions whether the regulation is "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with." Unlike the statute in Long v. State , and unlike the other cases cited by Justice Baker, Texas Disciplinary Rule of Conduct 3.06(d) incorporates an objective reasonableness standard for determining whether the "ordinary attorney" would believe that his conduct was "objectively likely to" harass, embarrass, or influence jurors.

The inclusion of the "calculated to" language in Rule 3.06(d) "defin[es] the prohibited speech in terms of what effect an ordinary lawyer would expect the speech to have" and "assuages the vagueness doctrine's concern with whether 'men of common intelligence must necessarily guess at [the statute's] meaning.'"

But the plurality, while recognizing this objective reasonableness standard, unnecessarily proceeds to define "harass." It then compounds its error by concluding that the word "embarrass" is unconstitutionally vague. The plurality should have rejected Benton's facial vagueness challenge outright. Regarding the word "harass," the plurality should have avoided its foray into statutes from other jurisdictions, especially when those statutes address an entirely different subject matter. Furthermore, as for the word "embarrass," the plurality misses the point when it states that "the problem is not that one cannot understand what 'embarrass' means in the abstract, but that one cannot tell with any sort of accuracy what speech will trigger embarrassment in the 'average' listener."

The issue in this case is whether the speaker's actions were "objectively likely to" harass or embarrass the listener. Whether a listener might be, or actually was, harassed or embarrassed is only indirectly relevant. If, under the objective reasonableness standard articulated by the plurality today, the speech was "calculated merely to harass or embarrass," then the rule is violated. The question is whether an objectively reasonable lawyer would think his or her conduct was "likely to" cause harassment or embarrassment and whether the purpose of that communication was "merely" to enhance the likelihood that such harassment or embarrassment would occur.

Finally, this Court's rules should be treated like statutes and should be governed by the same rules of interpretation and construction. We are to make every effort to save a statute or rule from constitutional infirmity. The plurality articulates an objective reasonableness standard that girds Rule 3.06(d) against Benton's vagueness challenge. Proceeding further to define the word "harass" and declare the word "embarrass" unconstitutionally vague is jurisprudentially unwarranted and unsound.

The trial court correctly enforced Rule 3.06(d), and the court of appeals erred in reversing the judgment. I therefore agree with the plurality that the court of appeals' judgment should be reversed, and I concur in the Court's judgment only insofar as it permits the trial court to discipline Benton.

_____________________________

Craig T. Enoch

Justice

Opinion delivered: July 14, 1998

___ S.W.2d at ___.

Id. at ___.

United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers , 413 U.S. 548, 579 (1973); see also Howell v. State Bar , 843 F.2d 205, 208 (5 ^th Cir. 1988) (noting that a vagueness challenge is informed by context and that in reviewing an attorney disciplinary rule, one may take into account the special knowledge and experience that lawyers possess).

See ___ S.W.2d at ___. Compare Tex. Disc. R. Prof. Cond. 3.06(d), with Long v. State , 931 S.W.2d 285, 288 (Tex. Crim. App. 1996) (considering Texas stalking statute and noting that it lacked an objective standard), and State v. Bryan , 910 P.2d 212, 218 (Kan. 1996) (considering Kansas stalking statute and noting that it lacked an objective standard).

___ S.W.2d at ___ (quoting Coates v. City of Cincinnati , 402 U.S. 611, 614 (1971) (quoting Connally v. General Constr. Co. , 269 U.S. 385, 391 (1926))).

See ___ S.W.2d at ___ ("While statutes that '[d]o not indicate upon whose sensitivity a violation . . . depend[s]' are likely to run afoul of the vagueness doctrine, a restriction banning only 'what men of common intelligence would understand would be words likely to cause [harm]' is less objectionable.") (quoting Coates , 402 U.S. at 613 and n.3) (citations omitted).

___ S.W.2d at ___.

Id. at ___.

Id. at ___.

Id. at ___.

Id. at ___.

Tex. Disc. R. Prof. Cond. 3.06(d).

See, e.g., Hidalgo, Chambers & Co. v. F.D.I.C. , 790 S.W.2d 700, 702 (Tex. App. -- Waco 1990, writ denied).

See ___ S.W.2d at ___ (citing cases for the proposition that "we are bound to construe [a word] to avoid constitutional infirmity if possible"); see also, e.g., Barshop v. Medina County Underground Water Conservation Dist. , 925 S.W.2d 618, 629 (Tex. 1996); Texas State Bd. of Barber Exam'rs v. Beaumont Barber College, Inc. , 454 S.W.2d 729, 732 (Tex. 1970).