                                                                            [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                         ________________________________

                                    No. 96-9116
                         ________________________________

                          D.C. Docket No. 4:95-CV-321-HLM


JIM WILSON, individually and on behalf of
all persons similarly situated, ROBERT K.
FINNELL, KENNETH C. FULLER,
KENNETH J. RAJOTTE, individually and on
behalf of all persons similarly situated,

                                                Plaintiffs-Appellants,
      versus

STATE BAR OF GEORGIA,

                                                Defendant-Appellee,

FORREST L. CHAMPION, JR.,

                                                Amicus.

_________________________________________________________________

                  Appeal from the United States District Court
                      for the Northern District of Georgia
_________________________________________________________________

                                   (January 16, 1998)

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST*, Senior
District Judge.

________________________
*Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.
HATCHETT, Chief Judge:

          Appellants brought this lawsuit pursuant to 42 U.S.C. § 1983 claiming that two of

the Rules and Regulations for the Organization and Government of the State Bar of

Georgia, Standard 73 to Rule 4-102(d) and Rule 4-219(c)(2), constitute impermissible

bills of attainder, abridge their First Amendment rights, and are void for vagueness under

the Due Process Clause of the Fourteenth Amendment. The district court granted

summary judgment for appellee State Bar of Georgia (“the State Bar”), and appellants

now challenge the court’s rulings as to their First and Fourteenth Amendment claims. We

affirm.

                                     I. BACKGROUND

          The Rules and Regulations for the Organization and Government of the State Bar

of Georgia govern the conduct of lawyers in that state. The Georgia Supreme Court

adopts and amends the rules and regulations upon recommendation of the State Bar, and

the State Bar enforces them. See, e.g., O.C.G.A. §§ 15-19-30-31, 33-34 (1994); Rules &

Regulations for the Org. & Gov’t of the State Bar of Ga. (“State Bar Rules &

Regulations”), Rule 4-101 (1996). On September 14, 1995, the Georgia Supreme Court,

acting in response to a motion the State Bar filed in 1992, adopted two related

amendments to the rules and regulations. These amendments went into effect on October

15, 1995. The first, Standard 73 to Rule 4-102(d), provides:

          A lawyer shall not allow any person who has been suspended or disbarred
          under Part IV of these Rules and who maintains a presence in an office
          where the practice of law is conducted by the lawyer, to:

                                               2
      (a) represent himself or herself as a lawyer or person with similar status;

      (b) have any contact with the clients of the lawyer either in person, by
      telephone, or in writing; or

      (c) have any contact with persons who have legal dealings with the office
      either in person, by telephone, or in writing.

      A violation of this Standard may be punished by disbarment.

State Bar Rules & Regulations, Rule 4-102(d), Standard 73 (emphasis added to language

under challenge). The second, Rule 4-219(c)(2), states in relevant part:

      (c)(2) After a final judgment of disbarment or suspension under Part IV of
      these Rules, . . . the respondent [the suspended or disbarred lawyer] shall
      take such action necessary to cause the removal of any indicia of the
      respondent as a lawyer, legal assistant, legal clerk or person with similar
      status. In the event the respondent should maintain a presence in an office
      where the practice of law is conducted, the respondent shall not:

      (i) have any contact with the clients of the office either in person, by
      telephone, or in writing; or

      (ii) have any contact with persons who have legal dealings with the office
      either in person, by telephone, or in writing.

State Bar Rules & Regulations, Rule 4-219(c)(2) (emphasis added to language under

challenge).

      In its brief submitted in August 1992 in support of the adoption of these

amendments, the State Bar represented to the Georgia Supreme Court that “[t]he

continued practice of law by disbarred lawyers in this State aided by members of the Bar




                                             3
is an all too frequent occur[re]nce.” The State Bar contended that such illicit activity was

difficult to regulate and prosecute. Thus, according to the State Bar,

       strict prohibition from client contact is absolutely essential to prevent a
       former lawyer from crossing the line from permissible paralegal activities
       to giving legal advice, taking fees and misleading the client. Not only does
       the client suffer under this scenario but the disciplinary system loses
       credibility because of its inability to effectively protect the public from
       unethical attorneys even after their disbarment.

The State Bar asserted that several jurisdictions had more stringent restrictions

concerning the activities of suspended or disbarred lawyers. It also stated that the

amendments

       do not prevent the disbarred lawyer from performing such law-related tasks
       as legal research and drafting. The [amendments] do not restrict the
       disciplined lawyer from other types of employment. They are narrowly
       drawn to insulate the person who has been disbarred from contact with the
       public with respect to legal matters.

(Emphasis added.)

       Appellants fall into two classes: (1) “all suspended or disbarred attorneys who are

currently employed by lawyers practicing in the State of Georgia” (hereinafter “disbarred

attorneys”); and (2) “all practicing attorneys who currently employ or wish to employ the

services of suspended or disbarred attorneys in their law offices in the State of Georgia”

(hereinafter “employing attorneys”). On October 12, 1995, in an attempt to enjoin the

State Bar from enforcing the amendments, appellants filed a motion for a temporary




                                             4
restraining order and preliminary injunction.1 The primary argument appellants asserted

in support of their motion was that the amendments constituted improper bills of

attainder. Appellants also argued that the amendments, as written, chilled protected

expression and were unduly vague. After conducting a hearing the following day, the

district court denied the motion, concluding that appellants had failed to demonstrate

irreparable harm. The court, however, expressed “a possible concern as to the broadness

of certain language” in the amendments.

       On November 20, 1995, the State Bar filed a motion for reconsideration and

clarification in the Georgia Supreme Court, requesting the addition of proposed clarifying

language to the amendments. It appears that the district court’s comments at the October

13 hearing, as well as the fact that the State Bar had “received some telephone inquiries

from bar members regarding activities which may be prohibited by these new rules,”

precipitated the State Bar’s motion. The State Bar proposed that Standard 73 be revised

as follows:

       A lawyer shall not allow any person who has been suspended or disbarred
       under Part IV of these Rules and who maintains a presence in an office
       where the practice of law is conducted by the lawyer, to engage in the
       following conduct:

       (a) represent himself or herself as a lawyer or person with similar status;



       1
        Around this time, Kenneth Rajotte, Jim Wilson and Dunham McAllister also filed
a motion requesting the Georgia Supreme Court to reconsider its adoption of the
amendments. The court denied the motion on October 31, 1995. Rajotte and Wilson are
two of the appellants in the present action.

                                             5
      (b) have any contact with the clients of the lawyer either in person, by
      telephone, or in writing; or

      (c) have any contact with persons, including but not limited to opposing
      parties, lawyers, witnesses, and insurance personnel, who have legal
      dealings with the office either in person, by telephone, or in writing.

      This Standard shall not be construed in such a manner as to require the
      lawyer to prohibit the disbarred or suspended lawyer from:

      (1) engaging in social conversation unrelated to the representation or legal
      dealings of the lawyer’s office; or

      (2) gathering general information in the course of working in the lawyer’s
      office which would involve limited contact with suppliers of information
      such as law librarians, the Secretary of State, and clerks’ offices.

      A violation of this Standard may be punished by disbarment.

The State Bar proposed like changes to Rule 4-219(c)(2):

      (c)(2) After a final judgment of disbarment or suspension under Part IV of
      these Rules, . . . the respondent shall take such action necessary to cause the
      removal of any indicia of the respondent as a lawyer, legal assistant, legal
      clerk or person with similar status. In the event the respondent should
      maintain a presence in an office where the practice of law is conducted, the
      respondent shall not:

      (i) have any contact with the clients of the office either in person, by
      telephone, or in writing; or

      (ii) have any contact with persons, including but not limited to opposing
      parties, lawyers, witnesses, and insurance personnel, who have legal
      dealings with the office either in person, by telephone, or in writing.

      This Rule shall not be construed in such a manner as to prohibit the
      disbarred lawyer from:

      (i) engaging in social conversation unrelated to the representation of clients
      or legal dealings of the law office; or


                                             6
       (ii) gathering general information in the course of working in a law office
       which would involve limited contact with suppliers of information such as
       law librarians, the Secretary of State, and clerks’ offices.

The State Bar asserted in its motion that “[t]his proposal does not represent a change in

the substance of the rules as approved by this Court . . . . It is offered as an attempt to

clarify the rules and as an aid to bar members who may wish to employ disbarred or

suspended lawyers in a limited capacity.” The Georgia Supreme Court summarily denied

the motion.

       On January 8, 1996, the Georgia Supreme Court addressed Standard 73 in In re

Thomson, 464 S.E.2d 818 (Ga. 1996) (per curiam). The court framed the issue before it

as follows: “The issue in this disciplinary case is whether during his suspension,

Thomson should be subject to Standard 73, which prohibits a lawyer from allowing a

suspended or disbarred attorney in his employ to have substantial client contact.” 464

S.E.2d at 819 (emphasis added). In refusing to grant Thomson an exemption from

Standard 73, the court wrote:

              Thomson requests that he be exempted from Standard 73. He states
       that he works in a high volume consumer bankruptcy practice under the
       supervision of other lawyers; he screens new business calls and trains and
       monitors younger lawyers and paralegals; and Standard 73 will prevent him
       from performing any of the duties because they all involve client
       contact. . . .

              If Thomson is granted an exception, this will effectively eviscerate
       Standard 73. Thomson’s proposed professional activities -- initial phone
       contact with potential clients and supervising young lawyers’ client
       contacts -- are inappropriate for a lawyer under suspension for any violation
       because of the difficulty in preventing the unauthorized practice of law in


                                               7
       that setting by the suspended lawyer. Although Thomson claims he will be
       unemployable in the bankruptcy area during his suspension, we do not read
       Standard 73 so broadly. Thomson may still conduct legal research and
       draft memoranda or correspondence for the lawyers in the firm.

464 S.E.2d at 819 (emphasis added).

       Appellants’ claims in the district court were broken out as follows. First, the

disbarred attorneys argued that the amendments chilled their protected speech in violation

of the First Amendment. Next, both classes of appellants asserted that the amendments

were void for vagueness and constituted punitive bills of attainder. The parties moved

for summary judgment, and on August 21, 1996, the district court granted the State Bar’s

motion.2 The court first held that the disbarred attorneys “lack standing [under the First

Amendment] because it is unreasonable for them to believe that [in order to avoid

disciplinary sanction] they must forego the, primarily hypothetical, protected speech

raised by their pleadings.” (Footnote omitted.) Second, the court rejected appellants’

void for vagueness argument, holding that (1) “attorneys of reasonable intelligence, both

practicing and disbarred, can derive a core meaning from the [amendments],” and (2)

“Plaintiffs can clarify their uncertainty about the [amendments] by posing questions to

the State Bar . . . and by reading the State Bar’s Motion For Reconsideration and

Clarification.” Finally, the court disposed of appellants’ bill of attainder challenge on




       The court had previously denied Forrest Champion, Jr.'s motion for leave to file
       2

an amicus brief.

                                              8
several grounds. On appeal, appellants challenge only the district court’s holdings as to

their First and Fourteenth Amendment claims.

                                        II. ISSUES

       This appeal presents two issues: (1) whether the district court erred in holding that

appellants lack standing to mount a pre-enforcement First Amendment challenge to

Standard 73 and Rule 4-219(c)(2); and (2) whether the district court erred in holding that

these provisions are not void for vagueness.

                            III. STANDARDS OF REVIEW

       Whether appellants have standing to bring suit constitutes a legal issue subject to

de novo review. Jacobs v. The Florida Bar, 50 F.3d 901, 903 (11th Cir. 1995). “When

the attack on standing occurs via a motion for summary judgment, the plaintiffs can no

longer rest on their allegations, but must set forth by affidavit or other evidence specific

facts which for the purpose of summary judgment will be taken as true.” Region 8 Forest

Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993) (internal

quotation marks omitted), cert. denied, 510 U.S. 1040 (1994). In this context, we

evaluate standing “from all materials of record.” E.F. Hutton & Co. v. Hadley, 901 F.2d

979, 983 (11th Cir. 1990) (internal quotation marks omitted).

       “Whether a statute, regulation, or local ordinance is unconstitutionally vague is a

question of law that we review de novo.” Dodger’s Bar & Grill, Inc. v. Johnson County

Bd. of County Comm’rs, 32 F.3d 1436, 1443 (10th Cir. 1994); see also San Filippo v.



                                               9
Bongiovanni, 961 F.2d 1125, 1133 (3d Cir.) (“The district court's application of the void

for vagueness doctrine . . . is purely an issue of law subject to our plenary review.”), cert.

denied, 506 U.S. 908 (1992).

                                     IV. DISCUSSION

                                               A.

         “Standing represents a jurisdictional requirement which remains open to review at

all stages of the litigation.” National Org. for Women, Inc. v. Scheidler, 510 U.S. 249,

255 (1994). The constitutional core of standing contains three elements. The party

invoking federal court authority must show that (1) he or she has personally suffered

some actual or threatened injury as a result of the putatively illegal conduct of the

defendant; (2) the injury can fairly be traced to that conduct; and (3) a favorable decision

is likely to redress the injury. Valley Forge Christian College v. Americans United for

Separation of Church and State, 454 U.S. 464, 472 (1982). Whether the disbarred

attorneys possess standing to sue in this case hinges on the first element, that is, the

existence of an actual or threatened injury. This inquiry is necessarily case-specific.

New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir.

1996).

         The disbarred attorneys contend that the provisions at issue chill their protected

speech because they bar “all speech or ‘contacts’ with all members of the designated

groups, under any circumstances, at any time, at any place, and for any reason.” So, for



                                              10
example, the disbarred attorneys claim they face sanction if they associate socially with

family members or close friends who also happen to be clients of their employers.

Likewise, they argue that the amendments “prohibit a disbarred lawyer/employee from

speaking on any subject with his doctor, his barber, his auto mechanic, anyone and

everyone who is a client of the law firm employer or who has legal dealings with the

employer.”3 Appellants imply through affidavit evidence that one unnamed disbarred

attorney has forgone constitutionally protected speech due to the existence of the

amendments. The employer of that disbarred attorney averred: “I am presently working

on the campaign of a judge. Although the disbarred attorney who works for me

personally knows the judge, and would like to be involved in the political campaign in

support of the judge . . . , he is reluctant to do so for fear that he might inadvertently fall

afoul of the prohibitions on ‘contact’ contained in the [amended] bar rules.”

       In the First-Amendment realm, plaintiffs do not have to expose themselves to

enforcement in order to challenge a law. Jacobs, 50 F.3d at 904. Rather, “an actual

injury can exist when the plaintiff is chilled from exercising her right to free expression

or forgoes expression in order to avoid enforcement consequences.” New Hampshire

Right to Life, 99 F.3d at 13. In such an instance, which is what is alleged here, the injury



       3
         The record reveals that a disbarred attorney faces two possible forms of
disciplinary action from the State Bar for violating the amendments. First, the State Bar
can refer the disbarred attorney to a state solicitor for prosecution. Second, it can place a
disciplinary report in the disbarred attorney’s reinstatement file, presumably reducing the
disbarred attorney’s chances of again becoming eligible to practice law.

                                               11
is self-censorship. See ACLU v. The Florida Bar, 999 F.2d 1486, 1492 (11th Cir. 1993).

When a plaintiff brings a pre-enforcement challenge to a sanctioning statute, regulation

or ordinance, standing exists at the summary judgment stage when the plaintiff has

submitted evidence indicating “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.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S.

289, 298 (1979) (emphasis added); see also Graham v. Butterworth, 5 F.3d 496, 499

(11th Cir. 1993); ACLU, 999 F.2d at 1492 (“Under Babbitt, a plaintiff must allege that

either (1) he was threatened with prosecution; (2) prosecution is likely; or (3) there is a

credible threat of prosecution.”). “[I]f no credible threat of prosecution looms, the chill is

insufficient to sustain the burden that Article III imposes. A party’s subjective fear that

she may be prosecuted for engaging in expressive activity will not be held to constitute

an injury for standing purposes unless that fear is objectively reasonable.” New

Hampshire Right to Life, 99 F.3d at 14; see also ACLU, 999 F.2d at 1492 & n.13. While

we agree with the First Circuit’s admonition that the credible threat of prosecution

standard “is quite forgiving,” New Hampshire Right to Life, 99 F.3d at 14, we hold that

the disbarred attorneys have failed to meet it in this case.

       The disbarred attorneys practically concede this issue in their brief to this court,

acknowledging that “there was no evidence regarding specific threats or actions as of the

date of the District Court’s Order whereby the State Bar had attempted to enforce the



                                              12
Amended Rules against a disbarred attorney for engaging in protected speech.”

(Emphasis omitted.) Moreover, the record indicates that the State Bar has repeatedly and

consistently taken the position that the amendments have no application to the types of

scenarios the disbarred attorneys have posed. “Because [the disbarred attorneys’] alleged

injury is one of self-censorship, the likelihood of disciplinary action by the Bar . . . is an

important factor in determining whether [they] reasonably believed that [they] had to

forego what [they] considered to be constitutionally protected speech in order to avoid

disciplinary charges being brought against [them].” ACLU, 999 F.2d at 1492.

       The State Bar’s motion in support of the amendments made clear that the

provisions were “drawn to insulate the person who has been disbarred from contact with

the public with respect to legal matters.” In addition, the State Bar’s motion for

reconsideration and clarification stated that Standard 73 applied to professional

“conduct.” As to both amendments, the motion for reconsideration further defined

“persons” as “including but not limited to opposing parties, lawyers, witnesses, and

insurance personnel.” It also asserted that Rule 4-219(c)(2) did not apply to “social

conversation unrelated to the representation of clients or legal dealings of the law office,”

or to the “gathering [of] general information in the course of working in a law office.”4


       4
         Appellants argue that they can take no comfort in the motion for reconsideration
because the Georgia Supreme Court denied it. We find this contention meritless. It is the
State Bar, after all, that is the defendant in this case. And, the State Bar expressed the
view in its motion that its proposed revisions did “not represent a change in the substance
of the rules as approved by th[e] Court.” Indeed, this may be the very reason the Georgia
Supreme Court denied the motion -- at least, the In re Thomson decision would so

                                              13
Furthermore, the State Bar has informed disbarred attorneys, upon request, about whether

it will sanction them for engaging in certain practices. The record supports the district

court’s finding that the State Bar “has assisted concerned attorneys with questions

regarding” the contours of the amendments. Finally, in its pleadings in the district court

and in its submission to this court, the State Bar has consistently maintained that it will

not sanction disbarred attorneys for engaging in political, religious or social speech.

       In sum, the disbarred attorneys’ asserted belief that they have to forego the

constitutionally protected speech they pose in order to avoid sanctions under the

amendments is not objectively reasonable. Accordingly, they have failed to show injury,

and thus they lack standing to bring this anticipatory challenge.

                                             B.

       “Vagueness arises when a statute is so unclear as to what conduct is applicable

that persons ‘of common intelligence must necessarily guess at its meaning and differ as

to its application.’” United States v. Gilbert, No. 96-9336, slip op. at 956 (11th Cir. Dec.

15, 1997) (quoting Connally v. General Contr. Co., 269 U.S. 385, 391 (1926)). When

addressing a facial challenge to a law on vagueness grounds, “a court’s first task is to

determine whether the enactment reaches a substantial amount of constitutionally

protected conduct.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 494 (1982). In making this determination, we must consider the In re Thomson



indicate.

                                             14
court’s statements concerning Standard 73. See Village of Hoffman Estates, 455 U.S. at

494 n.5 (when evaluating the purported vagueness of a state law or regulation, “a federal

court must, of course, consider any limiting construction that a state court . . . has

proffered”). As discussed, the Georgia Supreme Court stated that Standard 73 “prohibits

a lawyer from allowing a suspended or disbarred attorney in his employ to have

substantial client contact.” In re Thomson, 464 S.E.2d at 819 (emphasis added). The

court also rejected Thomson’s “proposed professional activities” -- making initial

telephone contact with potential clients and supervising young lawyers’ client contacts --

because they implicated “the difficulty in preventing the unauthorized practice of law in

[a law office] by the suspended lawyer.” In re Thomson, 464 S.E.2d at 819. We have

little difficulty agreeing with the district court’s conclusion that the amendments govern

occupational conduct, and not a substantial amount of protected speech. “Any

abridgement of the right to free speech is merely the incidental effect of observing an

otherwise legitimate [occupational] regulation.” Lawline v. American Bar Ass’n, 956

F.2d 1378, 1386 (7th Cir. 1992).

       “A rule that does not reach constitutionally protected conduct is void for

vagueness only if it is impermissibly vague in all its applications.” Woodruff v. United

States Dep't of Labor, 954 F.2d 634, 643 (11th Cir. 1992) (per curiam). We are mindful

that “[t]he particular context in which a regulation is promulgated . . . is all important.”

Howell v. State Bar of Tex., 843 F.2d 205, 208 (5th Cir.), cert. denied, 488 U.S. 982



                                              15
(1988). Consequently, if lawyers or former lawyers of reasonable intelligence can derive

a core meaning from the amendments, then the amendments “may validly be applied to

conduct within that meaning and the possibility of a valid application necessarily

precludes facial invalidity.” High Ol’ Times v. Busbee, 673 F.2d 1225, 1228 (11th Cir.

1982); see also Woodruff, 954 F.2d at 643 (“The test is whether the enactment is

substantially incomprehensible.”).

       In rejecting appellants’ vagueness claim, the district court pointed out that the

amendments would obviously preclude a disbarred attorney who reports to work at a

practicing lawyer’s office on a regular basis from (1) arguing a legal matter before a

judge, or (2) negotiating a settlement agreement with opposing counsel. The district

court also noted that disbarred or employing attorneys in need of guidance concerning the

amendments can present questions to the State Bar and study the motion for

reconsideration and clarification. See State Bar Rules & Regulations, Rules 4-401

(Informal Advisory Opinions), 4-403 (Formal Advisory Opinions). We agree with the

district court’s analysis and need go no further, as we are confident that appellants can

derive a core meaning from the amendments.

                                     V. CONCLUSION

       For the foregoing reasons, we affirm the district court's judgment.

                                       AFFIRMED.




                                             16
