The Pressure to Advertise
There is about one US lawyer for every 350 Americans, and competition for new business among lawyers and law firms and between the legal profession, on one hand, and the US accounting firms and other law-related professional groups (paralegal personnel, legal assistants, real estate brokers, customs brokers, non-lawyer notaries public, private investigators, bankers, financial advisors, securities dealers, etc.), on the other, has become very tough.
(See: Harry J. Haysworth, Marketing and Legal Ethics: The Rules and Risks, Chicago, Illinois: American Bar Association [ABA] Section of Law Practice Management, 1990 ed., Foreword, p. IX-X).
Since the Bates decision of the US Supreme Court, (Bates, et. al vs. State bar of Arizona, 443 U.S. 350 (1977), which affirmed the right of US lawyers and law firms to advertise their legal services through the mass media and through other forms of professional advertising methods as part of their constitutional freedom of commercial speech, and within certain ethical limits, the pressure for US lawyers to get out there and sell has been increasing steadily. (id.).
According to Dean Harry J. Haysworth of the School of Law of the Southern Illinois University: “Whether legal services can be sold like high-tech detergent remains to seen, although early indications appear to the contrary. The rules are changing constantly and that if we are to undertake the >marketing= of our practice, we must be careful to examine closely the ethics rules and decisions of the courts in our local jurisdiction. Even if our local rules are more restrictive than what is constitutionally permissible, to violate local rules is to invite trouble”. (id.).
American lawyers and law firms may be generally classified as consumer-oriented or establishment law firms (the latter usually representing big business, government institutions, and wealthy individuals). [id., p. 2).
Media advertising in the US is expensive and generally has been used by lawyers who represent lower- and middle-class individuals in various types of relatively routine legal services, such as simple wills, uncontested divorces and bankruptcies. (id.).
For most part, before the Bates decision 1977, the common marketing practice of US lawyers consisted of involvement in community and social activities and the following were considered undignified and unprofessional by most lawyers: media advertising, direct mails, press releases, news articles, law firm newsletter, and brochures. (id.). Law firm marketing is also called law practice development activities or client development activities.
At present, many law firm marketing consultants operate in the US, the most prominent among them being Hildebrant Inc., a nationally prominent law office management consulting company in the US with a huge law firm marketing group.
As a general rule, though, state courts, state bar disciplinary authorities, and state ethics committees have been conservative in their attitudes toward construing the Supreme Court ruling in Bates. (id., p. 4).
US Supreme Court Allows Lawyer Advertising
As Part of Freedom of Commercial Speech of Lawyers:
Bates, et. al vs. State bar of Arizona, 443 U.S. 350 (1977)
The landmark American decision Bates, et. al. vs. State bar of Arizona, 443 U.S. 350 (1977) may be summarized as follows:
Appellants, who were licensed attorneys and members of the Arizona State Bar, were charged in a complaint filed by the State Bar's president with violating the State Supreme Court's disciplinary rule, which prohibits attorneys from advertising in newspapers or other media.
The complaint was based upon a newspaper advertisement placed by appellants for their "legal clinic," stating that they were offering "legal services at very reasonable fees," and listing their fees for certain services, namely, uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name.
The Arizona Supreme Court upheld the conclusion of a bar committee that appellants had violated the rule, having rejected appellants' claims that the rule violated 1 and 2 of the Sherman Act because of its tendency to limit competition and that it infringed appellants' First Amendment rights (freedom of speech).
The US Supreme Court ruled as follows:
1. The restraint upon attorney advertising imposed by the Supreme Court of Arizona wielding the power of the State over the practice of law is not subject to attack under the Sherman Act. Parker v. Brown, 317 U.S. 341; Goldfarb v. Virginia State Bar, 421 U.S. 773 ; Cantor v. Detroit Edison Co., 428 U.S. 579;
2. Commercial speech, which serves individual and societal interests in assuring informed and reliable decision-making, is entitled to some First Amendment protection, Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, and the justifications advanced by appellee are inadequate to support the suppression of all advertising by attorneys.
(a) This case does not involve any question concerning in-person solicitation or advertising as to the quality of legal services, but only the question whether lawyers may constitutionally advertise the prices at which certain routine services will be performed.
(b) The belief that lawyers are somehow above "trade" is an anachronism, and for a lawyer to advertise his fees will not undermine true professionalism.
(c) Advertising legal services is not inherently misleading. Only routine services lend themselves to advertising, and for such services fixed rates can be meaningfully established, as the Arizona State Bar's own Legal Services Program demonstrates. Although a client may not know the detail involved in a given task, he can identify the service at the level of generality to which advertising lends itself. Though advertising does not provide a complete foundation on which to select an attorney, it would be peculiar to deny the consumer at least some of the relevant information needed for an informed decision on the ground that the information was not complete.
(d) Advertising, the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange, may well benefit the administration of justice.
(e) It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer, and may well aid new attorneys in entering the market.
(f) An attorney who is inclined to cut quality will do so regardless of the rule on advertising, the restraints on which are an ineffective deterrent to shoddy work. p. 378-379.
(g) Undue enforcement problems need not be anticipated, and it is at least incongruous for the opponents of advertising to extol the virtues of the legal profession while also asserting that through advertising lawyers will mislead their clients.
3. The First Amendment overbreadth doctrine, which represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court, is inapplicable to professional advertising, a context where it is not necessary to further its intended objective, cf. Bigelow v. Virginia, 421 U.S. 809, 817 -818, and appellants must therefore demonstrate that their specific conduct was constitutionally protected.
4. On this record, appellants' advertisement (contrary to appellee's contention) is not misleading and falls within the scope of First Amendment protection.
(a) The term "legal clinic" would be understood to refer to an operation like appellants' that is geared to provide standardized and multiple services.
(b) The advertisement's claim that appellants offer services at "very reasonable" prices is not misleading. Appellants' advertised fee for an uncontested divorce, which was specifically cited by appellee, is in line with customary charges in the area.
(c) Appellants' failure to disclose that a name change might be accomplished by the client without an attorney's aid was not misleading since the difficulty of performing the task is not revealed and since most legal services may be performed legally by the citizen for himself. See Faretta v. California, 422 U.S. 806 .
The full text of the majority decision in Bates is extensively reproduced below in view of the importance of thereof, to wit:
I.
Appellants John R. Bates and Van O'Steen are attorneys licensed to practice law in the State of Arizona. As such, they are members of the appellee, the State Bar of Arizona. After admission to the bar in 1972, appellants worked as attorneys with the Maricopa County Legal Aid Society.
In March 1974, appellants left the Society and opened a law office, which they call a "legal clinic," in Phoenix. Their aim was to provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid. In order to achieve this end, they would accept only routine matters, such as uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name, for which costs could be kept down by extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures. More complicated cases, such as contested divorces, would not be accepted. Because appellants set their prices so as to have a relatively low return on each case they handled, they depended on substantial volume.
After conducting their practice in this manner for two years, appellants concluded that their practice and clinical concept could not survive unless the availability of legal services at low cost was advertised and, in particular, fees were advertised. Consequently, in order to generate the necessary flow of business, that is, "to attract clients," appellants on February 22, 1976, placed an advertisement (reproduced in the Appendix to this opinion, infra, at 385) in the Arizona Republic, a daily newspaper of general circulation in the Phoenix metropolitan area. As may be seen, the advertisement stated that appellants were offering "legal services at very reasonable fees," and listed their fees for certain services.
Appellants concede that the advertisement constituted a clear violation of Disciplinary Rule 2-101 (B), incorporated in Rule 29 (a) of the Supreme Court of Arizona, 17A Ariz. Rev. Stat., p. 26 (Supp. 1976). The disciplinary rule provides in part:
"(B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf."
Upon the filing of a complaint initiated by the president of the State Bar, App. 350, a hearing was held before a three-member Special Local Administrative Committee, as prescribed by Arizona Supreme Court Rule 33. Although the committee took the position that it could not consider an attack on the validity of the rule, it allowed the parties to develop a record on which such a challenge could be based. The committee recommended that each of the appellants be suspended from the practice of law for not less than six months. Upon further review by the Board of Governors of the State Bar, pursuant to the Supreme Court's Rule 36, the Board recommended only a one-week suspension for each appellant, the weeks to run consecutively.
Appellants, as permitted by the Supreme Court's Rule 37, then sought review in the Supreme Court of Arizona, arguing, among other things, that the disciplinary rule violated 1 and 2 of the Sherman Act because of its tendency to limit competition, and that the rule infringed their First Amendment rights. The court rejected both claims. In re Bates, 113 Ariz. 394, 555 P.2d 640 (1976). The plurality may have viewed with some skepticism the claim that a restraint on advertising might have an adverse effect on competition. 7 But, even if the rule might otherwise violate the Act, the plurality concluded that the regulation was exempt from Sherman Act attack because the rule "is an activity of the State of Arizona acting as sovereign." The regulation thus was held to be shielded from the Sherman Act by the state-action exemption of Parker v. Brown, 317 U.S. 341 (1943).
Turning to the First Amendment issue, the plurality noted that restrictions
on professional advertising have survived constitutional challenge in the past, citing, along with other cases, Williamson v. Lee Optical Co., 348 U.S. 483 (1955), and Semler v. Dental Examiners, 294 U.S. 608 (1935). Although recognizing that Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976), and Bigelow v. Virginia, 421 U.S. 809 (1975), held that commercial speech was entitled to certain protection under the First Amendment, the plurality focused on passages in those opinions acknowledging that special considerations might bear on the advertising of professional services by lawyers. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 773 n. 25; id., at 773-775 (concurring opinion); Bigelow v. Virginia, 421 U.S., at 825 n. 10. The plurality apparently was of the view that the older decisions dealing with professional advertising survived these recent cases unscathed, and held that Disciplinary Rule 2-101 (B) passed First Amendment muster. Because the court, in agreement with the Board of Governors, felt that appellants' advertising "was done in good faith to test the constitutionality of DR 2-101 (B)," it reduced the sanction to censure only.
Of particular interest here is the opinion of Mr. Justice Holohan in dissent. In his view, the case should have been framed in terms of "the right of the public as consumers and citizens to know about the activities of the legal profession," rather than as one involving merely the regulation of a profession. Observed in this light, he felt that the rule performed a substantial disservice to the public:
"Obviously the information of what lawyers charge is important for private economic decisions by those in need of legal services. Such information is also helpful, perhaps indispensable, to the formation of an intelligent opinion by the public on how well the legal system is working and whether it should be regulated or even altered. . . . The rule at issue prevents access to such information by the public."
Although the dissenter acknowledged that some types of advertising might cause confusion and deception, he felt that the remedy was to ban that form, rather than all advertising. Thus, despite his "personal dislike of the concept of advertising by attorneys," he found the ban unconstitutional.
We noted probable jurisdiction.
II
The Sherman Act
In Parker v. Brown, 317 U.S. 341 (1943), this Court held that the Sherman Act was not intended to apply against certain state action. See also Olsen v. Smith, 195 U.S. 332, 344 -345 (1904). In Parker a raisin producer-packer brought suit against California officials challenging a state program designed to restrict competition among growers and thereby to maintain prices in the raisin market. The Court held that the State, "as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." 317 U.S., at 352 . Appellee argues, and the Arizona Supreme Court held, that the Parker exemption also bars the instant Sherman Act claim. We agree.
Of course, Parker v. Brown has not been the final word on the matter. In two recent cases the Court has considered the state-action exemption to the Sherman Act and found it inapplicable for one reason or another. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975); Cantor v. Detroit Edison Co., 428 U.S. 579 (1976). Goldfarb and Cantor, however, are distinguishable, and their reasoning supports our conclusion here.
In Goldfarb we held that 1 of the Sherman Act was violated by the publication of a minimum-fee schedule by a county bar association and by its enforcement by the State Bar. The schedule and its enforcement mechanism operated to create a rigid price floor for services and thus constituted a classic example of price fixing. Both bar associations argued that their activity was shielded by the state-action exemption. This Court concluded that the action was not protected, emphasizing that "we need not inquire further into the state-action question because it cannot fairly be said that the State of Virginia through its Supreme Court Rules required the anticompetitive activities of either respondent." In the instant case, by contrast, the challenged restraint is the affirmative command of the Arizona Supreme Court under its Rules 27 (a) and 29 (a) and its Disciplinary Rule 2-101 (B). That court is the ultimate body wielding the State's power over the practice of law, see Ariz. Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is "compelled by direction of the State acting as a sovereign."
Appellants seek to draw solace from Cantor. The defendant in that case, an electric utility, distributed light bulbs to its residential customers without additional charge, including the cost in its state-regulated utility rates. The plaintiff, a retailer who sold light bulbs, brought suit, claiming that the utility was using its monopoly power in the distribution of electricity to restrain competition in the sale of bulbs. The Court held that the utility could not immunize itself from Sherman Act attack by embodying its challenged practices in a tariff approved by a state commission. Since the disciplinary rule at issue here is derived from the Code of Professional Responsibility of the American Bar Association, appellants argue by analogy to Cantor that no immunity should result from the bar's success in having the Code adopted by the State. They also assert that the interest embodied in the Sherman Act must prevail over the state interest in regulating the bar. Particularly is this the case, they claim, because the advertising ban is not tailored so as to intrude upon the federal interest to the minimum extent necessary.
We believe, however, that the context in which Cantor arose is critical. First, and most obviously, Cantor would have been an entirely different case if the claim had been directed against a public official or public agency, rather than against a private party. Here, the appellants' claims are against the State. The Arizona Supreme Court is the real party in interest; it adopted the rules, and it is the ultimate trier of fact and law in the enforcement process. In re Wilson, 106 Ariz. 34, 470 P.2d 441 (1970). Although the State Bar plays a part in the enforcement of the rules, its role is completely defined by the court; the appellee acts as the agent of the court under its continuous supervision.
Second, the Court emphasized in Cantor that the State had no independent regulatory interest in the market for light bulbs. There was no suggestion that the bulb program was justified by flaws in the competitive market or was a response to health or safety concerns. And an exemption for the program was not essential to the State's regulation of electric utilities. In contrast, the regulation of the activities of the bar is at the core of the State's power to protect the public. Indeed, this Court in Goldfarb acknowledged that "[t]he interest of the States in regulating lawyers is especially great since lawyers are essential to the [433 U.S. 350, 362] primary governmental function of administering justice, and have historically been `officers of the courts.'" See Cohen v. Hurley, 366 U.S. 117, 123 -124 (1961). More specifically, controls over solicitation and advertising by attorneys have long been subject to the State's oversight. Federal interference with a State's traditional regulation of a profession is entirely unlike the intrusion the Court sanctioned in Cantor.
Finally, the light-bulb program in Cantor was instigated by the utility with only the acquiescence of the state regulatory commission. The State's incorporation of the program into the tariff reflected its conclusion that the utility was authorized to employ the practice if it so desired. The situation now before us is entirely different. The disciplinary rules reflect a clear articulation of the State's policy with regard to professional behavior. Moreover, as the instant case shows, the rules are subject to pointed re-examination by the policymaker - the Arizona Supreme Court - in enforcement proceedings. Our concern that federal policy is being unnecessarily and inappropriately subordinated to state policy is reduced in such a situation; we deem it significant that the state policy is so clearly and affirmatively expressed and that the State's supervision is so active.
We conclude that the Arizona Supreme Court's determination that appellants' Sherman Act claim is barred by the Parker v. Brown exemption must be affirmed.
III
The First Amendment
A
Last Term, in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976), the Court considered the validity under the First Amendment of a Virginia statute declaring that a pharmacist was guilty of "unprofessional conduct" if he advertised prescription drug prices. The pharmacist would then be subject to a monetary penalty or the suspension or revocation of his license. The statute thus effectively prevented the advertising of prescription drug price information. We recognized that the pharmacist who desired to advertise did not wish to report any particularly newsworthy fact or to comment on any cultural, philosophical, or political subject; his desired communication was characterized simply: "`I will sell you the X prescription drug at the Y price.'" Nonetheless, we held that commercial speech of that kind was entitled to the protection of the First Amendment.
Our analysis began, ibid., with the observation that our cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 U.S. 1 (1976); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); in a form that is sold for profit, Smith v. California, 361 U.S. 147 (1959); Murdock v. Pennsylvania, 319 U.S. 105 (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut, 310 U.S. 296 (1940). If commercial speech is to be distinguished, it "must be distinguished by its content." But a consideration of competing interests reinforced our view that such speech should not be withdrawn from protection merely because it proposed a mundane commercial transaction. Even though the speaker's interest is largely economic, the Court has protected such speech in certain contexts. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); Thornhill v. Alabama, 310 U.S. 88 (1940).
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. See Bigelow v. Virginia, 421 U.S. 809 (1975). 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. See FTC v. Procter & Gamble Co., 386 U.S. 568, 603 -604 (1967). In short, such speech serves individual and societal interests in assuring informed and reliable decision-making.
Arrayed against these substantial interests in the free flow of commercial speech were a number of proffered justifications for the advertising ban. Central among them were claims that the ban was essential to the maintenance of professionalism among licensed pharmacists. It was asserted that advertising would create price competition that might cause the pharmacist to economize at the customer's expense. He might reduce or eliminate the truly professional portions of his services: the maintenance and packaging of drugs so as to assure their effectiveness, and the supplementation on occasion of the prescribing physician's advice as to use. Moreover, it was said, advertising would cause consumers to price-shop, thereby undermining the pharmacist's effort to monitor the drug use of a regular customer so as to ensure that the prescribed drug would not provoke an allergic reaction or be incompatible with another substance the customer was consuming. Finally, it was argued that advertising would reduce the image of the pharmacist as a skilled and specialized craftsman - an image that was said to attract talent to the profession and to reinforce the good habits of those in it - to that of a mere shopkeeper.
Although acknowledging that the State had a strong interest in maintaining professionalism among pharmacists, this Court concluded that the proffered justifications were inadequate to support the advertising ban. High professional standards were assured in large part by the close regulation to which pharmacists in Virginia were subject. And we observed that "on close inspection it is seen that the State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance." But we noted the presence of a potent alternative to this "highly paternalistic" approach: "That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them." The choice between the dangers of suppressing information and the dangers arising from its free flow was seen as precisely the choice "that the First Amendment makes for us." See also Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 (1977).
We have set out this detailed summary of the Pharmacy opinion because the conclusion that Arizona's disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it. Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance. Because of the possibility, however, that the differences among professions might bring different constitutional considerations into play, we specifically reserved judgment as to other professions.
In the instant case we are confronted with the arguments directed explicitly toward the regulation of advertising by licensed attorneys.
B
The issue presently before us is a narrow one. First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false. Appellee does not suggest, nor do we perceive, that appellants' advertisement contained claims, extravagant or otherwise, as to the quality of services. Accordingly, we leave that issue for another day. Second, we also need not resolve the problems associated with in-person solicitation of clients - at the hospital room or the accident site, or in any other situation that breeds undue influence - by attorneys or their agents or "runners." Activity of that kind might well pose dangers of over-reaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue also is not before us. Third, we note that appellee's criticism of advertising by attorneys does not apply with much force to some of the basic factual content of advertising: information as to the attorney's name, address, and telephone number, office hours, and the like. The American Bar Association itself has a provision in its current Code of Professional Responsibility that would allow the disclosure of such information, and more, in the classified section of the telephone directory. DR 2-102 (A) (6) (1976). We recognize, however, that an advertising diet limited to such spartan fare would provide scant nourishment.
The heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which certain routine services will be performed. Numerous justifications are proffered for the restriction of such price advertising. We consider each in turn:
1. The Adverse Effect on Professionalism. Appellee places particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that price advertising will bring about commercialization, which will undermine the attorney's sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession's service orientation, and irreparably damage the delicate balance between the lawyer's need to earn and his obligation selflessly to serve. Advertising is also said to erode the client's trust in his attorney: Once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client's welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession.
We recognize, of course, and commend the spirit of public service with which the profession of law is practiced and to which it is dedicated. The present Members of this Court, licensed attorneys all, could not feel otherwise. And we would have reason to pause if we felt that our decision today would undercut that spirit. But we find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception. And rare is the client, moreover, even one of modest means, who enlists the aid of an attorney with the expectation that his services will be rendered free of charge. See B. Christensen, Lawyers for People of Moderate Means 152-153 (1970). In fact, the American Bar Association advises that an attorney should reach "a clear agreement with his client as to the basis of the fee charges to be made," and that this is to be done "[a]s soon as feasible after a lawyer has been employed." Code of Professional Responsibility EC 2-19 (1976). If the commercial basis of the relationship is to be promptly disclosed on ethical grounds, once the client is in the office, it seems inconsistent to condemn the candid revelation of the same information before he arrives at that office.
Moreover, the assertion that advertising will diminish the attorney's reputation in the community is open to question. Bankers and engineers advertise, and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. The absence of advertising may be seen to reflect the profession's failure to reach out and serve the community: Studies reveal that many persons do not obtain counsel even when they perceive a need because of the feared price of services or because of an inability to locate a competent attorney. Indeed, cynicism with regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients.
It appears that the ban on advertising originated as a rule of etiquette and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on "trade" as unseemly. See H. Drinker, Legal Ethics 5, 210-211 (1953). Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. But habit and tradition are not in themselves an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow "above" trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.
2. The Inherently Misleading Nature of Attorney Advertising. It is argued that advertising of legal services inevitably will be misleading (a) because such services are so individualized with regard to content and quality as to prevent informed comparison on the basis of an advertisement, (b) because the consumer of legal services is unable to determine in advance just what services he needs, and (c) because advertising by attorneys will highlight irrelevant factors and fail to show the relevant factor of skill.
We are not persuaded that restrained professional advertising by lawyers inevitably will be misleading. Although many services performed by attorneys are indeed unique, it is doubtful that any attorney would or could advertise fixed prices for services of that type. The only services that lend themselves to advertising are the routine ones: the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like - the very services advertised by appellants. Although the precise service demanded in each task may vary slightly, and although legal services are not fungible, these facts do not make advertising misleading so long as the attorney does the necessary work at the advertised price. The argument that legal services are so unique that fixed rates cannot meaningfully be established is refuted by the record in this case: The appellee State Bar itself sponsors a Legal Services Program in which the participating attorneys agree to perform services like those advertised by the appellants at standardized rates. Indeed, until the decision of this Court in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), the Maricopa County Bar Association apparently had a schedule of suggested minimum fees for standard legal tasks. We thus find of little force the assertion that advertising is misleading because of an inherent lack of standardization in legal services.
The second component of the argument - that advertising ignores the diagnostic role - fares little better. It is unlikely that many people go to an attorney merely to ascertain if they have a clean bill of legal health. Rather, attorneys are likely to be employed to perform specific tasks. Although the client may not know the detail involved in performing the task, he no doubt is able to identify the service he desires at the level of generality to which advertising lends itself.
The third component is not without merit: Advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision. The alternative - the prohibition of advertising - serves only to restrict the information that flows to consumers. Moreover, the argument assumes that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 769 -770. Although, of course, the bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, the preferred remedy is more disclosure, rather than less. If the naivete of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective.
3. The Adverse Effect on the Administration of Justice. Advertising is said to have the undesirable effect of stirring up litigation. The judicial machinery is designed to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling societal repose. There is even a suggestion of barratry. See, e. g., Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U. Chi. L. Rev. 674, 675-676 (1958).
But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits. Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action. As the bar acknowledges, "the middle 70% of our population is not being reached or served adequately by the legal profession." ABA, Revised Handbook on Prepaid Legal Services 2 (1972). Among the reasons for this under utilization is fear of the cost, and an inability to locate a suitable lawyer. Advertising can help to solve this acknowledged problem: Advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable. A rule allowing restrained advertising would be in accord with the bar's obligation to "facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available." ABA Code of Professional Responsibility EC 2-1 (1976).
4. The Undesirable Economic Effects of Advertising. It is claimed that advertising will increase the overhead costs of the profession, and that these costs then will be passed along to consumers in the form of increased fees. Moreover, it is claimed that the additional cost of practice will create a substantial entry barrier, deterring or preventing young attorneys from penetrating the market and entrenching the position of the bar's established members.
These two arguments seem dubious at best. Neither distinguishes lawyers from others, see Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 768 , and neither appears relevant to the First Amendment. The ban on advertising serves to increase the difficulty of discovering the lowest cost seller of acceptable ability. As a result, to this extent attorneys are isolated from competition, and the incentive to price competitively is reduced. Although it is true that the effect of advertising on the price of services has not been demonstrated, there is revealing evidence with regard to products; where consumers have the benefit of price advertising, retail prices often are dramatically lower than they would be without advertising. It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer.
The entry-barrier argument is equally unpersuasive. In the absence of advertising, an attorney must rely on his contacts with the community to generate a flow of business. In view of the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys. Consideration of entry-barrier problems would urge that advertising be allowed so as to aid the new competitor in penetrating the market.
5. The Adverse Effect of Advertising on the Quality of Service. It is argued that the attorney may advertise a given "package" of service at a set price, and will be inclined to provide, by indiscriminate use, the standard package regardless of whether it fits the client's needs.
Restraints on advertising, however, are an ineffective way of deterring shoddy work. An attorney who is inclined to cut quality will do so regardless of the rule on advertising. And the advertisement of a standardized fee does not necessarily mean that the services offered are undesirably standardized. Indeed, the assertion that an attorney who advertises a standard fee will cut quality is substantially undermined by the fixed-fee schedule of appellee's own prepaid Legal Services Program. Even if advertising leads to the creation of "legal clinics" like that of appellants' - clinics that emphasize standardized procedures for routine problems - it is possible that such clinics will improve service by reducing the likelihood of error.
6. The Difficulties of Enforcement. Finally, it is argued that the wholesale restriction is justified by the problems of enforcement if any other course is taken. Because the public lacks sophistication in legal matters, it may be particularly susceptible to misleading or deceptive advertising by lawyers. After-the-fact action by the consumer lured by such advertising may not provide a realistic restraint because of the inability of the layman to assess whether the service he has received meets professional standards. Thus, the vigilance of a regulatory agency will be required. But because of the numerous purveyors of services, the overseeing of advertising will be burdensome.
It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort. We suspect that, with advertising, most lawyers will behave as they always have: They will abide by their solemn oaths to uphold the integrity and honor of their profession and of the legal system. For every attorney who overreaches through advertising, there will be thousands of others who will be candid and honest and straightforward. And, of course, it will be in the latter's interest, as in other cases of misconduct at the bar, to assist in weeding out those few who abuse their trust.
In sum, we are not persuaded that any of the proffered justifications rise to the level of an acceptable reason for the suppression of all advertising by attorneys.
C
In the usual case involving a restraint on speech, a showing that the challenged rule served unconstitutionally to suppress [433 U.S. 350, 380] speech would end our analysis. In the First Amendment context, the Court has permitted attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected. See, e. g., Bigelow v. Virginia, 421 U.S., at 815 -816; Gooding v. Wilson, 405 U.S. 518, 521 -522 (1972); Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). Having shown that the disciplinary rule interferes with protected speech, appellants ordinarily could expect to benefit regardless of the nature of their acts.
The First Amendment overbreadth doctrine, however, represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court. See, e. g., Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); United States v. Raines, 362 U.S. 17, 21 (1960); Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). The reason for the special rule in First Amendment cases is apparent: An overbroad statute might serve to chill protected speech. First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute. See NAACP v. Button, 371 U.S. 415, 433 (1963). Indeed, such a person might choose not to speak because of uncertainty whether his claim of privilege would prevail if challenged. The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted.
But the justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context. As was acknowledged in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 771, there are "commonsense differences" between commercial speech and other varieties. Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by over broad regulation. Moreover, concerns for uncertainty in determining the scope of protection are reduced; the advertiser seeks to disseminate information about a product or service that he provides, and presumably he can determine more readily than others whether his speech is truthful and protected. Ibid. Since overbreadth has been described by this Court as "strong medicine," which "has been employed . . . sparingly and only as a last resort," Broadrick v. Oklahoma, 413 U.S., at 613, we decline to apply it to professional advertising, a context where it is not necessary to further its intended objective. Cf. Bigelow v. Virginia, 421 U.S., at 817 -818.
Is, then, appellants' advertisement outside the scope of basic First Amendment protection? Aside from general claims as to the undesirability of any advertising by attorneys, a matter considered above, appellee argues that appellants' advertisement is misleading, and hence unprotected, in three particulars: (a) the advertisement makes reference to a "legal clinic," an allegedly undefined term; (b) the advertisement claims that appellants offer services at "very reasonable" prices, and, at least with regard to an uncontested divorce, the advertised price is not a bargain; and (c) the advertisement does not inform the consumer that he may obtain a name change without the services of an attorney. On this record, these assertions are unpersuasive. We suspect that the public would readily understand the term "legal clinic" - if, indeed, it focused on the term at all - to refer to an operation like that of appellants' that is geared to provide standardized and multiple services. In fact, in his deposition the president of the State Bar of Arizona observed that there was a committee of the bar "exploring the ways in which the legal clinic concept can be properly developed." And the clinical concept in the sister profession of medicine surely by now is publicly acknowledged and understood.
As to the cost of an uncontested divorce, appellee's counsel stated at oral argument that this runs from $150 to $300 in the area. Appellants advertised a fee of $175 plus a $20 court filing fee, a rate that seems "very reasonable" in light of the customary charge. Appellee's own Legal Services Program sets the rate for an uncontested divorce at $250. Of course, advertising will permit the comparison of rates among competitors, thus revealing if the rates are reasonable.
As to the final argument - the failure to disclose that a name change might be accomplished by the client without the aid of an attorney - we need only note that most legal services may be performed legally by the citizen for himself. See Faretta v. California, 422 U.S. 806 (1975); ABA Code of Professional Responsibility EC 3-7 (1976). The record does not unambiguously reveal some of the relevant facts in determining whether the nondisclosure is misleading, such as how complicated the procedure is and whether the State provides assistance for laymen. The deposition of one appellant, however, reflects that when he ascertained that a name change required only the correction of a record or the like, he frequently would send the client to effect the change himself.
We conclude that it has not been demonstrated that the advertisement at issue could be suppressed.
IV
In holding that advertising by attorneys may not be subjected to blanket suppression, and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way. We mention some of the clearly permissible limitations on advertising not foreclosed by our holding.
Advertising that is false, deceptive, or misleading of course is subject to restraint. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 771 -772. Since the advertiser knows his product and has a commercial interest in its dissemination, we have little worry that regulation to assure truthfulness will discourage protected speech. And any concern that strict requirements for truthfulness will undesirably inhibit spontaneity seems inapplicable because commercial speech generally is calculated. Indeed, the public and private benefits from commercial speech derive from confidence in its accuracy and reliability. Thus, the leeway for untruthful or misleading expression that has been allowed in other contexts has little force in the commercial arena. Compare Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 -341 (1974), and Cantwell v. Connecticut, 310 U.S., at 310 , with NLRB v. Gissel Packing Co., 395 U.S., at 618 . In fact, because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising. For example, advertising claims as to the quality of services - a matter we do not address today - are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction. Similar objections might justify restraints on in-person solicitation. We do not foreclose the possibility that some limited supplantation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the consumer is not misled. In sum, we recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly.
As with other varieties of speech, it follows as well that there may be reasonable restrictions on the time, place, and manner of advertising. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 771. Advertising concerning transactions that are themselves illegal obviously may be suppressed. See Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388 (1973). And the special problems of advertising on the electronic broadcast media will warrant special consideration. Cf. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971), summarily aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972).
The constitutional issue in this case is only whether the State may prevent the publication in a newspaper of appellants' truthful advertisement concerning the availability and terms of routine legal services. We rule simply that the flow of such information may not be restrained, and we therefore hold the present application of the disciplinary rule against appellants to be violative of the First Amendment.
The judgment of the Supreme Court of Arizona is therefore affirmed in part and reversed in part.
It is so ordered. (End of Quote).
Lawyer Advertising
and the ABA Model Rules of Professional Conduct.
The current American Bar Association (ABA) Model Rules of Professional Conduct replaced in 1983 the 1960s-vintage ABA Code of Professional Conduct, which was patterned after the 1908 ABA Canons of Professional Ethics.
The ABA Model Rules expressly allow US lawyers and law firms to openly and publicly advertise their legal services to various individual and institutional consumers of legal services in the US through the mass media and other lawful and generally accepted traditional and modern advertising, solicitation and marketing methods, platforms, intermediaries and principles, subject to certain ethical standards.
As of the end of 1990, or seven years after the issuance of the ABA Model Rules in 1983, some 30 states had adopted the same as their model ethical framework that should govern the professional conduct of lawyers and law firms in their respective state jurisdictions, including the controversial matters of lawyer advertising, lawyers’ fees, and other aspects of client development activities or law firm marketing activities. (Haysworth, supra, p. 4).
RULE 7.1, ABA MODEL RULES.
Rule 7.1 of the ABA Model Rules that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services and that a communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(c) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.
This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2.
Whatever means are used to make known a lawyer’s services, statements about them should be truthful.
The prohibition in paragraph (b) of statements that may create unjustified expectations would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts, and advertisements containing client endorsements.
Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.
(Note: The main source of the texts of and the comments on the various provisions of ABA Model Rules of Professional Conduct appearing and used in this study was the ABA official web site located at http://www.abanet.org/cp.).
RULE 7.2, ABA MODEL RULES.
Rule 7.2 (entitled Advertising) of the ABA Model Rules expressly states:
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.
(b) A copy or recording of an advertisement or communication shall be kept for two years after its last dissemination along with a record of when and where it was used.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a not-for-profit lawyer referral service or legal service organization; and
(3) pay for a law practice in accordance with Rule 1.17.
(d) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.
(Amended February 7, 1989, American Bar Association House of Delegates, New Orleans, Louisiana, per Report No. 120B; February 12, 1990, American Bar Association House of Delegates, Los Angeles, California, per Report No. 8A).
The ABA believes that to assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising.
Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele.
However, the public’ s need to know about legal services can be fulfilled in part through advertising.
This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services.
The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching@. (See: ABA official website, supra, http://www.abanet.org/cpr).
Rule 7.2 of the ABA Model Rules permits public dissemination of information concerning a lawyer’s name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance. (id.).
Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment.
Some jurisdictions have had extensive prohibitions against television advertising, advertising going beyond specified facts about a lawyer, or undignified advertising.
Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public.
Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. (id.).
The Rules do not prohibit communications authorized by law, such as notices to members of a class in class action litigation. (id.).
Paragraph (b) of Rule 7.2 requires that a record of the content and use of advertising be kept in order to facilitate enforcement of the Rules.
It does not require that advertising be subject to review prior to dissemination.
Such a requirement would be burdensome and expensive relative to its possible benefits, and may be of doubtful constitutionality. (id.).
A lawyer is allowed to pay for advertising permitted by this Rule and for the purchase of a law practice in accordance with the provisions of Rule 1.17, but otherwise is not permitted to pay another person for channeling professional work.
This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer’s services. \
Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral programs and pay the usual fees charged by such programs.
Paragraph (c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule. (id.).
Rule 7.3, ABA Model Rules.
Rule 7.3 of the ABA Model Rules (entitled Direct Contact with Prospective Clients) provides that “(a) a lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain”. (id.; emphasis supplied).
Rule 7.3 further provides that “(b) a lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.” (id.).
Rule 7.3 also provides that “(c) every written or recorded communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter, and with whom the lawyer has no family or prior professional relationship, shall include the words Advertising Materials on the outside envelope and at the beginning and ending of any recorded communication”. (id.; emphasis supplied).
Finally, Rule 7.3 states that (d) notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer which uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. (id.; emphasis supplied).
(Amended February 7, 1989, American Bar Association House of Delegates, New Orleans, Louisiana, per Report Nos. 115 and 120B).
The commentary of the ABA on Rule 7.3 (a) states: “There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services”.
These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter.
The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer=s presence and insistence upon being retained immediately.
The situation is fraught with the possibility of undue influence, intimidation, and over-reaching. (id.).
This potential for abuse inherent in direct in-person or live telephone solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services.
Advertising and written and recorded communications which may be mailed or auto dialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct in-person or telephone persuasion that may overwhelm the client’s judgment. (id.).
The use of general advertising and written and recorded communications to transmit information from lawyer to prospective client, rather than direct in-person or live telephone contact, will help to assure that the information flows cleanly as well as freely.
The contents of advertisements and communications permitted under Rule 7.2 are permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer.
This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1.
The contents of direct in-person or live telephone conversations between a lawyer to a prospective client can be disputed and are not subject to third-party scrutiny.
Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading. (id.).
There is far less likelihood that a lawyer would engage in abusive practices against an individual with whom the lawyer has a prior personal or professional relationship or where the lawyer is motivated by considerations other than the lawyer=s pecuniary gain.
Consequently, the general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not applicable in those situations. (id.).
But even permitted forms of solicitation can be abused.
Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited.
Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 7.3(b). (id.).
This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer=s firm is willing to offer.
This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer.
Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2. (id.).
The requirement in Rule 7.3(c) that certain communications be marked Advertising Materials does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors.
General announcements by lawyers, including changes in personnel or office location, Ado not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule. (id.).
Paragraph (d) of this Rule would permit a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan.
The organization referred to in paragraph (d) must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise.
The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services.
Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). (id.).
Rule 7.4, ABA Model Rules.
Rule 7.4 (Communication of Fields of Practice) of the ABA Model Rules expressly provides:
“A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer has been recognized or certified as a specialist in a particular field of law except as follows:
(a) a lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation Patent Attorney or a substantially similar designation;
(b) a lawyer engaged in Admiralty practice may use the designation Admiralty, Proctor in Admiralty or a substantially similar designation; and
(c) [for jurisdictions where there is a regulatory authority granting certification or approving organizations that grant certification] a lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization or authority but only if:
(1) such certification is granted by the appropriate regulatory authority or by an organization which has been approved by the appropriate regulatory authority to grant such certification; or
(2) such certification is granted by an organization that has not yet been approved by, or has been denied the approval available from, the appropriate regulatory authority, and the absence or denial of approval is clearly stated in the communication, and in any advertising subject to Rule 7.2, such statement appears in the same sentence that communicates the certification.
(d) [for jurisdictions where there is no procedure either for certification of specialties or for approval of organizations granting certification] a lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization, provided that the communication clearly states that there is no procedure in this jurisdiction for approving certifying organizations. If, however, the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law, the communication need not contain such a statement”. (id.).
(Amended February 7, 1989, American Bar Association House of Delegates, Denver, Colorado, per Report No. 121; August 12, 1992, American Bar Association House of Delegates, San Francisco, California, per Revised Report No. 128; August 10, 1994, American Bar Association House of Delegates, New Orleans, Louisiana, per Report No. 121).
Rule 7.5, ABA Model Rules.
Rule 7.5 (Firm Name and Letterheads) of the ABA Model Rules provides that:
“(a) A firm lawyer shall not use a firm name, letterhead on other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public on charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdiction of limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practising with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact”. (id.).
Freedom of Commercial Speech and
Consumer Education and Access to Legal Services
As earlier sated, US jurisprudence allowing lawyer advertising is premised on the constitutional freedom of (commercial) speech.
The basic doctrine established in commercial speech cases is that a restriction on commercial speech that is not inherently misleading or deceptive will be held unconstitutional under the First Amendment unless the regulatory authority shows that the government’s interest in restricting the particular activity is substantial, that the regulation or stated rule in question achieves that interest, and that no less extensive or less restrictive measures could achieve the desired objective.(Central Hudson v. Public Service Commission, 447 U.S. 557 [1980]).
The US Supreme Court suggested in 1942 that the First Amendment provides no protection at all to advertising and other forms of commercial speech. (Valentine v. Christensen, 316 U.S. 52).
Since then, however, the Court has extended the First Amendment to provide limited protection to commercial expression, but the process has been uneven and still is evolving. Commercial speech restrictions usually are judged under a four-part test the court announced in Central Hudson Gas and Electric Corp. v. New York Public Service Commission, 447 U.S. 557 (1980), that asks:
· Does the speech concern lawful activity, and is not misleading?
· Is their a substantial state interest supporting the speech restriction?
· Does the regulation directly advance that the state interest?
· Is the regulation Ano more extensive than is required@ to advance that state interest?
(See: David O. Stewart, "Supreme Court Report: Business Talk", ABA Journal, September 1995, Chicago, Illinois: American Bar Association (ABA), pp. 40-42).
The first major case to apply the Central Hudson doctrine to governmental restrictions or commercial speech activities of lawyers was Bates v. State Bar of Arizona, 443 U.S. 350 (1977), where the United States Supreme Court held that truthful price advertising of attorneys cannot be subject to blanket suppression because such advertising is not unevenly misleading or deceptive.
Subsequently, in the 1982 case of In re R.M.J., 455 U.S. 191 (1982), the United States Supreme Court, in reversing a private reprimand against a lawyer for publishing advertisements listing areas of law not specified in the Missouri Code of Professional Responsibility and for sending notices announcing the opinion of his office to persons other than those specially authorized to receive them, held that regulation and imposition of discipline are permissible if the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive.
The US Supreme Court added that although misleading advertising may be prohibited entirely, the states may not place an absolute prohibition on potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive.
Thus, the US Supreme Court suggested that the remedy in the first instance is not necessarily by a prohibition but preferably a requirement of disclaimer or explanation.
It added that although the potential for deception and confusion is particularly strong in the content of advertising professional services, restrictions upon such advertising may be no broader than reasonably necessary to prevent the deception.
Even when a communication is not misleading the state retains some authority to regulate.
But the state must assert a substantial interest and the interference with speech must be in proportion to the interest served.
Restriction must be narrowly drawn, and the state may regulate only to the extent the regulation furthers the state’s substantial interest.
Although Bates, et. Al. vs. State Bar of Arizona, 45 L.W. 4895 (June 25,1977), supra, did not answer all questions concerning lawyer advertising, the following principles were set forth:
1. Advertising regulations adopted by states action are deemed to be a legitimate by means of preserving people=s integrity, and are exempt from the Sherman Act.
2. The traditional ban against lawyers advertising is contrary to the First Amendment, and the majority of the US Supreme Court noted with particular interest the dissenting view in the lower court opinion that the issue should be framed in terms of the right of the public as consumers and citizens to know about the activities of the legal profession.
3. Appropriate regulations may be established to restrain false, deceptive or misleading advertising and to some extent control the time, place and manner of advertising.
4. A lawyer may advertise certain factual and fee information in print media, including the prices at which certain routine services will be performed.
5. The First Amendment overbreadth doctrine does apply to commercial speech. thereby limiting the holding of the Bates decision to the particular facts of that case.
6. Although the facts of the case dealt with newspaper advertising, the US Supreme Court noted: “It is clear that today’s decision cannot be confined on a principled basis to price advertisement in newspapers. No distinction can be drawn between newspapers and a rather broad spectrum of other means, for example, magazines, signs in buses and subways, posters, handbills and mail circulations. But questions remain open as to time, place, and manner restrictions affecting other media, such as radio and television”.
7. Similarly, the majority opinion refers to the fact that certain information is already permitted in legal directories and telephone books, and states, If the information is not misleading when published in a telephone directory, it is difficult to see why it becomes misleading when published in a newspapers.
Following the historical and landmark Bates decision, the 1977 ABA Task Force on Lawyer Advertising recommended the to the ABA House of Delegates and the ABA Board of Governors the approval of the use of electronic media advertising and radio advertising.
The Task Force concluded: “It is also apparent to the Task Force that despite the significant amount of time it has devoted to the subject during the past several weeks, many important questions still need to be answered. It is highly likely that further amendments will be required to clarify such question as the use of televisions, the scope of time place and manner restrictions, and the right of a lawyer to indicate a limitation on concentration of practice. Provision should now be made for an on-going evaluation and also for a program of vigorous consumer education by the organized bar.”
The proposals were constructive responses to the goal recognize by the Supreme Court of providing consumers with needed information about lawyers services and their costs. (id.).
Dean Haysworth, supra, at pp. 153, summarized the proposals of the 1977 ABA Task Force on Lawyer Advertising, thus:
“Proposal A” retains many of the present disciplinary rules that specify the categories of information that can be published: name, field of law practice concentration, education, client reference, etc. It adds certain fee, a range for certain services, hourly rate, and changes for specific legal services the description of which would not be misunderstood or be deceptive (See Proposal A, DR 2 B 101 [B]). It also provides a procedure for a lawyer to seek to expand information that may be disclosed through application to appropriate state authorities. (Proposal A, DR 2 B 101 [C]).
Proposal B does not list the specific items permitted to be advertised, but adopts a general anti-fraud standard, and specifies with great particularity the elements of false, fraudulent, misleading or deceptive statements. (See Proposal B, DR 2- 101 [B]). As to fees, it would authorize disclosure of the same kind of information permitted under Proposal A, subject only to the anti- fraud provision. (Proposal B, DR 2 B 101 [B] [6]).
Neither proposal would allow one- to-one solicitation, nor would either permit the use of television in the absence of a determination by the appropriate state authorities that it is necessary to provide adequate information to consumers of legal services. Both provide extensive commentary in ethical considerations to guide regulatory agencies.
Both proposals refer the question of television advertising to the states... The Task Force concludes that certain radio advertising should be permitted now and television advertising should be permitted if, as the Task Force has been assured, safeguards, can be developed that will effectively regulate such advertising. However, the Task Force recognizes that it not had sufficient expertise to identify or fully evaluate all the problems involved or to develop appropriate proposed regulations. The Supreme Court recognized that certain electronic advertising might offer special problems. (See: Dean Harry J. Haysworth, Marketing and Legal Ethics: The Rules and Risks, Chicago: ABA Section on Law Practice Management, 1990 ed., p. 153, see also Appendix B thereof).
Subsequent U.S. Supreme Court Decisions
Affirmed the Ruling in Bates (1977)
Subsequent to the 1977 Bates decision, supra, the U.S. Supreme Court had promulgated various decisions generally affirming the prevailing doctrine that lawyer advertising fell within the ambit of the constitutional freedom of commercial speech (First Amendment Rights).
Before discussing any further the related US Supreme Court decisions on lawyer advertising, law firm marketing, and solicitation, it must be noted that the Court on various occasions has upheld the provisions of the ABA Model Rules on the said issues, supra, a digest of which is repeated below in view of the importance of the said provisions:
1. Rule 7.1.
A lawyer shall not make false or misleading communication about the lawyer=s services. A communication is false and misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) is likely to create an unjustified expectation about results the lawyer can achieve, a statement or implication that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(c) compares the lawyer=s services, unless comparison can be factually substantiated.
2. Rule 7.2.
Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication
A record of an advertisement or communication shall be kept for two years after its last dissemination along with a record of when and where it was used.
A lawyer shall not give anything of value to a person for recommending the lawyer=s services except that a lawyer may pay the reasonable cost of advertising on communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer refusal service or other legal service origin.
Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its constant.
3. Rule 7.3.
A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family relation prior professional relationship when a significant motive for the lawyer=s doing so is the lawyer=s pecuniary gain.
A lawyer shall not solicit professional employment from a prospective client by written or recorded communication by in-person on telephone contact even when not otherwise prohibited by the preceding paragraphs if:
(a) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(b) the solicitation involves coercion, duress or harassment.
Every written or recorded communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter, and with whom the lawyer has no family or prior professional relationship, shall include the words Advertising Material on the outside envelope and at the beginning and ending of any recorded communication.
Notwithstanding the prohibition in the preceding paragraphs, a lawyer may participate with a prepaid group or legal service plan operated by an organization not owned or directed by the lawyer which uses in-person on telephone contact to solicit membership on subscriptions for the plan from persons who are not in need of legal services in a particular matter covered by the plan.
4. Rule 7.4.
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is specialist except as follows:
(a) a lawyer admitted to engage in patent practice before the US Patent and Trademark Office may use the designation Patent Attorney or substantially similar designation;
(b) a lawyer engaged in Admiralty or a substantially similar designation; and
(c) when so designated as a specialist in a particular field of law practice by a particular state bar.
Ohralik vs. Ohio State Bar Association, 436 U.S. 447 (1978)
In the 1978 case of Ohralik v. Ohio State Bar, 436 U.S. 447 (1978), the US Supreme Court had the occasion to rule on the ethics of in-person solicitation by lawyers.
The Court held that in-person solicitation, as opposed to media advertisement or mass mailings, however, was subject to more stringent regulation because of the inherent likelihood of intimidation, fraud, undue influence and over- reaching. It upheld a blanket prohibition against any form of in- person solicitation of prospective clients. Direct in- person solicitation is permissible, however, where it is constitutionally protected under the freedom of association doctrine.
(See UTU v. State Bar of Michigan, 401 U.S. 576 (1971); UMU v. Illinois State Bar Assn, 389 U.S. 217 (1967); BRT v. Virginia ex rel. Virginia State Bar, 377 U.S., (1964); NAACP v. Button, 371 U.S. 415 (1963); In re Primus, 436 U.S. 412 (1978); In re Jaques, 407 Mich. 26, 281, N.W.2d 469 (1979); In re Teichmann, 75 Ill. 2d 88,387, N.E. 2d 265,444 U.S. 917(1979). (See: DR 2 B 103 (D) and DR 2 B 104 (A) (2) and (3) of the ABA Model Code of Professional Responsibility and the new ABA Model Rules of Professional Conduct, Rule 7.3). [Haysworth, supra, p. 8).
A digest of Ohralik v. Ohio State Bar, 436 U.S. 447 (1978) is presented below:
Facts:
Appellant, an Ohio lawyer contacted the parents of one of the drivers injured in an automobile accident after hearing about the accident from another source, and learned that the 18-year-old daughter was hospitalized. He then approached the daughter at the hospital and offered to represent her. After another visit with her parents, he again visited the accident victim in her hospital room, where she signed a contingent-fee agreement. In the meantime, appellant approached the driver's 18-year-old female passenger - who also had been injured - at her home on the day she was released from the hospital; she agreed orally to a contingent-fee arrangement. Eventually, both young women discharged appellant as their lawyer, but he succeeded in obtaining a share of the driver's insurance recovery in settlement of his lawsuit against her for breach of contract. As a result of complaints filed against appellant by the two young women with a bar grievance committee, appellee filed a formal complaint with the disciplinary Board of the Ohio Supreme Court. The Board found that appellant solicited clients in violation of certain Disciplinary Rules, and rejected appellant's defense that his conduct was protected by the First and Fourteenth Amendments. The Ohio Supreme Court adopted the Board's findings, and increased the Board's recommended sanction of a public reprimand to indefinite suspension.
Held:
The Bar, acting with state authorization, constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent, and thus the application of the Disciplinary Rules in question to appellant does not offend the Constitution. Bates v. State Bar of Arizona, 433 U.S. 350 , distinguished.
(a) A lawyer's solicitation of business through direct, in-person communication with the prospective clients has long been viewed as inconsistent with the profession's ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client.
(b) The State does not lose its power to regulate commercial activity deemed harmful to the public simply because speech is a component of that activity.
(c) A lawyer's procurement of remunerative employment is only marginally affected with First Amendment concerns. While entitled to some constitutional protection, appellant's conduct is subject to regulation in furtherance of important state interests.
(d) In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions, especially members of the Bar. Protection of the public from those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of "vexatious conduct" is a legitimate and important state interest.
(e) Because the State's interest is in averting harm by prohibiting solicitation in circumstances where it is likely to occur, the absence of explicit proof or findings of harm or injury to the person solicited is immaterial. The application of the Disciplinary Rules to appellant, who solicited employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert, does not offend the Constitution.
Further, in Ohralik, supra, the US Supreme Court more specifically held:
“In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), this Court held that truthful advertising of "routine" legal services is protected by the First and Fourteenth Amendments against blanket prohibition by a State. The Court expressly reserved the question of the permissible scope of regulation of "in-person solicitation of clients - at the hospital room or the accident site, or in any other situation that breeds undue influence - by attorneys or their agents or `runners.' Today we answer part of the question so reserved, and hold that the State - or the Bar acting with state authorization - constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.
The solicitation of business by a lawyer through direct, in-person communication with the prospective client has long been viewed as inconsistent with the profession's ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. It has been proscribed by the organized Bar for many years. Last Term the Court ruled that the justifications for prohibiting truthful, "restrained" advertising concerning "the availability and terms of routine legal services" are insufficient to override society's interest, safeguarded by the First and Fourteenth Amendments, in assuring the free flow of commercial information. Bates, 433 U.S., at 384 ; see Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). The balance struck in Bates does not predetermine the outcome in this case. The entitlement of in-person solicitation of clients to the protection of the First Amendment differs from that of the kind of advertising approved in Bates, as does the strength of the State's countervailing interest in prohibition.
xxxx. Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection. The aim and effect of in-person solicitation may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decisionmaking; there is no opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual. The admonition that "the fitting remedy for evil counsels is good ones" is of little value when the circumstances provide no opportunity for any remedy at all. In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the "availability, nature, and prices" of legal services; it actually may disserve the individual and societal interest, identified in Bates, in facilitating "informed and reliable decisionmaking." x x x x.
The state interests implicated in this case are particularly strong. In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions. See Williamson v. Lee Optical Co., 348 U.S. 483 (1955); Semler v. Oregon State Bd. of Dental Examiners, 294 U.S. 608 (1935). "The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been `officers of the courts.'" Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975). While lawyers act in part as "self-employed businessmen," they also act "as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes." Cohen v. Hurley, 366 U.S. 117, 124 (1961).
As is true with respect to advertising, it appears that the ban on solicitation by lawyers originated as a rule of professional etiquette rather than as a strictly ethical rule. See H. Drinker, Legal Ethics 210-211, and n. 3 (1953). "[T]he rules are based in part on deeply ingrained feelings of tradition, honor and service. Lawyers have for centuries emphasized that the promotion of justice, rather than the earning of fees, is the goal of the profession." Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U. Chi. L. Rev. 674 (1958). But the fact that the original motivation behind the ban on solicitation today might be considered an insufficient justification for its perpetuation does not detract from the force of the other interests the ban continues to serve. Cf. McGowan v. Maryland, 366 U.S. 420, 431 , 433-435, 444 (1961). While the Court in Bates determined that truthful, restrained advertising of the prices of "routine" legal services would not have an adverse effect on the professionalism of lawyers, this was only because it found "the postulated connection between advertising and the erosion of true professionalism to be severely strained." The Bates Court did not question a State's interest in maintaining high standards among licensed professionals. Indeed, to the extent that the ethical standards of lawyers are linked to the service and protection of clients, they do further the goals of "true professionalism."
The substantive evils of solicitation have been stated over the years in sweeping terms: stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation. The American Bar Association, as amicus curiae, defends the rule against solicitation primarily on three broad grounds: It is said that the prohibitions embodied in DR 2-103 (A) and 2-104 (A) serve to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer's exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest. x x x x.
Appellant's argument misconceives the nature of the State's interest. The Rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs. The Rules were applied in this case to discipline a lawyer for soliciting employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert. In such a situation, which is inherently conducive to overreaching and other forms of misconduct, the State has a strong interest in adopting and enforcing rules of conduct designed to protect the public from harmful solicitation by lawyers whom it has licensed. x x x x.
The State's perception of the potential for harm in circumstances such as those presented in this case is well founded. The detrimental aspects of face-to-face selling even of ordinary consumer products have been recognized and addressed by the Federal Trade Commission, and it hardly need be said that the potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Such an individual may place his trust in a lawyer, regardless of the latter's qualifications or the individual's actual need for legal representation, simply in response to persuasion under circumstances conducive to uninformed acquiescence. Although it is argued that personal solicitation is valuable because it may apprise a victim of misfortune of his legal rights, the very plight of that person not only makes him more vulnerable to influence but also may make advice all the more intrusive. Thus, under these adverse conditions the overtures of an uninvited lawyer may distress the solicited individual simply because of their obtrusiveness and the invasion of the individual's privacy, even when no other harm materializes. Under such circumstances, it is not unreasonable for the State to presume that in-person solicitation by lawyers more often than not will be injurious to the person solicited.
The efficacy of the State's effort to prevent such harm to prospective clients would be substantially diminished if, having proved a solicitation in circumstances like those of this case, the State were required in addition to prove actual injury. Unlike the advertising in Bates, in-person solicitation is not visible or otherwise open to public scrutiny. Often there is no witness other than the lawyer and the lay person whom he has solicited, rendering it difficult or impossible to obtain reliable proof of what actually took place. This would be especially true if the lay person were so distressed at the time of the solicitation that he could not recall specific details at a later date. If appellant's view were sustained, in-person solicitation would be virtually immune to effective oversight and regulation by the State or by the legal profession, in contravention of the State's strong interest in regulating members of the Bar in an effective, objective, and self-enforcing manner. It therefore is not unreasonable, or violative of the Constitution, for a State to respond with what in effect is a prophylactic rule.
On the basis of the undisputed facts of record, we conclude that the Disciplinary Rules constitutionally could be applied to appellant. He approached two young accident victims at a time when they were especially incapable of making informed judgments or of assessing and protecting their own interests. He solicited Carol McClintock in a hospital room where she lay in traction and sought out Wanda Lou Holbert on the day she came home from the hospital, knowing from his prior inquiries that she had just been released. Appellant urged his services upon the young women and used the information he had obtained from the McClintocks, and the fact of his agreement with Carol, to induce Wanda to say "O. K." in response to his solicitation. He employed a concealed tape recorder, seemingly to insure that he would have evidence of Wanda's oral assent to the representation. He emphasized that his fee would come out of the recovery, thereby tempting the young women with what sounded like a cost-free and therefore irresistible offer. He refused to withdraw when Mrs. Holbert requested him to do so only a day after the initial meeting between appellant and Wanda Lou and continued to represent himself to the insurance company as Wanda Holbert's lawyer. x x x x.
Accordingly, the judgment of the Supreme Court of Ohio is
Affirmed.” (End of Quote).
In Re: PRIMUS, 436 U.S. 412 (1978)
The 1978 case of In Re: Primus, 436 U.S. 412, involved the interplay of the First Amendment and the Fourteenth Amendment in relation to the right of interest groups and non-governmental organizations to refer lawyers to members and other persons who were the beneficiaries of the services and goals of such organizations. A digest of In Re: Primus is presented below.
Facts:
Appellant, a practicing lawyer in South Carolina who was also a cooperating lawyer with a branch of the American Civil Liberties Union (ACLU), after advising a gathering of women of their legal rights resulting from their having been sterilized as a condition of receiving public medical assistance, informed one of the women in a subsequent letter that free legal assistance was available from the ACLU. Thereafter, the disciplinary Board of the South Carolina Supreme Court charged and determined that appellant, by sending such letter, had engaged in soliciting a client in violation of certain Disciplinary Rules of the State Supreme Court, and issued a private reprimand. The court adopted the Board's findings and increased the sanction to a public reprimand.
Held:
South Carolina's application of its Disciplinary Rules to appellant's solicitation by letter on the ACLU's behalf violates the First and Fourteenth Amendments. NAACP v. Button, 371 U.S. 415 ,
(a) Solicitation of prospective litigants by nonprofit organizations that engage in litigation as "a form of political expression" and "political association" constitutes expressive and associational conduct entitled to First Amendment protection, as to which government may regulate only "with narrow specificity".
(b) Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment," United Transportation Union v. Michigan Bar, 401 U.S. 576, 585 , and have required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms," Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222.
(c) Appellant's activity in this case comes within the generous zone of protection reserved for associational freedoms because she engaged in solicitation by mail on behalf of a bona fide, nonprofit organization that pursues litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. There is nothing in the record to suggest that the ACLU or its South Carolina affiliate is an organization dedicated exclusively to providing legal services, or a group of attorneys that exists for the purpose of financial gain through the recovery of counsel fees, or a mere sham to evade a valid state rule against solicitation for pecuniary gain.
(d) The Disciplinary Rules in question, which sweep broadly, rather than regulating with the degree of precision required in the context of political expression and association, have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," as well as for permitting discretionary enforcement against unpopular causes.
(e) Although a showing of potential danger may suffice in the context of in-person solicitation for pecuniary gain under the decision today in Ohralik, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed.
(f) The record does not support appellee's contention that undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, or lay interference actually occurred in this case. And the State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization of the legal profession offer no further justification for the discipline administered to appellant.
(g) Nothing in this decision should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the ACLU.
In Re: R. M. J., 455 U.S. 191 (1982)
In the case of In Re: R.M.J., 455 U.S. 191 (1982), the constitutionality of certain restrictions of the Missouri ethics code limiting the right of a lawyer to advertise were put in issue. A digested presentation of the case is presented below.
Facts:
Rule 4 of the Missouri Supreme Court, regulating advertising by lawyers, states that a lawyer may include 10 categories of information in a published advertisement: name, address and telephone number; areas of practice; date and place of birth; schools attended; foreign language ability; office hours; fee for an initial consultation; availability of a schedule of fees; credit arrangements; and the fixed fee to be charged for certain "routine" legal services.
Although the Rule does not state explicitly that these 10 categories of information are the only information that will be permitted, that is the interpretation given the Rule by the State Supreme Court and appellee Advisory Committee, which is charged with its enforcement. An addendum to the Rule specifies two ways in which areas of practice may be listed in an advertisement, under one of which the lawyer may use one or more of a list of 23 areas of practice but may not deviate from the precise wording stated in the Rule to describe these areas.
In addition, the Rule permits a lawyer to send professional announcement cards announcing a change of address or firm name, or similar matters, but only to "lawyers, clients, former clients, personal friends, and relatives."
An information was filed in the Missouri Supreme Court by appellee Advisory Committee, charging appellant, a practicing lawyer in St. Louis, Mo., with violations of Rule 4. The information charged that appellant published advertisements which listed areas of practice in language other than that specified in the Rule and which listed the courts in which appellant was admitted to practice although this information was not included among the 10 categories of information authorized by the Rule.
In addition, the information charged that appellant had mailed announcement cards to persons other than those permitted by the Rule. Appellant claimed that each of the restrictions upon advertising was unconstitutional under the First and Fourteenth Amendments, but the Missouri Supreme Court upheld the constitutionality of Rule 4 and issued a private reprimand.
Held:
None of the restrictions in question upon appellant's First Amendment rights can be sustained in the circumstances of this case.
(a) Although the States retain the ability to regulate commercial speech, such as lawyer advertising, that is inherently misleading or that has proved to be misleading in practice, the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests.
(b) Because the listing published by appellant - e. g., "real estate" instead of "property law" as specified by Rule 4, and "contracts" and "securities," which were not included in the Rule's listing - has not been shown to be misleading, and appellee suggests no substantial interest promoted by the restriction, the portion of Rule 4 specifying the areas of practice that may be listed is an invalid restriction upon speech as applied to appellant's advertisements.
(c) Nor has appellee identified any substantial interest in prohibiting a lawyer from identifying the jurisdictions in which he is licensed to practice. Such information is not misleading on its face. That appellant was licensed to practice in both Illinois and Missouri is factual and highly relevant information, particularly in light of the geography of the region in which he practices. While listing the relatively uninformative fact that he is a member of the United States Supreme Court Bar could be misleading, there was no finding to this effect by the Missouri Supreme Court, there is nothing in the record to indicate it was misleading, and the Rule does not specifically identify it as potentially misleading.
(d) With respect to the restriction on announcement cards, while mailings may be more difficult to supervise, there is no indication in the record that an inability to supervise is the reason the State restricts the potential audience of the cards. Nor is it clear that an absolute prohibition is the only solution, and there is no indication of a failed effort to proceed along a less restrictive path.
Zauderer v. Office of Disciplinary Counsel of Supreme
Court of Ohio, 471 U.S. 626 (1985)
In Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), a lawyer had been disciplined for placing certain advertisements soliciting clients who might have personal-injury claims as a result of using a particular type of intrauterine device contained a picture of the device.
The Ohio disciplinary board had determined that this illustration was prohibited by the Ohio ethics code.
Reversing the imposition of the discipline based or this change, the U.S. Supreme Court held that the use of illustration or pictures in advertising serves important communicative functions.
It attracts the attention of the audience to the advertiser’s message, and it may also serve to impact information directly.
Accordingly, commercial, illustrations are entitled to the First Amendment protection afforded verbal commercial speech.
Restrictions on the use of visual media of expression in advertising must survive scrutiny under the Central Hudson test.
Because the illustration for which the appellant was disciplined was an accurate representation of the intrauterine device and had no features that were likely to deceive, mislead, or confuse the reader, the burden was on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the best restrictive available means.
In the Zauderer, the Court went as far as saying: “As we held in Carey v. Population Services Int’l, 431 U.S. 678-701 (1977), the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity”. (Haysworth, supra, pp. 6-7).
A digest of Zauderer is presented below:
Facts:
Appellant, an attorney practicing law in Ohio, ran a newspaper advertisement advising readers that his firm would represent defendants in drunken driving cases and that his clients' "full legal fee [would be] refunded if [they were] convicted of DRUNK DRIVING." Later, appellant ran another newspaper advertisement publicizing his willingness to represent women who had suffered injuries resulting from their use of a contraceptive known as the Dalkon Shield Intrauterine Device.
The advertisement featured a line drawing of the device and stated that the Dalkon Shield had generated a large amount of lawsuits; that appellant was currently handling such lawsuits and was willing to represent other women asserting similar claims; that readers should not assume that their claims were time-barred; that cases were handled on a contingent-fee basis; and that "[i]f there is no recovery, no legal fees are owned by our clients."
This advertisement attracted 106 clients. Appellee Office of Disciplinary Counsel of the Supreme Court of Ohio filed a complaint charging that appellant's advertisements violated a number of Disciplinary Rules of the Ohio Code of Professional Responsibility. The complaint alleged that the drunken driving advertisement was deceptive because it purported to propose a transaction that would violate a rule prohibiting contingent-fee representation in criminal cases, and that the Dalkon Shield advertisement violated rules prohibiting the use of illustrations in advertisements and the soliciting of legal employment.
The complaint also alleged that the Dalkon Shield advertisement violated a rule prohibiting false or deceptive statements because it failed to inform clients that they would be liable for costs (as opposed to legal fees) even if their claims were unsuccessful. Rejecting appellant's contentions that the Ohio rules restricting the content of advertising by attorneys were unconstitutional, the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court concluded that the advertisements violated a number of the rules and recommended disciplinary action.
With respect to the drunken driving advertisement, the Board, differing from the theory advanced in appellee's complaint, found that the advertisement's failure to mention the common practice of plea bargaining might be deceptive to potential clients who would be unaware of the possibility that they would both be found guilty of a lesser offense and [471 U.S. 626, 627] be liable for attorney's fees because they had not been convicted of drunken driving. The Ohio Supreme Court ultimately adopted the Board's findings and issued a public reprimand.
Held:
The reprimand is sustainable to the extent that it is based on appellant's advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Dalkon Shield advertisement. But insofar as the reprimand is based on appellant's use of an illustration in his advertisement and his offer of legal advice, the reprimand violated his First Amendment rights.
(a) The speech at issue is "commercial speech" entitled to First Amendment protection. Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.
(b) The reprimand cannot be sustained on the ground that the Dalkon Shield advertisement violated rules against soliciting or accepting legal employment through advertisements containing information or advice regarding a specific legal problem. The advertisement's statements concerning the Dalkon Shield were neither false nor deceptive, and the governmental interests that were found to be sufficient to justify a ban on in-person solicitation of legal business in Ohralik v. Ohio State Bar Assn., 436 U.S. 447 , are not present here. Nor can a prohibition on the use of legal advice and information in attorney advertising be sustained on the ground that a prophylactic rule is needed to ensure that attorneys, in an effort to secure legal business for themselves, do not use false or misleading advertising to stir up meritless litigation. And the contention that a prophylactic rule is necessary because the regulatory problems in distinguishing deceptive and nondeceptive legal advertising are different in kind from the problems presented by the advertising of other types of goods and services is unpersuasive.
(c) Ohio's ban on the use of illustrations in attorney advertisements cannot stand. Because the illustration in appellant's Dalkon Shield advertisement was an accurate representation, the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means. The State's interest in preserving the dignity of the legal profession is insufficient to justify the ban on all use of illustrations in advertising. Nor can the rule be sustained on unsupported assertions that the use of illustrations in attorney advertising creates unacceptable risks that the public will be misled, manipulated, or confused; or that, because illustrations may produce their effects by operating on a subconscious level, it [471 U.S. 626, 628] would be difficult for the State to point to any particular illustration and prove that it is misleading or manipulative.
(d) The Ohio Supreme Court's decision to discipline appellant for his failure to include in the Dalkon Shield advertisement the information that clients might be liable for litigation costs even if their lawsuits were unsuccessful does not violate the First Amendment. 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. An advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers. The State's position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client's liability for costs is reasonable enough to support the disclosure requirement.
(e) The constitutional guarantee of due process was not violated by the discrepancy between the theory relied on by both the Ohio Supreme Court and its Board of Commissioners as to how the drunken driving advertisement was deceptive and the theory asserted by appellee in its complaint. Under Ohio law, bar discipline is the Ohio Supreme Court's responsibility, and the Ohio rules provide ample opportunity for response to the Board's recommendations to the court that put appellant on notice of the charges he had to answer to the court's satisfaction. Such notice and opportunity to respond satisfy the demands of due process.
An expanded presentation of the ratio decidendi of Zauderer is presented below:
x x x x x.
Since the decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), in which the Court held for the first time that the First Amendment precludes certain forms of regulation of purely commercial speech, we have on a number of occasions addressed the constitutionality of restraints on advertising and solicitation by attorneys. See In re R. M. J., 455 U.S. 191 (1982); In re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978); Bates v. State Bar of Arizona, 433 U.S. 350 (1977). This case presents additional unresolved questions regarding the regulation of commercial speech by attorneys: whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements.
I.
Appellant is an attorney practicing in Columbus, Ohio. Late in 1981, he sought to augment his practice by advertising in local newspapers. His first effort was a modest one: he ran a small advertisement in the Columbus Citizen Journal advising its readers that his law firm would represent defendants in drunken driving cases and that his clients' "[f]ull legal fee [would be] refunded if [they were] convicted [471 U.S. 626, 630] of DRUNK DRIVING." The advertisement appeared in the Journal for two days; on the second day, Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio (appellee) telephoned appellant and informed him that the advertisement appeared to be an offer to represent criminal defendants on a contingent-fee basis, a practice prohibited by Disciplinary Rule 2-106(C) of the Ohio Code of Professional Responsibility. Appellant immediately withdrew the advertisement and in a letter to Kettlewell apologized for running it, also stating in the letter that he would decline to accept employment by persons responding to the ad.
Appellant's second effort was more ambitious. In the spring of 1982, appellant placed an advertisement in 36 Ohio newspapers publicizing his willingness to represent women who had suffered injuries resulting from their use of a contraceptive device known as the Dalkon Shield Intrauterine Device. The advertisement featured a line drawing of the Dalkon Shield accompanied by the question, "DID YOU USE THIS IUD?" The advertisement then related the following information:
"The Dalkon Shield Interuterine [sic] Device is alleged to have caused serious pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It is also alleged to have caused unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. If you or a friend have had a similar experience do not assume it is too late to take legal action against the Shield's manufacturer. Our law firm is presently representing women on such cases. The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients."
The ad concluded with the name of appellant's law firm, its address, and a phone number that the reader might call for "free information."
The advertisement was successful in attracting clients: appellant received well over 200 inquiries regarding the advertisement, and he initiated lawsuits on behalf of 106 of the women who contacted him as a result of the advertisement. The ad, however, also aroused the interest of the Office of Disciplinary Counsel.
On July 29, 1982, the Office filed a complaint against appellant charging him with a number of disciplinary violations arising out of both the drunken driving and Dalkon Shield advertisements.
The complaint, as subsequently amended, alleged that the drunken driving ad violated Ohio Disciplinary Rule 2-101(A) in that it was "false, fraudulent, misleading, and deceptive to the public" 3 because it offered representation on a contingent-fee basis in a criminal case - an offer that could not be carried out under Disciplinary Rule 2-106(C). With [471 U.S. 626, 632] respect to the Dalkon Shield advertisement, the complaint alleged that in running the ad and accepting employment by women responding to it, appellant had violated the following Disciplinary Rules: DR 2-101(B), which prohibits the use of illustrations in advertisements run by attorneys, requires that ads by attorneys be "dignified," and limits the information that may be included in such ads to a list of 20 items; 4 [471 U.S. 626, 633] DR 2-103(A), which prohibits an attorney from "recommend[ing] employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer"; and DR 2-104(A), which provides (with certain exceptions not applicable here) that "[a] lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice."
The complaint also alleged that the advertisement violated DR 2-101(B)(15), which provides that any advertisement that mentions contingent-fee rates must "disclos[e] whether percentages are computed before or after deduction of court costs and expenses," and that the ad's failure to inform clients that they would be liable for costs (as opposed to legal fees) even if their claims were unsuccessful rendered the advertisement "deceptive" in violation of DR 2-101(A). The complaint did not allege that the Dalkon Shield advertisement was false or deceptive in any respect other than its [471 U.S. 626, 634] omission of information relating to the contingent-fee arrangement; indeed, the Office of Disciplinary Counsel stipulated that the information and advice regarding Dalkon Shield litigation was not false, fraudulent, misleading, or deceptive and that the drawing was an accurate representation of the Dalkon Shield. x x x x.
Contending that Ohio's Disciplinary Rules violate the First Amendment insofar as they authorize the State to discipline him for the content of his Dalkon Shield advertisement, appellant filed this appeal. Appellant also claims that the manner in which he was disciplined for running his drunken driving advertisement violated his right to due process. We noted probable jurisdiction, and now affirm in part and reverse in part.
II
There is no longer any room to doubt that what has come to be known as "commercial speech" is entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that afforded "noncommercial speech." Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); In re R. M. J., 455 U.S. 191 (1982); Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980). More subject to doubt, perhaps, are the precise bounds of the category of expression that may be termed commercial speech, but it is clear enough that the speech at issue in this case - advertising pure and simple - falls within those bounds. Our commercial speech doctrine rests heavily on "the `common-sense' distinction between speech proposing a commercial transaction . . . and other varieties of speech," Ohralik v. Ohio State Bar Assn., supra, at 455-456, and appellant's advertisements undeniably propose a commercial transaction. Whatever else the category of commercial speech may encompass, see Central Hudson Gas & Electric Co. v. Public Service Comm'n of New York, supra, it must include appellant's advertisements.
Our general approach to restrictions on commercial speech is also by now well settled. The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, see Friedman v. Rogers, 440 U.S. 1 (1979), or that proposes an illegal transaction, see Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973). Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Central Hudson Gas & Electric, supra, at 566. Our application of these principles to the commercial speech of attorneys has led us to conclude that blanket bans on price advertising by attorneys and rules preventing attorneys from using non-deceptive terminology to describe their fields of practice are impermissible, see Bates v. State Bar of Arizona, 433 U.S. 350 (1977); In re R. M. J., supra, but that rules prohibiting in-person solicitation of clients by attorneys are, at least under some circumstances, permissible, see Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978). To resolve this appeal, we must apply the teachings of these cases to three separate forms of regulation Ohio has imposed on advertising by its attorneys: prohibitions on soliciting legal business through advertisements containing advice and information regarding specific legal problems; restrictions on the use of illustrations in advertising by lawyers; and disclosure requirements relating to the terms of contingent fees.
III
We turn first to the Ohio Supreme Court's finding that appellant's Dalkon Shield advertisement (and his acceptance of employment resulting from it) ran afoul of the rules against self-recommendation and accepting employment resulting from unsolicited legal advice. Because all advertising is at least implicitly a plea for its audience's custom, a broad reading of the rules applied by the Ohio court (and particularly the rule against self-recommendation) might suggest that they forbid all advertising by attorneys - a result obviously not in keeping with our decisions in Bates and In re R. M. J. But the Ohio court did not purport to give its rules such a broad reading: it held only that the rules forbade soliciting or accepting legal employment through advertisements containing information or advice regarding a specific legal problem.
The interest served by the application of the Ohio self-recommendation and solicitation rules to appellant's advertisement is not apparent from a reading of the opinions of the Ohio Supreme Court and its Board of Commissioners. The advertisement's information and advice concerning the Dalkon Shield were, as the Office of Disciplinary Counsel stipulated, neither false nor deceptive: in fact, they were entirely accurate. The advertisement did not promise readers that [471 U.S. 626, 640] lawsuits alleging injuries caused by the Dalkon Shield would be successful, nor did it suggest that appellant had any special expertise in handling such lawsuits other than his employment in other such litigation. Rather, the advertisement reported the indisputable fact that the Dalkon Shield has spawned an impressive number of lawsuits and advised readers that appellant was currently handling such lawsuits and was willing to represent other women asserting similar claims. In addition, the advertisement advised women that they should not assume that their claims were time-barred - advice that seems completely unobjectionable in light of the trend in many States toward a "discovery rule" for determining when a cause of action for latent injury or disease accrues.
The State's power to prohibit advertising that is "inherently misleading," see In re R. M. J., 455 U.S., at 203 , thus cannot justify Ohio's decision to discipline appellant for running advertising geared to persons with a specific legal problem.
Because appellant's statements regarding the Dalkon Shield were not false or deceptive, our decisions impose on the State the burden of establishing that prohibiting the use of such statements to solicit or obtain legal business directly advances a substantial governmental interest. The extensive citations in the opinion of the Board of Commissioners to our opinion in Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), suggest that the Board believed that the application of the rules to appellant's advertising served the same interests that this Court found sufficient to justify the ban on in-person solicitation at issue in Ohralik. We cannot agree. Our decision in Ohralik was largely grounded on the substantial differences between face-to-face solicitation and the advertising we had held permissible in Bates. In-person solicitation by a lawyer, we concluded, was a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud. Ohralik, 436 U.S., at 464 -465. In addition, we noted that in-person solicitation presents unique regulatory difficulties because it is "not visible or otherwise open to public scrutiny." Id., at 466. These unique features of in-person solicitation by lawyers, we held, justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain, but we were careful to point out that "in-person solicitation of [471 U.S. 626, 642] professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services."
It is apparent that the concerns that moved the Court in Ohralik are not present here. Although some sensitive souls may have found appellant's advertisement in poor taste, it can hardly be said to have invaded the privacy of those who read it. More significantly, appellant's advertisement - and print advertising generally - poses much less risk of over-reaching or undue influence. Print advertising may convey information and ideas more or less effectively, but in most cases, it will lack the coercive force of the personal presence of a trained advocate. In addition, a printed advertisement, unlike a personal encounter initiated by an attorney, is not likely to involve pressure on the potential client for an immediate yes-or-no answer to the offer of representation. Thus, a printed advertisement is a means of conveying information about legal services that is more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney. Accordingly, the substantial interests that justified the ban on in-person solicitation upheld in Ohralik cannot justify the discipline imposed on appellant for the content of his advertisement.
Nor does the traditional justification for restraints on solicitation - the fear that lawyers will "stir up litigation" - justify the restriction imposed in this case. In evaluating this proffered justification, it is important to think about what it might mean to say that the State has an interest in preventing lawyers from stirring up litigation. It is possible to describe litigation itself as an evil that the State is entitled to combat: after all, litigation consumes vast quantities of social resources to produce little of tangible value but much discord and unpleasantness. "[A]s a litigant," Judge Learned Hand once observed, "I should dread a lawsuit beyond almost anything else short of sickness and death." L. Hand, The Deficiencies of Trials to Reach the Heart of the Matter, in Association of the Bar of the City of New York, Lectures on Legal Topics 89, 105 (1926).
But we cannot endorse the proposition that a lawsuit, as such, is an evil. Over the course of centuries, our society has settled upon civil litigation as a means for redressing grievances, resolving disputes, and vindicating rights when other means fail. There is no cause for consternation when a person who believes in good faith and on the basis of accurate information regarding his legal rights that he has suffered a legally cognizable injury turns to the courts for a remedy: "we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action." Bates v. State Bar of Arizona, 433 U.S., at 376 . That our citizens have access to their civil courts is not an evil to be regretted; rather, it is an attribute of our system of justice in which we ought to take pride. The State is not entitled to interfere with that access by denying its citizens accurate information about their legal rights. Accordingly, it is not sufficient justification for the discipline imposed on appellant that his truthful and nondeceptive advertising had a tendency to or did in fact encourage others to file lawsuits.
The State does not, however, argue that the encouragement of litigation is inherently evil, nor does it assert an interest in discouraging the particular form of litigation that appellant's advertising solicited. Rather, the State's position is that although appellant's advertising may itself have been harmless - may even have had the salutary effect of informing some persons of rights of which they would otherwise have been unaware - the State's prohibition on the use of legal advice and information in advertising by attorneys is a prophylactic rule that is needed to ensure that attorneys, in an effort to secure legal business for themselves, do not use false or misleading advertising to stir up meritless litigation against innocent defendants. Advertising by attorneys, the State claims, presents regulatory difficulties that are different in kind from those presented by other forms of advertising. Whereas statements about most consumer products are subject to verification, the indeterminacy of statements about law makes it impractical if not impossible to weed out accurate statements from those that are false or misleading. A prophylactic rule is therefore essential if the State is to vindicate its substantial interest in ensuring that its citizens are not encouraged to engage in litigation by statements that are at best ambiguous and at worst outright false.
The State's argument that it may apply a prophylactic rule to punish appellant notwithstanding that his particular advertisement has none of the vices that allegedly justify the rule is in tension with our insistence that restrictions involving commercial speech that is not itself deceptive be narrowly crafted to serve the State's purposes. See Central Hudson Gas & Electric, 447 U.S., at 565 , 569-571. Indeed, in In re R. M. J. we went so far as to state that "the States may not place an absolute prohibition on certain types of potentially misleading information . . . if the information also may be presented in a way that is not deceptive." The State's argument, then, must be that this dictum is incorrect - that there are some circumstances in which a prophylactic rule is the least restrictive possible means of achieving a substantial governmental interest. Cf. Ohralik v. Ohio State Bar Assn., 436 U.S., at 467 .
We need not, however, address the theoretical question whether a prophylactic rule is ever permissible in this area, for we do not believe that the State has presented a convincing case for its argument that the rule before us is necessary to the achievement of a substantial governmental interest. The State's contention that the problem of distinguishing deceptive and nondeceptive legal advertising is different in kind from the problems presented by advertising generally is unpersuasive.
The State's argument proceeds from the premise that it is intrinsically difficult to distinguish advertisements containing legal advice that is false or deceptive from those that are truthful and helpful, much more so than is the case with other goods or services. This notion is belied by the facts before us: appellant's statements regarding Dalkon Shield litigation were in fact easily verifiable and completely accurate. Nor is it true that distinguishing deceptive from nondeceptive claims in advertising involving products other than legal services is a comparatively simple and straightforward process. A brief survey of the body of case law that has developed as a result of the Federal Trade Commission's efforts to carry out its mandate under 5 of the Federal Trade Commission Act to eliminate "unfair or deceptive acts or practices in . . . commerce," 15 U.S.C. 45(a)(1), reveals that distinguishing deceptive from nondeceptive advertising in virtually any field of commerce may require resolution of exceedingly complex and technical factual issues and the consideration of nice questions of semantics. See, e. g., Warner-Lambert Co. v. FTC, 183 U.S. App. D.C. 230, 562 F.2d 749 (1977); National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157 (CA7 1977). In short, assessment of the validity of legal advice and information contained in attorneys' advertising is [471 U.S. 626, 646] not necessarily a matter of great complexity; nor is assessing the accuracy or capacity to deceive of other forms of advertising the simple process the State makes it out to be. The qualitative distinction the State has attempted to draw eludes us.
Were we to accept the State's argument in this case, we would have little basis for preventing the government from suppressing other forms of truthful and nondeceptive advertising simply to spare itself the trouble of distinguishing such advertising from false or deceptive advertising. The First Amendment protections afforded commercial speech would mean little indeed if such arguments were allowed to prevail. Our recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful. The value of the information presented in appellant's advertising is no less than that contained in other forms of advertising - indeed, insofar as appellant's advertising tended to acquaint persons with their legal rights who might otherwise be shut off from effective access to the legal system, it was undoubtedly more valuable than many other forms of advertising. Prophylactic restraints that would be [471 U.S. 626, 647] unacceptable as applied to commercial advertising generally are therefore equally unacceptable as applied to appellant's advertising. An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of potential clients.
IV.
The application of DR 2-101(B)'s restriction on illustrations in advertising by lawyers to appellant's advertisement fails for much the same reasons as does the application of the self-recommendation and solicitation rules. The use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech: restrictions on the use of visual media of expression in advertising must survive scrutiny under the Central Hudson test. Because the illustration for which appellant was disciplined is an accurate representation of the Dalkon Shield and has no features that are likely to deceive, mislead, or confuse the reader, the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means.
The text of DR 2-101(B) strongly suggests that the purpose of the restriction on the use of illustrations is to ensure that attorneys advertise "in a dignified manner." There is, of course, no suggestion that the illustration actually used by appellant was undignified; thus, it is difficult to see how the application of the rule to appellant in this case directly advances the State's interest in preserving the dignity of attorneys. More fundamentally, although the State undoubtedly has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State's desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights. Even if that were the case, we are unpersuaded that undignified behavior would tend to recur so often as to warrant a prophylactic rule. As we held in Carey v. Population Services International, 431 U.S. 678, 701 (1977), the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity.
In its arguments before this Court, the State has asserted that the restriction on illustrations serves a somewhat different purpose, akin to that supposedly served by the prohibition on the offering of legal advice in advertising. The use of illustrations in advertising by attorneys, the State suggests, creates unacceptable risks that the public will be misled, manipulated, or confused. Abuses associated with the visual content of advertising are particularly difficult to police, because the advertiser is skilled in subtle uses of illustrations to play on the emotions of his audience and convey false impressions. Because illustrations may produce their effects by operating on a subconscious level, the State argues, it will be difficult for the State to point to any particular illustration and prove that it is misleading or manipulative. Thus, once again, the State's argument is that its purposes can only be served through a prophylactic rule.
We are not convinced. The State's arguments amount to little more than unsupported assertions: nowhere does the State cite any evidence or authority of any kind for its contention that the potential abuses associated with the use of illustrations in attorneys' advertising cannot be combated by any means short of a blanket ban. Moreover, none of the State's arguments establish that there are particular evils associated with the use of illustrations in attorneys' advertisements. Indeed, because it is probably rare that decisions regarding consumption of legal services are based on a consumer's assumptions about qualities of the product that can be represented visually, illustrations in lawyer's advertisements will probably be less likely to lend themselves to material misrepresentations than illustrations in other forms of advertising.
Thus, acceptance of the State's argument would be tantamount to adoption of the principle that a State may prohibit the use of pictures or illustrations in connection with advertising of any product or service simply on the strength of the general argument that the visual content of advertisements may, under some circumstances, be deceptive or manipulative. But as we stated above, broad prophylactic rules may not be so lightly justified if the protections afforded commercial speech are to retain their force. We are not persuaded that identifying deceptive or manipulative uses of visual media in advertising is so intrinsically burden-some that the State is entitled to forgo that task in favor of the more convenient but far more restrictive alternative of a blanket ban on the use of illustrations. The experience of the FTC is, again, instructive. Although that agency has not found the elimination of deceptive uses of visual media in advertising to be a simple task, neither has it found the task an impossible one: in many instances, the agency has succeeded in identifying and suppressing visually deceptive advertising. See, e. g., FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965). See generally E. Kintner, A Primer on the Law of Deceptive Practices 158-173 (2d ed. 1978). Given the possibility of policing the use of illustrations in advertisements on a case-by-case basis, the prophylactic approach taken by Ohio cannot stand; hence, appellant may not be disciplined for his use of an accurate and nondeceptive illustration.
V
x x x x. Thus, in 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." In re R. M. J., 455 U.S., at 201 . Accord, Central Hudson Gas & Electric, 447 U.S., at 565 ; Bates v. State Bar of Arizona, 433 U.S., at 384 ; Virginia Pharmacy Bd., supra, at 772, n. 24.
We do not suggest that disclosure requirements do not implicate the advertiser's First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.
The State's application to appellant of the requirement that an attorney advertising his availability on a contingent-fee basis disclose that clients will have to pay costs even if their lawsuits are unsuccessful (assuming that to be the case) easily passes muster under this standard. Appellant's advertisement informed the public that "if there is no recovery, no legal fees are owed by our clients." The advertisement makes no mention of the distinction between "legal fees" and "costs," and to a layman not aware of the meaning of these terms of art, the advertisement would suggest that employing appellant would be a no-lose proposition in that his representation in a losing cause would come entirely free of charge. The assumption that substantial numbers of potential clients would be so misled is hardly a speculative one: it is a commonplace that members of the public are often unaware of the technical meanings of such terms as "fees" and "costs" - terms that, in ordinary usage, might well be virtually interchangeable. When the possibility of deception is as self-evident as it is in this case, we need not require [471 U.S. 626, 653] the State to "conduct a survey of the . . . public before it [may] determine that the [advertisement] had a tendency to mislead." FTC v. Colgate-Palmolive Co., 380 U.S., at 391 -392. The State's position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client's liability for costs is reasonable enough to support a requirement that information regarding the client's liability for costs be disclosed. x x x x” (End of Quote).
Shapero vs. Kentucky Bar Association, 486 U.S. 466 (1988)
In the case of Shapero vs. Kentucky Bar Association, 486 U.S. 466 (1988), 108 S.C. 1916 (1988), the U.S. Supreme Court held that truthful and nondeceptive targeted mail advertising directed to person who were known to have a specific legal problem cannot be prohibited.
The ethics codes of many states classify direct mail to non-clients who need a lawyer for a specific problem, such as a foreclosure action, as impermissible solicitation.
The U.S. Supreme Court however, held that direct mail was simply another form of advertising and did not present the same inherent dangers as in-person solicitation, and that a state, by means of discrete disclosures and other permissible regulation, can minimize the danger that false and misleading direct mail will be distributed without detection. (Haysworth, supra, p. 7).
A digest of the decision in Shapero is presented below:
Facts:
Petitioner, a member of the Kentucky Bar, applied to that State's Attorneys Advertising Commission for approval of a letter that he proposed to send "to potential clients who have had a foreclosure suit filed against them," which, inter alia, advised the client that "you may be about to lose your home," that "[f]ederal law may allow you to . . . ORDE[R] your creditor to STOP," that "you may call my office . . . for FREE information," and that "[i]t may surprise you what I may be able to do for you." Although the Commission did not find the letter false or misleading, it declined to approve it on the ground that a then-existing Kentucky Supreme Court Rule prohibited the mailing or delivery of written advertisements "precipitated by a specific event . . . involving or relating to the addressee . . . as distinct from the general public." Nevertheless, the Commission registered its view that the Rule violated the First Amendment under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, and recommended its amendment by the State Supreme Court. Petitioner then sought an advisory opinion as to the Rule's validity from the State Bar Association's Ethics Committee, which upheld the Rule as consistent with Rule 7.3 of the American Bar Association's Model Rules of Professional Conduct. On review of the advisory opinion, the State Supreme Court held that Zauderer compelled the State Rule's deletion, and replaced it with Rule 7.3, which also prohibits targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. The court did not specify either the precise infirmity in the State Rule, or how Rule 7.3 cured it.
Held:
The judgment is reversed, and the case is remanded. 726 S. W. 2d 299, reversed and remanded.
A majority of the Court held that a State may not, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. Such advertising is constitutionally protected commercial speech, which may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Moreover, this Court's lawyer advertising cases have never distinguished among various modes of written advertising to the general public, as is recognized by Rule 7.3's exemption for advertising "distributed generally to persons not known to need [the particular] legal services . . ., but who are so situated that they might in general find such services useful." The court below disapproved petitioner's letter solely on the basis of its failure to qualify for this exemption, analogizing to Ohralik v. Ohio State Bar Assn., 436 U.S. 447, for the proposition that targeted, direct-mail solicitation by a trained lawyer to a potential client "overwhelmed" by his legal troubles and therefore having an "impaired capacity for good judgment" creates a serious potential for undue influence. However, respondent's reliance on Ohralik, which held that a State could categorically ban all in-person solicitation, is misplaced, since the two factors underlying that decision - the strong possibility of improper lawyer conduct and the improbability of effective regulation - are much less a risk in the targeted, direct-mail solicitation context. The recipient of such advertising is not faced with the coercive presence of a trained advocate or the pressure for an immediate yes-or-no answer to the representation offer, but can simply put the letter aside to be considered later, ignored, or discarded. Moreover, although a personalized letter does present increased risks of isolated abuses or mistakes, these can be regulated and minimized by requiring the lawyer to file the letter with a state agency having authority to supervise mailings and penalize actual abuses. Scrutiny of targeted solicitation letters will not be appreciably less reliable than scrutiny of other advertisements, since the reviewing agency can require the lawyer to prove or verify any fact stated or explain how it was discovered, or require that the letter be labeled as an advertisement or that it tell the reader how to report inaccurate or misleading matters. That an agency reviewing such letters might have more work than one that does not simply does not outweigh the importance of the free flow of commercial information.
Three justices opined that although the validity of Rule 7.3 does not turn on whether petitioner's letter itself exhibited any of the evils at which the Rule was directed, respondent's contention that the letter is particularly overreaching, and therefore unworthy of First Amendment protection, must be addressed since the Amendment's overbreadth doctrine does not apply to professional advertising.
However, although the letter's liberal use of underscored, uppercase letters and its inclusion of subjective predictions of client satisfaction might catch the recipient's attention more than would a bland statement of purely objective facts in small type, the letter presents no risk of overreaching comparable to that of a lawyer engaged in face-to-face solicitation. In light of the First Amendment's protection, [486 U.S. 466, 468] a State may claim no substantial interest in restricting truthful and nondeceptive lawyer solicitations to those least likely to be read by the recipient.
Moreover, the State may not absolutely ban certain types of potentially misleading information if the information may also be presented in a nondeceptive way, or impose a more particularized restriction, unless it asserts, as respondent has not done in this case, a valid substantial interest that such a restriction would directly advance. Although a letter may be so misleading as to warrant restriction if it unduly emphasizes trivial or relatively uninformative facts or offers overblown assurances of client satisfaction, respondent has not argued such defects here. Such arguments may be raised and considered on remand.
A detailed quotation of the ratio decidendi of the U.S. Supreme Court in Shapiro is presented below:
xxxx. This case presents the issue whether a State may, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.
I
In 1985, petitioner, a member of Kentucky's integrated Bar Association, see Ky. Sup. Ct. Rule 3.030 (1988), applied to the Kentucky Attorneys Advertising Commission 1 for approval of a letter that he proposed to send "to potential clients who have had a foreclosure suit filed against them." The proposed letter read as follows:
"It has come to my attention that your home is being foreclosed on. If this is true, you may be about to lose your home. Federal law may allow you to keep your home by ORDERING your creditor [sic] to STOP and give you more time to pay them.
"You may call my office anytime from 8:30 a. m. to 5:00 p. m. for FREE information on how you can keep your home.
"Call NOW, don't wait. It may surprise you what I may be able to do for you. Just call and tell me that you got this letter. Remember it is FREE, there is NO charge for calling."
The Commission did not find the letter false or misleading. Nevertheless, it declined to approve petitioner's proposal on the ground that a then-existing Kentucky Supreme Court Rule prohibited the mailing or delivery of written advertisements "precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct from the general public." Ky. Sup. Ct. Rule 3.135(5)(b)(i). The Commission registered its view that Rule 3.135(5)(b)(i)'s ban on targeted, direct-mail advertising violated the First Amendment - specifically the principles enunciated in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) - and recommended that the Kentucky Supreme Court amend its Rules. Pursuing the Commission's suggestion, petitioner petitioned the Committee on Legal Ethics (Ethics Committee) of the Kentucky Bar Association for an advisory opinion as to the Rule's validity. See Ky. Sup. Ct. Rule 3.530. Like the Commission, the Ethics Committee, in an opinion formally adopted by the Board of Governors of the Bar Association, did not find the proposed letter false or misleading, but nonetheless upheld Rule 3.135(5)(b) (i) on the ground that it was consistent with Rule 7.3 of the American Bar Association's Model Rules of Professional Conduct (1984).
On review of the Ethics Committee's advisory opinion, the Kentucky Supreme Court felt "compelled by the decision in Zauderer to order [Rule 3.135(5)(b)(i)] deleted," 726 S. W. 2d 299, 300 (1987), and replaced it with the ABA's Rule 7.3, which provides in its entirety:
"`A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in-person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term `solicit' includes contact in person, by telephone or [486 U.S. 466, 471] telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.'" 726 S. W. 2d, at 301 (quoting ABA, Model Rule of Professional Conduct 7.3 (1984)).
The court did not specify either the precise infirmity in Rule 3.135(5)(b)(i) or how Rule 7.3 cured it. Rule 7.3, like its predecessor, prohibits targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. We granted certiorari to resolve whether such a blanket prohibition is consistent with the First Amendment, made applicable to the States through the Fourteenth Amendment, and now reverse.
II
Lawyer advertising is in the category of constitutionally protected commercial speech. See Bates v. State Bar of Arizona, 433 U.S. 350 (1977). The First Amendment principles governing state regulation of lawyer solicitations for pecuniary gain are by now familiar: "Commercial speech that is not false or deceptive and does not concern unlawful activities . . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 566 (1980). Since state regulation of commercial speech "may extend only as far as the interest it serves," Central Hudson, supra, at 565, state rules that are designed to prevent the "potential for deception and confusion . . . may be no broader than reasonably necessary to prevent the" perceived evil. In re R. M. J., 455 U.S. 191, 203 (1982).
In Zauderer, application of these principles required that we strike an Ohio rule that categorically prohibited solicitation of legal employment for pecuniary gain through advertisements containing information or advice, even if truthful and nondeceptive, regarding a specific legal problem. We distinguished written advertisements containing such information or advice from in-person solicitation by lawyers for profit, which we held in Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), a State may categorically ban. The "unique features of in-person solicitation by lawyers [that] justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain," we observed, are "not present" in the context of written advertisements.
Our lawyer advertising cases have never distinguished among various modes of written advertising to the general public. See, e. g., Bates, supra (newspaper advertising); id., at 372, n. 26 (equating advertising in telephone directory with newspaper advertising); In re R. M. J., supra (mailed announcement cards treated same as newspaper and telephone directory advertisements). Thus, Ohio could no more prevent Zauderer from mass-mailing to a general population his offer to represent women injured by the Dalkon Shield than it could prohibit his publication of the advertisement in local newspapers. Similarly, if petitioner's letter is neither false nor deceptive, Kentucky could not constitutionally prohibit him from sending at large an identical letter opening with the query, "Is your home being foreclosed on?," rather than his observation to the targeted individuals that "It has come to my attention that your home is being foreclosed on." The drafters of Rule 7.3 apparently appreciated as much, for the Rule exempts from the ban "letters addressed or advertising circulars distributed generally to persons . . . who are so situated that they might in general find such services useful."
The court below disapproved petitioner's proposed letter solely because it targeted only persons who were "known to need [the] legal services" offered in his letter, 726 S. W. 2d, at 301, rather than the broader group of persons "so situated that they might in general find such services useful." Generally, unless the advertiser is inept, the latter group would include members of the former. The only reason to disseminate an advertisement of particular legal services among those persons who are "so situated that they might in general find such services useful" is to reach individuals who actually "need legal services of the kind provided [and advertised] by the lawyer." But the First Amendment does not permit a ban on certain speech merely because it is more efficient; the State may not constitutionally ban a particular letter on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable.
The court below did not rely on any such theory. See also Brief for Respondent (conceding that "targeted direct mail advertising" - as distinguished from "solicitation" - "is constitutionally protected"). Rather, it concluded that the State's blanket ban on all targeted, direct-mail solicitation was permissible because of the "serious potential for abuse inherent in direct solicitation by lawyers of potential clients known to need specific legal services." By analogy to Ohralik, the court observed:
"Such solicitation subjects the prospective client to pressure from a trained lawyer in a direct personal way. It is entirely possible that the potential client may feel overwhelmed by the basic situation which caused the need for the specific legal services and may have seriously impaired capacity for good judgment, sound reason and a natural protective self-interest. Such a condition is full of the possibility of undue influence, overreaching and intimidation."
Of course, a particular potential client will feel equally "overwhelmed" by his legal troubles and will have the same "impaired capacity for good judgment" regardless of whether a lawyer mails him an untargeted letter or exposes him to a newspaper advertisement - concededly constitutionally protected activities - or instead mails a targeted letter. The relevant inquiry is not whether there exist potential clients whose "condition" makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility. Cf. Ohralik, supra, at 470 ("What is objectionable about Ohralik's behavior here is not so much that he solicited business for himself, but rather the circumstances in which he performed that solicitation and the means by which he accomplished it").
Thus, respondent's facile suggestion that this case is merely "Ohralik in writing" misses the mark. Brief for Respondent 10. In assessing the potential for overreaching and undue influence, the mode of communication makes all the difference. Our decision in Ohralik that a State could categorically ban all in-person solicitation turned on two factors. First was our characterization of face-to-face solicitation as "a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud." Zauderer, 471 U.S., at 641 . See Ohralik, 436 U.S., at 457 -458, 464-465. Second, "unique . . . difficulties," would frustrate any attempt at state regulation of in-person solicitation short of an absolute ban because such solicitation is "not visible or otherwise open to public scrutiny." Ohralik, 436 U.S., at 466 ("[I]n-person solicitation would be virtually immune to effective oversight and regulation by the State or by the legal profession"). Targeted, direct-mail solicitation is distinguishable from the in-person solicitation in each respect.
Like print advertising, petitioner's letter - and targeted, direct-mail solicitation generally - "poses much less risk of overreaching or undue influence" than does in-person solicitation, Zauderer, 471 U.S., at 642 . Neither mode of written communication involves "the coercive force of the personal presence of a trained advocate" or the "pressure on the potential client for an immediate yes-or-no answer to the offer of representation." Ibid. Unlike the potential client with a badgering advocate breathing down his neck, the recipient of a letter and the "reader of an advertisement . . . can `effectively avoid further bombardment of [his] sensibilities simply by averting [his] eyes,'" Ohralik, supra, at 465, (quoting Cohen v. California, 403 U.S. 15, 21 (1971). A letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded. In short, both types of written solicitation "conve[y] information about legal services [by means] that [are] more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney." Zauderer, supra, at 642. Nor does a targeted letter invade the recipient's privacy any more than does a substantively identical letter mailed at large. The invasion, if any, occurs when the lawyer discovers the recipient's legal affairs, not when he confronts the recipient with the discovery.
Admittedly, a letter that is personalized (not merely targeted) to the recipient presents an increased risk of deception, intentional or inadvertent. It could, in certain circumstances, lead the recipient to overestimate the lawyer's familiarity with the case or could implicitly suggest that the recipient's legal problem is more dire than it really is. See Brief for ABA as Amicus Curiae 9. Similarly, an inaccurately targeted letter could lead the recipient to believe she has a legal problem that she does not actually have or, worse yet, could offer erroneous legal advice. See, e. g., Leoni v. State Bar of California, 39 Cal. 3d 609, 619-620, 704 P.2d 183, 189 (1985), summarily dism'd, 475 U.S. 1001 (1986).
But merely because targeted, direct-mail solicitation presents lawyers with opportunities for isolated abuses or mistakes does not justify a total ban on that mode of protected commercial speech. See In re R. M. J., 455 U.S., at 203. The State can regulate such abuses and minimize mistakes through far less restrictive and more precise means, the most obvious of which is to require the lawyer to file any solicitation letter with a state agency, id., at 206, giving the State ample opportunity to supervise mailings and penalize actual abuses. The "regulatory difficulties" that are "unique" to in-person lawyer solicitation, Zauderer, supra, at 641 - solicitation that is "not visible or otherwise open to public scrutiny" and for which it is "difficult or impossible to obtain reliable proof of what actually took place," Ohralik, supra, at 466 - do not apply to written solicitations. The court below offered no basis for its "belie[f] [that] submission of a blank form letter to the Advertising Commission [does not] provid[e] a suitable protection to the public from overreaching, intimidation or misleading private targeted mail solicitation." 726 S. W. 2d, at 301. Its concerns were presumably those expressed by the ABA House of Delegates in its comment to Rule 7.3:
"State lawyer discipline agencies struggle for resources to investigate specific complaints, much less for those necessary to screen lawyers' mail solicitation material. Even if they could examine such materials, agency staff members are unlikely to know anything about the lawyer or about the prospective client's underlying problem. Without such knowledge they cannot determine whether the lawyer's representations are misleading." ABA, Model Rules of Professional Conduct, pp. 93-94 (1984).
The record before us furnishes no evidence that scrutiny of targeted solicitation letters will be appreciably more burdensome or less reliable than scrutiny of advertisements. See Bates, 433 U.S., at 379 ; id., at 387(objecting to "enormous new regulatory burdens called for by" Bates). As a general matter, evaluating a targeted advertisement does not require specific information about the recipient's identity and legal problems any more than evaluating a newspaper advertisement requires like information about all readers. If the targeted letter specifies facts that relate to particular recipients (e. g., "It has come to my attention that your home is being foreclosed on"), the reviewing agency has innumerable options to minimize mistakes. It might, for example, require the lawyer to prove the truth of the fact stated (by supplying copies of the court documents or material that led the lawyer to the fact); it could require the lawyer to explain briefly how he or she discovered the fact and verified its accuracy; or it could require the letter to bear a label identifying it as an advertisement, see In re R. M. J., supra, [486 U.S. 466, 478], or directing the recipient how to report inaccurate or misleading letters. To be sure, a state agency or bar association that reviews solicitation letters might have more work than one that does not. But "[o]ur recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful." Zauderer, 471 U.S., at 646 .
III
The validity of Rule 7.3 does not turn on whether petitioner's letter itself exhibited any of the evils at which Rule 7.3 was directed. See Ohralik, 436 U.S., at 463 -464, 466. Since, however, the First Amendment overbreadth doctrine does not apply to professional advertising, see Bates, 433 U.S., at 379 -381, we address respondent's contentions that petitioner's letter is particularly overreaching, and therefore unworthy of First Amendment protection. In that regard, respondent identifies two features of the letter before us that, in its view, coalesce to convert the proposed letter into "high pressure solicitation, overbearing solicitation," Brief for Respondent 20, which is not protected. First, respondent asserts that the letter's liberal use of underscored, uppercase letters (e. g., "Call NOW, don't wait"; "it is FREE, there is NO charge for calling") "fairly shouts at the recipient . . . that he should employ Shapero." Id., at 19. See also Brief in Opposition 11 ("Letters of solicitation which shout commands to the individual, targeted recipient in words in underscored capitals are of a different order from advertising and are subject to proscription"). Second, respondent objects that the letter contains assertions (e. g., "It may surprise you what I may be able to do for you") that "stat[e] no affirmative or objective fact," but constitute "pure salesman puffery, enticement for the unsophisticated, which commits Shapero to nothing."
The pitch or style of a letter's type and its inclusion of subjective predictions of client satisfaction might catch the recipient's attention more than would a bland statement of purely objective facts in small type. But a truthful and non-deceptive letter, no matter how big its type and how much it speculates can never "shou[t] at the recipient" or "gras[p] him by the lapels," as can a lawyer engaging in face-to-face solicitation. The letter simply presents no comparable risk of overreaching. And so long as the First Amendment protects the right to solicit legal business, the State may claim no substantial interest in restricting truthful and nondeceptive lawyer solicitations to those least likely to be read by the recipient. Moreover, the First Amendment limits the State's authority to dictate what information an attorney may convey in soliciting legal business. "[T]he States may not place an absolute prohibition on certain types of potentially misleading information . . . if the information may also be presented in a way that is not deceptive," unless the State "assert[s] a substantial interest" that such a restriction would directly advance. In re R. M. J., 455 U.S., at 203 . Nor may a State impose a more particularized restriction without a similar showing. Aside from the interests that we have already rejected, respondent offers none.
To be sure, a letter may be misleading if it unduly emphasizes trivial or "relatively uninformative fact[s]," In re R. M. J., supra, at 205 (lawyer's statement, "in large capital letters, that he was a member of the Bar of the Supreme Court of the United States"), or offers overblown assurances of client satisfaction, cf. In re Von Wiegen, 63 N. Y. 2d 163, 179, 470 N. E. 2d 838, 847 (1984) (solicitation letter to victims of massive disaster informs them that "it is [the lawyer's] opinion that the liability of the defendants is clear"), cert. denied, 472 U.S. 1007 (1985); Bates, supra, at 383-384 ("[A]dvertising claims as to the quality of legal services . . . may be so likely to be misleading as to warrant restriction"). Respondent does not argue before us that petitioner's letter was [486 U.S. 466, 480] misleading in those respects. Nor does respondent contend that the letter is false or misleading in any other respect. Of course, respondent is free to raise, and the Kentucky courts are free to consider, any such argument on remand.
The judgment of the Supreme Court of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Xxxx”. (End of Quote).
It should be noted that at the time Shapero was decided by the U.S. Supreme Court, the ethics codes in approximately half of the states prohibited direct mail targeted advertising.
Several states have amended their ethics codes since the Shapero opinion. (Haysworth, supra, page 7, Footnote No. 10).
Peel vs. Attorney Registration and Disciplinary
Commission of Illinois, 496 U.S. 91.
In the case of Peel vs. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990), the US Supreme Court held that a state cannot prohibit a lawyer from including on his or her letterhead a statement that the lawyer is certified as a specialist in a particular field by demanding, objective, and verifiable criteria for certification, even though the state where the lawyer is admitted to practice does not have specialization plan.
A state can, however, have criteria for screening certifying organizations and may constitutionally require reasonable disclosures and disclaimers about the certifying organizations or standards for the particular specialty in order to prevent the specialty designation from being misleading.
This case necessitated the revision of Disciplinary Rule 2-105 (A) (3) of the ABA Model Code of Professional Responsibility and Rule 7.4 (c) of the ABA Model Rules of Professional Conduct in the bar ethics codes of most states. (Haysworth, supra, pp. 7-8).
Petitioner Peel was licensed to practice law in Illinois and other States.
He also had a "Certificate in Civil Trial Advocacy" from the National Board of Trial Advocacy (NBTA), which offered periodic certification to applicants who had met exacting standards of experience and competence in trial work.
The Administrator of respondent Attorney Registration and Disciplinary Commission of Illinois filed a complaint alleging that Peel, by using a professional letterhead that stated his name, followed by the indented notation "Certified Civil Trial Specialist By the [NBTA]" and the unindented notation "Licensed: Illinois, Missouri, Arizona," was, inter alia, holding himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility.
The Commission recommended censure. The State Supreme Court adopted the Commission's recommendation, concluding that the First Amendment did not protect the letterhead because the public could confuse the State and NBTA as the sources of his license to practice and of his certification, and because the certification could be read as a claim of superior quality.
The US Supreme Court reversed the judgment of the Illinois State Supreme Court and concluded that a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by NBTA:
(a) Truthful advertising related to lawful activities is entitled to First Amendment protections. Although a State may prohibit misleading advertising entirely, it may not place an absolute prohibition on potentially misleading information if the information may also be presented in a way that is not deceptive. In re R. M. J., 455 U.S. 191 .
(b) Peel's letterhead is not actually or inherently misleading. The facts stated on his letterhead are true and verifiable, and there has been no finding of actual deception or misunderstanding. The state court's focus on the implied "claim" as to the "quality" of Peel's legal services confuses the distinction between statements of opinion or quality and statements of objective facts that may support an inference of quality. Even if NBTA standards are not well known, there is no evidence that [496 U.S. 91, 92] consumers, such as those in States with certification plans, are misled if they do not inform themselves of the precise standards of certification. There also has been no finding, and there is no basis for the belief, that Peel's representation generally would be associated with governmental action. The public understands that licenses are issued by governmental authorities and that many certificates are issued by private organizations, and it is unlikely that the public necessarily would confuse certification as a "specialist" by a national organization with formal state recognition. Moreover, other States that have evaluated lawyers' advertisements of NBTA certifications have concluded that they were not misleading and were protected by the First Amendment.
(c) The State's interest in avoiding any potential that Peel's statements might mislead is insufficient to justify a categorical ban on their use; nor does the State Supreme Court's inherent authority to supervise its own bar insulate its judgment from this Court's review for constitutional infirmity. The need for a complete prophylactic rule against any claim of certification or specialty is undermined by the fact that the same risk of deception is posed by specified designations - for "Registered Patent Attorney" and "Proctor in Admiralty" - that are permitted under Rule 2-105(a). Such information facilitates the consumer's access to legal services and better serves the administration of justice. To the extent that such statements could confuse consumers, the State might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty.
An expanded presentation of the ratio decidendi of the Peel decision is quoted below:
The Illinois Supreme Court publicly censured petitioner because his letterhead states that he is certified as a civil trial specialist by the National Board of Trial Advocacy. We [496 U.S. 91, 94] granted certiorari to consider whether the statement on his letterhead is protected by the First Amendment. 492 U.S. 917 (1989).
I
This case comes to us against a background of growing interest in lawyer certification programs. In the 1973 Sonnett Memorial Lecture, then Chief Justice Warren E. Burger advanced the proposition that specialized training and certification of trial advocates is essential to the American system of justice. That proposition was endorsed by a number of groups of lawyers who were instrumental in establishing the National Board of Trial Advocacy (NBTA) in 1977.
Since then, NBTA has developed a set of standards and procedures for periodic certification of lawyers with experience and competence in trial work. Those standards, which have been approved by a board of judges, scholars, and practitioners, are objective and demanding. They require specified experience as lead counsel in both jury and nonjury trials, participation in approved programs of continuing legal education, a demonstration of writing skills, and the successful completion of a day-long examination. Certification expires in five years unless the lawyer again demonstrates his or her continuing qualification. 4
NBTA certification has been described as a "highly-structured" and "arduous process that employs a wide range of assessment methods." Task Force on Lawyer Competence, Report With Findings and Recommendations to the Conference of Chief Justices, Publication No. NCSC-021, pp. 33-34 (May 26, 1982). After reviewing NBTA's procedures, the Supreme Court of Minnesota found that "NBTA applies a rigorous and exacting set of standards and examinations on a national scale before certifying a lawyer as a trial [496 U.S. 91, 96] specialist." In re Johnson, 341 N. W. 2d 282, 283 (1983). The Alabama Supreme Court similarly concluded that "a certification of specialty by NBTA would indicate a level of expertise with regard to trial advocacy in excess of the level of expertise required for admission to the bar generally." Ex parte Howell, 487 So.2d 848, 851 (1986).
II
Petitioner practices law in Edwardsville, Illinois. He was licensed to practice in Illinois in 1968, in Arizona in 1979, and in Missouri in 1981. He has served as president of the Madison County Bar Association and has been active in both national and state bar association work. 5 He has tried to verdict over 100 jury trials and over 300 nonjury trials, and has participated in hundreds of other litigated matters that were settled. NBTA issued petitioner a "Certificate in Civil Trial Advocacy" in 1981, renewed it in 1986, and listed him in its 1985 Directory of "Certified Specialists and Board Members."
Since 1983 petitioner's professional letterhead has contained a statement referring to his NBTA certification and to the three States in which he is licensed. It appears as follows:
"Gary E. Peel "Certified Civil Trial Specialist "By the National Board of Trial Advocacy "Licensed: Illinois, Missouri, Arizona."
In 1987, the Administrator of the Attorney Registration and Disciplinary Commission of Illinois (Commission) filed a complaint alleging that petitioner, by use of this letterhead, was publicly holding himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. That Rule provides:
A lawyer or law firm may specify or designate any area or field of law in which he or its partners concentrates or limits his or its practice. Except as set forth in Rule 2-105(a), no lawyer may hold himself out as `certified' or a `specialist.
The complaint also alleged violations of Rule 2-101(b), which requires that a lawyer's public "communication shall contain all information necessary to make the communication not misleading and shall not contain any false or misleading statement or otherwise operate to deceive," and of Rule 1-102 (a)(1), which generally subjects a lawyer to discipline for violation of any Rule of the Code of Professional Responsibility. Disciplinary Rules 2-101(b), 1-102(a)(1) (1988).
After a hearing, the Commission recommended censure for a violation of Rule 2-105(a)(3). It rejected petitioner's First Amendment claim that a reference to a lawyer's certification as a specialist was a form of commercial speech that could not [496 U.S. 91, 98] be "`subjected to blanket suppression.'" Report of the Hearing Panel, App. C to Pet. for Cert. 19a. Although the Commission's "Findings of Facts" did not contain any statement as to whether petitioner's representation was deceptive, its "Conclusion of Law" ended with the brief statement that petitioner,
"by holding himself out, on his letterhead as `Gary E. Peel, Certified Civil Trial Specialist - By the National Board of Trial Advocacy,' is in direct violation of the above cited Rule [2-105(a)(3)].
"We hold it is `misleading' as our Supreme Court has never recognized or approved any certification process."
The Illinois Supreme Court adopted the Commission's recommendation for censure. It held that the First Amendment did not protect petitioner's letterhead because the letterhead was misleading in three ways. First, the State Supreme Court concluded that the juxtaposition of the reference to petitioner as "certified" by NBTA and the reference to him as "licensed" by Illinois, Missouri, and Arizona "could" mislead the general public into a belief that petitioner's authority to practice in the field of trial advocacy was derived solely from NBTA certification. It thus found that the statements on the letterhead impinged on the court's exclusive authority to license its attorneys because they failed to distinguish voluntary certification by an unofficial group from licensure by an official organization. In re Peel, 126 Ill. 2d 397, 405-406, 534 N. E. 980, 983-984 (1989).
Second, the court characterized the claim of NBTA certification as "misleading because it tacitly attests to the qualifications of [petitioner] as a civil trial advocate." Id., at 406, 534 N. E. 2d, at 984. The court noted confusion in the parties' descriptions of NBTA's requirements, 9 but did not [496 U.S. 91, 99] consider whether NBTA certification constituted reliable, verifiable evidence of petitioner's experience as a civil trial advocate. Rather, the court reasoned that the statement was tantamount to an implied claim of superiority of the quality of petitioner's legal services and therefore warranted restriction under our decision in In re R. M. J., 455 U.S. 191 (1982). 126 Ill. 2d, at 406, 534 N. E. 2d, at 984.
Finally, the court reasoned that use of the term "specialist" was misleading because it incorrectly implied that Illinois had formally authorized certification of specialists in trial advocacy. The court concluded that the conjunction of the reference to being a specialist with the reference to being licensed implied that the former was the product of the latter. Id., at 410, 534 N. E. 2d, at 986. Concluding that the letterhead was inherently misleading for these reasons, the court upheld the blanket prohibition of Rule 2-105(a) under the First Amendment.
III
The Illinois Supreme Court considered petitioner's letterhead as a form of commercial speech governed by the "constitutional limitations on the regulation of lawyer advertising." 126 Ill. 2d, at 402, 534 N. E. 2d, at 982. The only use of the letterhead in the record is in petitioner's correspondence with the Commission itself. Petitioner contends that, absent evidence of any use of the letterhead to propose commercial transactions with potential clients, the statement should be accorded the full protections of noncommercial speech. However, he also acknowledges that "this case can and should be decided on the narrower ground that even if it is commercial speech it cannot be categorically prohibited." We agree that the question to be decided is whether a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by NBTA.
In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), this Court decided that advertising by lawyers was a form of commercial speech entitled to protection by the First Amendment. Justice Powell summarized the standards applicable to such claims for the unanimous Court in In re R. M. J., 455 U.S., at 203 :
"Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e. g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive. . . .
"Even when a communication is not misleading, the State retains some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served."
In this case we must consider whether petitioner's statement was misleading and, even if it was not, whether the potentially misleading character of such statements creates a state interest sufficiently substantial to justify a categorical ban on their use.
The facts stated on petitioner's letterhead are true and verifiable. It is undisputed that NBTA has certified petitioner as a civil trial specialist and that three States have licensed him to practice law. There is no contention that any [496 U.S. 91, 101] potential client or person was actually misled or deceived by petitioner's stationery. Neither the Commission nor the State Supreme Court made any factual finding of actual deception or misunderstanding, but rather concluded, as a matter of law, that petitioner's claims of being "certified" as a "specialist" were necessarily misleading absent an official state certification program. Notably, although petitioner was originally charged with a violation of Disciplinary Rule 2-101(b), which aims at misleading statements by an attorney, his letterhead was not found to violate this rule.
In evaluating petitioner's claim of certification, the Illinois Supreme Court focused not on its facial accuracy, but on its implied claim "as to the quality of [petitioner's] legal services," and concluded that such a qualitative claim "`might be so likely to mislead as to warrant restriction.'" 126 Ill. 2d, at 406, 534 N. E. 2d, at 984 (quoting In re R. M. J., 455 U.S., at 201 ). This analysis confuses the distinction between statements of opinion or quality and statements of objective facts that may support an inference of quality. A lawyer's certification by NBTA is a verifiable fact, as are the predicate requirements for that certification. Measures of trial experience and hours of continuing education, like information about what schools the lawyer attended or his or her bar activities, are facts about a lawyer's training and practice. A claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, cf. In re R. M. J., 455 U.S., at 201, but is simply a fact, albeit one with multiple predicates, from which a consumer may or may not draw an inference of the likely quality of an attorney's work in a given area of practice.
We must assume that some consumers will infer from petitioner's statement that his qualifications in the area of civil trial advocacy exceed the general qualifications for admission to a state bar. Thus if the certification had been issued by an organization that had made no inquiry into petitioner's fitness, or by one that issued certificates indiscriminately for a price, the statement, even if true, could be misleading. In this case, there is no evidence that a claim of NBTA certification suggests any greater degree of professional qualification than reasonably may be inferred from an evaluation of its rigorous requirements. Much like a trademark, the strength of a certification is measured by the quality of the organization for which it stands. The Illinois Supreme Court merely notes some confusion in the parties' explanation of one of those requirements. See n. 9, supra. We find NBTA standards objectively clear, and, in any event, do not see why the degree of uncertainty identified by the State Supreme Court would make the letterhead inherently misleading to a consumer. A number of other States have their own certification plans and expressly authorize references to specialists and certification, 11 but there is no evidence that the consumers [496 U.S. 91, 103] in any of these States are misled if they do not inform themselves of the precise standards under which claims of certification are allowed.
Nor can we agree with the Illinois Supreme Court's somewhat contradictory fears that juxtaposition of the references to being "certified" as a "specialist" with the identification of the three States in which petitioner is "licensed" conveys, on the one hand, the impression that NBTA had the authority to grant those licenses and, on the other, that the NBTA certification was the product of official state action. The separate character of the two references is plain from their texts: one statement begins with the verb "[c]ertified" and identifies the source as the "National Board of Trial Advocacy," while the second statement begins with the verb "[l]icensed" and identifies States as the source of licensure. The references are further distinguished by the fact that one is indented below petitioner's name while the other uses the same margin as his name. There has been no finding that any person has associated certification with governmental action - state or federal - and there is no basis for belief that petitioner's representation generally would be so construed.
We are satisfied that the consuming public understands that licenses - to drive cars, to operate radio stations, to sell liquor - are issued by governmental authorities and that a host of certificates - to commend job performance, to convey an educational degree, to commemorate a solo flight or a hole in one - are issued by private organizations. The dictionary definition of "certificate," from which the Illinois Supreme Court quoted only excerpts, comports with this common understanding:
"[A] document issued by a school, a state agency, or a professional organization certifying that one has satisfactorily completed a course of studies, has passed a qualifying examination, or has attained professional standing in a given field and may officially practice or hold a position in that field." Webster's Third New International Dictionary 367 (1986 ed.) (emphasis added to portions omitted from 126 Ill. 2d, at 405, 534 N. E. 2d, at 984).
The court relied on a similarly cramped definition of "specialist," turning from Webster's - which contains no suggestion of state approval of "specialists" - to the American Bar Association's Comment to Model Rule 7.4, which prohibits a lawyer from stating or implying that he is a "specialist" except for designations of patent, admiralty, or state-designated specialties. The Comment to the Rule concludes that the terms "specialist" and "specialty" "have acquired a secondary meaning implying formal recognition as a specialist and, therefore, use of these terms is misleading" in States that have no formal certification procedures. ABA Model Rule of Professional Conduct 7.4 and Comment (1989). We appreciate the difficulties that evolving standards for attorney certification present to national organizations like the ABA. However, it seems unlikely that petitioner's statement about his certification as a "specialist" by an identified national organization necessarily would be confused with formal state recognition. The Federal Trade Commission, which has a long history of reviewing claims of deceptive advertising, fortifies this conclusion with its observation that "one can readily think of numerous other claims of specialty - from `air conditioning specialist' in the realm of home repairs to `foreign car specialist' in the realm of automotive repairs - that cast doubt on the notion that the public would automatically mistake a claim of specialization for a claim of formal recognition by the State." Brief for Federal Trade Commission as Amicus Curiae.
We reject the paternalistic assumption that the recipients of petitioner's letterhead are no more discriminating than the audience for children's television. Cf. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74 (1983). 13 The two [496 U.S. 91, 106] state courts that have evaluated lawyers' advertisements of their certifications as civil trial specialists by NBTA have concluded that the statements were not misleading or deceptive on their face, and that, under our recent decisions, they were protected by the First Amendment. Ex parte Howell, 487 So.2d 848 (Ala. 1986); In re Johnson, 341 N. W. 2d 282 (Minn. 1983). Given the complete absence of any evidence of deception in the present case, we must reject the contention that petitioner's letterhead is actually misleading.
IV
Even if petitioner's letterhead is not actually misleading, the Commission defends Illinois' categorical prohibition against lawyers' claims of being "certified" or a "specialist" on the assertion that these statements are potentially misleading. In the Commission's view, the State's interest in avoiding any possibility of misleading some consumers with such communications is so substantial that it outweighs the cost of providing other consumers with relevant information about lawyers who are certified as specialists. See Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 566 (1980).
We may assume that statements of "certification" as a "specialist," even though truthful, may not be understood fully by some readers. However, such statements pose no greater potential of misleading consumers than advertising admission to "Practice before: The United States Supreme Court," In re R. M. J., 455 U.S. 191 (1982), of exploiting the audience of a targeted letter, Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988), or of confusing a reader with an accurate illustration, Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). In this case, as in those, we conclude that the particular state rule restricting lawyers' advertising is "broader than reasonably necessary to prevent the' perceived evil." Shapero, 486 U.S., at 472 , (quoting In re R. M. J., 455 U.S., at 203 ). Cf. Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978) (restricting in-person solicitation). The need for a complete prophylactic against any claim of specialty is undermined by the fact that use of titles such as "Registered Patent Attorney" and "Proctor in Admiralty," which are permitted under Rule 2-105(a)'s exceptions, produces the same risk of deception.
xxxx. The Commission's authority is necessarily constrained by the First Amendment to the Federal Constitution, and specifically by the principle that disclosure of truthful, relevant information is more likely to make a positive contribution to decisionmaking than is concealment of such information. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); [496 U.S. 91, 109] Central Hudson Gas & Electric Corp., 447 U.S., at 562 . Even if we assume that petitioner's letterhead may be potentially misleading to some consumers, that potential does not satisfy the State's heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information to the public. In re R. M. J., 455 U.S., at 203 .
The presumption favoring disclosure over concealment is fortified in this case by the separate presumption that members of a respected profession are unlikely to engage in practices that deceive their clients and potential clients. As we noted in Bates v. State Bar of Arizona, 433 U.S., at 379 :
"It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort."
We do not ignore the possibility that some unscrupulous attorneys may hold themselves out as certified specialists when there is no qualified organization to stand behind that certification. A lawyer's truthful statement that "XYZ Board" has "certified" him as a "specialist in admiralty law" would not necessarily be entitled to First Amendment protection if the certification were a sham. States can require an attorney who advertises "XYZ certification" to demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law. There has been no showing - indeed no suggestion - that the burden of distinguishing between certifying boards that are bona fide and those that are bogus would be significant, or that bar associations and official disciplinary committees cannot police deceptive practices effectively. Cf. Shapero, 486 U.S., at 477 ("The record before us furnishes no evidence that scrutiny of targeted solicitation letters will be appreciably more burdensome or less reliable than scrutiny of advertisements").
"If the naivete of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective." Bates, 433 U.S., at 375 . To the extent that potentially misleading statements of private certification or specialization could confuse consumers, a State might consider screening certifying organizations or requiring a disclaimer about the certifying organizations or the standards of a specialty. In re R. M. J., 455 U.S., at 201 -203. A State may not, however, completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA. Cf. In re Johnson, 341 N. W. 2d, at 283 (striking down the Disciplinary Rule that prevented statements of being "`a specialist unless and until the Minnesota Supreme Court adopts or authorizes rules or regulations permitting him to do so'"). Information about certification and specialties facilitates the consumer's access to legal services and thus better serves the administration of justice.
Petitioner's letterhead was neither actually nor inherently misleading. There is no dispute about the bona fides and the [496 U.S. 91, 111] relevance of NBTA certification. The Commission's concern about the possibility of deception in hypothetical cases is not sufficient to rebut the constitutional presumption favoring disclosure over concealment. Disclosure of information such as that on petitioner's letterhead both serves the public interest and encourages the development and utilization of meritorious certification programs for attorneys. As the public censure of petitioner for violating Rule 2-105(a)(3) violates the First Amendment, the judgment of the Illinois Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. x x x x.” (End of Quote).
Ibanez vs. Florida Department of Business
and Professional Regulation Board of Accountancy,
114 S. Ct. 2084 (1994)
Ms. Silvia S. Ibanez was a solo law and accounting practitioner in Orlando, Florida. She successfully represented herself before the U.S. Supreme Court in Ibanez V. State of Florida, 114 S. Ct. 2084 (1994), a case in which the state challenged her right to advertise the fact that she was a Certified Public Accountant [CPA] and a Certified Financial Planner (CFP).
Ibanez involved truthful speech in attorney advertising, i.e. the disclosure of her professional status as CPA and Certified Financial Planner (CFP).
The case was atypical because the censuring agency was not the Florida Bar but rather the Board of Accountancy, State of Florida Department of Business and Professional Regulation. In fact the Florida Bar was one several amici that filed briefs in her support.
The US Supreme Court decided unanimously that the disclosure of CPA status was not a misleading commercial speech and did not warrant state restrictions, which amounted to a blanket ban, and the disclosure of her CFP status likewise not a misleading commercial speech and, as such, deserved First Amendment protection.
In Ibanez, the Court determined that hypothetical confusion was not justifiable basis for restricting First Amendment rights, including the right to truthful commercial speech. Citing a court decision of a year earlier (Edenfield v. Fame, 507 U.S. __ , 123 L. Ed 2d 543, 113 S. Ct. [1993]),
Justice Ginsburg said that mere speculation or conjecture will not suffice, rather the State must demonstrate that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree and that to impose restrictions on truthful attorney advertising, state will be forced to prove that the harms are real.
The Ibanez decision also indicated that the court would continue to disfavor blanket restrictions or commercial speech. In Ibanez, the state of Florida argued that its regulations, specifically as applied to the CFP credential, merely required a disclaimer and did not constitute a blanket ban.
However, Justice Ginsburg correctly pointed out that even if Ibanez had complied with the board’s copious disclaimer provisions, she still would have run afoul of another board rule, one that absolutely prohibits use of the word “certified”
30-Day Ban on Targeted Mail Solicitation
Many US lawyers have questioned the constitutionality of a 30-day ban imposed by some states on lawyers’ targeted direct-mail solicitation of potential personal injury claimants
Written solicitation by lawyers already has received significant protection from the Court. In 1988 the Court ruled in Shapero vs. Kentucky Bar Association, 486 U.S. 466, supra, that lawyers may not be prohibited from engaging in solicitation by direct mail.
Then in Peel v. Attorney Registration and Disciplinary Commission Of Illinois, 110 S. Ct. 2281 (1990), supra, the Court ruled that lawyers could state in communications to prospective clients that they were certified as specialists by recognized agencies.
More recently, in Ibanez v. Florida Department of Business and Professional Regulation Board of Accountancy, 114 S. Ct. 2084 (1994), the court ruled that lawyers could not be prohibited from identifying themselves in stationary and business cards as certified public accountants and certified financial planners as long as the information is not false or misleading.
Those setbacks have not deterred the State Bars from seeking to restrict lawyer solicitation, despite the Court’s general tendency to give lawyers more latitude in communicating with potential clients since first striking down bars on lawyers advertising in 1977.
So far, the Florida Bar has lost in both the Federal District Court and the Court of Appeals for the 11th Circuit, 21 F. 3d 1038 (1994). Affirming the district court, the 11th Circuit Court of Appeals rejected the State Bar’s argument that the 30-day ban on direct targeted mails served a substantial interest in protecting the privacy and rights of victims and their loved ones from intrusion of lawyers seeking business. Accordingly, the Circuit Court Appeals said the ban was an impermissible restriction on lawyers’ commercial speech rights under the First Amendment.
In Shapero, supra, for instance, the US Supreme Court refused to view lawyers= targeted, direct- mail solicitation as a means of compromising the privacy and rights of victims. The Court observed that mail lacks the intrusive power of direct contact B it need not be read or ever opened.
The point could be pivotal in McHenry, since the solicitation letters to which the 30-day ban could apply already must be identified on the envelope with advertising material printed in red ink. (Anita L. Richardson, "Supreme Court Review: Stopping the Chase". ABA Journal, January 1995. Chicago, Illinois: American Bar Association (ABA), p. 38).
The justices of the US Supreme Court by a 5-4 vote agreed in Florida Bar v. Went for It, Inc., No. 94 B 226 (July-Aug. 1995), that Florida’s 30-day moratorium in targeted direct-mail solicitation of accident victims did not violate attorneys’ free speech rights. While most experts agreed that the Court’s ruling was fairly narrow -- perhaps even limited to the 30-day cooling off period at issue, some say it could still open the door for more such regulation. Texas, Iowa and Mississippi have toughened up their attorney advertising rules, for example, and Illinois, Arizona and Georgia were among those states considering whether to follow suit.
The majority opinion in Florida Bar vs. Went for It Inc., supra, relied heavily on a Florida Bar study which concluded that the public viewed targeted direct-mail solicitation soon after accidents as an intrusion on privacy that reflects poorly on the profession.
This is the first time that the Court was divided on a First Amendment question on the basis of public opinion. Warning that the ruling paved the way for state-sponsored censorship of lawyer advertising, Justice Kennedy said the case should be controlled by the Court=s 1988 decision rejecting flat bans on direct-mail solicitations.
(See: Richard D. Reuben, "Developments: Florida Bar's Ad Restriction Constitutional", ABA Journal, August 1995. Chicago, Illinois: American Bar Association (ABA), p. 20).
It has been observed that it is all too common that lawyers follow closely behind nearly every major crash, collapse or collision, if not in person, then certainly with solicitation letters to victims or their families. Is this conduct unethical ambulance chasing by mail or merely in bad taste? To what extent can it be regulated?
Following the US Supreme Court’s 1988 ruling in Shapero v. Kentucky Bar Association, 4861 U.S. 466 (1988), holding that lawyers could not be prohibited from engaging it direct-mail solicitation, regulatory efforts by the states have focused on imposing waiting periods.
Model Rule 7.3 of the ABA Model Rules of Professional Conduct does not prohibit targeted direct mail solicitation nor does it impose a waiting period on such contacts. Some state professional conduct rules that mandate waiting periods were under attack on grounds that the constrictions violated commercial speech guaranteed by the First Amendment. Nevada, for example., required lawyers to wait for 45 days following an incident causing injuries before sending solicitation letters to victims or their families. New Mexico and Iowa had imposed a ban on targeted direct-mail solicitation for personal injury or wrongful death cases. Similar rules are pending in Georgia, Mississippi and Arkansas.
In Texas, the state legislature went so far as to criminalize targeted direct-mail solicitation of criminal defendants or accident victims within 30 days following their arrest, injury or filing of a civil suit.
The statutory waiting period imposed by Texas was ruled unconstitutional by a U.S. District Court judges on grounds that it did not substantially advance the state’s legislative goal of protecting the people from false or misleading communications by lawyers. (Moore v. Morales, 843 7. Supp. 1124 (S.D. Texas 1994).
Applying the US Supreme Court’s test in Identifield v. Fane, 113 S. Ct. 1780 (1992), the District Court of Texas pointed out that a state, in regulating truthful commercial speech, must prove that its interests in proscribing that speech are substantial, that the regulators advance those interests in a direct and material manner, and that the magnitude of the restriction is proportionate to the state=s interest in the regulation.
New Jersey’s Rule 7.3, like the ABA Model Rules on which it is based, does not mandate a waiting period for targeted direct mail solicitation in New Jersey Supreme Court has ruled that two weeks is a reasonable waiting period. (Matter of Anis, 599 A. 2d 1265, cert. Denied, 112 S. 2303 [1992]).
Commercial speech protection does not grant lawyers a right to engage in conduct that clearly offends common decency. (id.). (Pitulla, Joanne. "Ethics: Please Release Me", ABA Journal, August 1996. Chicago, Illinois: American Bar Association (ABA), p. 92).
State Supreme Court Decisions
On Lawyer Advertising
Sources
Several states have published compiled digests of state ethics opinions. See, for instance, the California Compendium on Professional Responsibility, the Oregon State Bar Ethics Book for Lawyers, and Dean Harry J. Haysworth’s Handbook on Legal Ethics for South Carolina Lawyers. In most states, the ethics opinions are not compiled but merely published as they are issued in a bar association publication. Digests of most of the states and local opinions issued prior to 1980 were contained in the Digest of Bar Association Ethics Opinions (1970).
Summaries of most state and local ethics advisory opinions issued since mid-1980 were published in the ABA/BNA Lawyers’ Manual on Professional Conduct which began publication in January 1984.
Telephone Messages and Talking Yellow Pages
The issue of whether recorded telephone messages constituted in-person solicitation was widely debated upon.
The 1989 Amendments to ABA Model Rule 7.3 treated recorded telephone messages the same as advertising.
At the present time, however, most state ethics codes considered all telephones solicitation as in-person solicitation regardless of whether the telephone call was recorded or live. (Haysworth, supra, p. 9).
The Ohio Supreme Court Board of Commissions in December in 1988 issued an ethics advisory opinion authorising lawyers to participate in recorded advertising known as the Talking Yellow Pages where individuals could ask for the names of people providing a particular service and a computer will list up to six names selected on a random basis. (Haysworth, supra, p. 9, citing Ohio Supreme Court Opinion 88-27 (1988) (US Lawyers Manual 9).
But see id. Opinion 90-2, 1990, 6 Lawyers Manual 98, holding as unethical a telemarketing program where initial contact was made by an agent of a private law firm rather than by the prospective client calling the law firm. (id.).
Future litigation probably, according to Dean Haysworth, will focus in two areas: A(a) establishing the permissible limits of the increased emphasis on disclaimers and others disclosures that states increasingly imposed on various forms of advertising; and (b) drawing a clearer line between what activities will be classified as in-person solicitation that can be subject to much greater restrictions than activities that are classified advertising. (Haysworth, supra, p. 8).
Solicitation by Interest Groups
(Freedom of Association)
In the case of In re Jaques, 407 Mich. 26, 281, N.W. 2d 469 (1979), the Michigan Supreme Court vacated disciplinary sanctions against a lawyer who had used a union business agent to contact union members and their families about possible legal claims@. (Haysworth, supra, p. 8, Footnote No.15)
In the case of In re Teichman, 75 Ill. 2d 88, 387 N.E. 2d 265, XXX 444 U.S. 917 (1979), the Illinois Supreme Court held that an attorney could not be disciplined for soliciting contingent-fee contracts from black train- accident victims because the solicitation was done at the request of a black minister who was concerned that the injured people would not otherwise receive adequate representation. (Haysworth, supra, p. 8, Footnote No.15).
State Bar Counsel
State Bar Counsel are the internal affairs officers of the legal profession in each state. It is their job to investigate complaints and protests from the public against lawyers who do not deserve to practice.
Many lawyers view state bar counsel with resentment; they miss the fact that unchallenged unprofessional conduct of a few has a negative effect on everyone’s image. Counsel’s activities thus benefit all lawyers who abide by the rules.
Most complaints are filed against solo practitioners and attorneys in small firms.
This can be explained by poor management internal controls.
The result is often missed deadliness, poor communication with clients, and mismanagement of funds.
Dishonesty and neglect are the common basis of the majority of complaints. Judges and lawyers also file complaints against fellow lawyers.
Model Rule 8.3 (a) imposes a duty on attorneys to report professional misconduct.
Some states also require bar counsel investigation whenever a client files a civil action against an attorney. (Ronald W. Fuchs, "When the Bar Ethics Counsel Comes Knocking", The Compleat Lawyer, Fall 1993, Vol. 10, No. 4, Chicago, Illinois: American Bar Association (ABA), Section of General Practice, pp. 35-37).
In-Person Solicitation
In August 1998, the 11th U.S. Circuit Court of Appeals based in Atlanta, Georgia sided with the Georgia State Bar in upholding the prohibition against in-person solicitation by attorneys or their intermediaries, in a challenge brought by Chalker and his partner, Robert Falanga. Falanga vs. State Bar of Georgia, Nos. 96 B 8972, 96 B 9491, 97 B 8062 (Aug. 19, 1998).
Most states and Rule 7.3 of the ABA Model Rule of Professional Conduct have a similar prohibition.
Only four jurisdictions -- the District of Columbia, Maine, Montana and North Dakota -- generally permit in- person solicitation by lawyers or their agents.
The appellate court reversed a Northern District of Georgia Court ruling that a prophylactic bar on solicitation of clients violated the attorney’s right to free speech.
The appeals court said Falanga was similar to a Supreme Court case that upheld a bar on in-person solicitation of clients. Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978).
In that case, the attorneys solicited accident victims at a hospital and at home. Falanga and Chalker did not personally solicit clients.
Instead, they bought lunch and offered free legal advice for chiropractors and doctors who recommended the lawyer’s services to patients and grieving family members.
Falanga and Chalker had asked the appellate court to follow the US Supreme Court’s holding in Edenfield vs. Fane, 597 U.S. 761 (1993), which held unconstitutional a total ban on in-person solicitation by certified public accountants.
But the appeals court found that Ohralik governed their case because there was a greater danger of overreaching by lawyers, trained in the art of persuasion, in soliciting personal injury clients than by CPAs soliciting experienced business clients.
Less clear is whether more modern, less intensive kinds of clients solicitation can be banned.
Can a lawyer solicit by e-mail? By message left on an answering machine?
Future courts may have to decide.
(See: Hope Vines Samborn, "Trends in the Law: Cloudy Standards For Rainmaking", ABA Journal, November 1998. Chicago, Illinois: American Bar Association (ABA), p. 30).