Peel v. Attorney Disc. Comm'nAnnotate this Case
496 U.S. 91 (1990)
U.S. Supreme Court
Peel v. Attorney Disc. Comm'n, 496 U.S. 91 (1990)
Peel v. Attorney Registration and Disciplinary Commission of Illinois
Argued Jan. 17, 1990
Decided June 4, 1990
496 U.S. 91
CERTIORARI TO THE SUPREME COURT OF ILLINOIS
Petitioner Peel is licensed to practice law in Illinois and other States. He also has a "Certificate in Civil Trial Advocacy" from the National Board of Trial Advocacy (NBTA), which offers periodic certification to applicants who meet 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 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.
Held: The judgment is reversed, and the case is remanded.
126 Ill.2d 397, 128 Ill.Dec. 535, 534 N.E.2d 980 (1989), reversed and remanded.
Justice STEVENS, joined by Justice BRENNAN, Justice BLACKMUN, and Justice KENNEDY, 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. Pp. 496 U. S. 99-111.
(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. Pp. 496 U. S. 99-100.
(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
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. Pp. 496 U. S. 101-106.
(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. Pp. 496 U. S. 106-111.
Justice MARSHALL, joined by Justice BRENNAN, agreeing that the State may not prohibit Peel from holding himself out as a certified NBTA trial specialist because the letterhead is neither actually nor inherently misleading, concluded that the letterhead is potentially misleading and thus the State may enact regulations other than a total ban to ensure that the public is not misled by such representations. The letterhead is potentially misleading because NBTA's name could give the impression to nonlawyers that the organization is a federal government agency; the juxtaposition of the references to Peel's state licenses to practice law and to his certification by the NBTA may lead individuals to believe that the NBTA is somehow sanctioned by the States; and the reference to NBTA certification may cause people to think that Peel is necessarily a better trial lawyer than attorneys without certification, because facts as well as opinions may be misleading when they are presented without adequate information. A State could require a lawyer to provide additional information in order to prevent a claim of NBTA certification from being misleading. A State may require, for example, that the letterhead include a disclaimer stating that the NBTA is a private organization not affiliated with or sanctioned by the State or Federal Government, or
information about NBTA's requirements for certification so that any inferences drawn by consumers about the certified attorney's qualifications would be based on more complete knowledge of the meaning of NBTA certification. Each State may decide for itself, within First Amendment constraints, how best to prevent such claims from being misleading. Pp. 496 U. S. 111-117.
STEVENS, J., announced the judgment of the Court and delivered an opinion, in which BRENNAN, BLACKMUN, and KENNEDY, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 496 U. S. 111. WHITE, J., filed a dissenting opinion, post, p. 496 U. S. 118. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 496 U. S. 119.
Justice STEVENS announced the judgment of the Court and delivered an opinion in which Justice BRENNAN, Justice BLACKMUN, and Justice KENNEDY join.
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
granted certiorari to consider whether the statement on his letterhead is protected by the First Amendment. 492 U.S. 917 (1989). [Footnote 1]
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. [Footnote 2] That proposition was endorsed by a number of groups of lawyers [Footnote 3] 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. [Footnote 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
In re Johnson, 341 N.W.2d 282, 283 (Minn. 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 Nowell, 487 So.2d 848, 851 (Ala.1986).
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. [Footnote 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." [Footnote 6]
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 [Footnote 7] "
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.' [Footnote 8]"
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 Rule 2-101(b), 1102(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
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."
Id. at 20a.
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, 128 Ill.Dec. 535, 538-539, 534 N.E.2d 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, 128 Ill.Dec. at 539, 534 N.E.2d at 984. The court noted confusion in the parties' descriptions of the NBTA's requirements, [Footnote 9] but did not
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, 128 Ill.Dec. at 539, 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, 128 Ill.Dec. at 541, 534 N.E.2d at 986. Concluding that the letterhead was inherently misleading for these reasons, the court upheld the blanket prohibition of Rule 2105(a) under the First Amendment.
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, 128 Ill.Dec. at 538, 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." Tr. of Oral Arg. 9. 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. 191 (1982):
"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."
Id. at 455 U. S. 203 (emphasis added). 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
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 2101(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, 128 Ill.Dec. at 540, 534 N.E.2d at 984 (quoting In re R.M.J., 455 U.S. at 455 U. S. 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 455 U. S. 201, n. 14, 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. [Footnote 10]
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. Seen 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, [Footnote 11] but there is no evidence that the consumers
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. See supra, at 496 U. S. 96. 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, 128 Ill. Dec. at 539, 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. [Footnote 12] 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 24.
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, 463 U. S. 74 (1983). [Footnote 13] The two
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.
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, 447 U. S. 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), [Footnote 14] 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,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 486 U. S. 472 (quoting In re R.M.J., 455 U.S. at 455 U. S. 203). Cf. Ohralik v. Ohio State Bar Assn.,436 U. S. 447 (1978) (restricting in-person solicitation). [Footnote 15] 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.
Lacking empirical evidence to support its claim of deception, the Commission relies heavily on the inherent authority of the Illinois Supreme Court to supervise its own bar. Justice O'CONNOR's dissent urges that "we should be more deferential" to the State, asserting without explanation that "the Supreme Court of Illinois is in a far better position than is this Court to determine which statements are misleading or likely to mislead." [Footnote 16] Whether the inherent character of a statement places it beyond the protection of the First Amendment is a question of law over which Members of this Court should exercise de novo review. Cf. Bose Corp. v. Consumers Union of United States, Inc.,466 U. S. 485, 466 U. S. 498-511 (1984). That the judgment below is by a State Supreme Court exercising review over the actions of its State Bar Commission does not insulate it from our review for constitutional infirmity. See, e.g., Baird v. State Bar of Arizona,401 U. S. 1 (1971). 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 Board v. Virginia Citizens Consumer Council, Inc.,425 U. S. 748, 425 U. S. 770 (1976);
Central Hudson Gas & Electric Corp., 447 U.S. at 447 U. S. 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 455 U. S. 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. 350, 433 U. S. 379 (1977):
"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 was 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 486 U. S. 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 433 U. S. 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 organization or the standards of a specialty. In re R.M.J., 455 U.S. at 455 U. S. 201-203. [Footnote 17] 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. [Footnote 18]
Petitioner's letterhead was neither actually nor inherently misleading. There is no dispute about the bona fides and the
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.
It is so ordered.
The First Amendment to the United States Constitution provides in part: "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." If a statement may not be censored by the Federal Government, it is also protected from censorship by the State of Illinois. See Cantwell v. Connecticut,310 U. S. 296 (1940); Near v. Minnesota ex rel. Olson,283 U. S. 697 (1931).
Burger, The Special Skills of Advocacy Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Ford.L.Rev. 227 (1973) (recording the Fourth Annual John F. Sonnett Memorial Lecture delivered on November 26, 1973). The address warned that a lawyer is not qualified, "simply by virtue of admission to the bar, to be an advocate in trial courts in matters of serious consequence." Id. at 240. Other proponents stress more positive reasons for certification, such as the creation of "a powerful professional and economic incentive to increase [lawyers'] competence." Brief for Academy of Certified Trial Lawyers of Minnesota as Amicus Curiae.
See Trial Advocacy as a Specialty: Final Report of the Annual Chief Justice Earl Warren Conference on Advocacy in the United States (sponsored by the Roscoe Pound-American Trial Lawyers Foundation) (1976).
The groups sponsoring NBTA include the National District Attorneys Association, the Association of Trial Lawyers of America, the International Academy of Trial Lawyers, the International Society of Barristers, the National Association of Criminal Defense Lawyers, the National Association of Women Lawyers, and the American Board of Professional Liability Attorneys.
Brief for National Board of Trial Advocacy as Amicus Curiae 9-13. The current NBTA requirements are that an applicant: (1) be a bar member in good standing; (2) disclose any misconduct including criminal convictions or professional discipline; (3) show at least five years of actual practice in civil trial law during the period immediately preceding application for certification; (4) show substantial involvement in trial practice, including 30% of professional time in civil trial litigation during each of the five years preceding application; (5) demonstrate experience by appearing as lead counsel in at least 15 complete trials of civil matters to verdict or judgment, including at least 45 days of trial and 5 jury trials, and by appearing as lead counsel in 40 additional contested matters involving the taking of testimony; (6) participate in 45 hours of continuing legal education in civil trial practice in the 3 years preceding application; (7) be confidentially reviewed by six attorneys, including two against or with whom the applicant has tried a civil matter, and a judge before whom the applicant has appeared within the preceding two years; (8) provide a substantial trial court memorandum or brief that was submitted to a court in the preceding three years; and (9) pass a day-long written examination testing both procedural and substantive law in various areas of civil trial practice.
Petitioner has been vice-chair of the Insurance and Tort Committee of the General Practice Session of the American Bar Association and an officer of the Tri-City Bar Association. He is a member of the Illinois State Bar Association, the Arizona State Bar Association, the Missouri State Bar Association, the Illinois Trial Lawyers Association, and the Association of Trial Lawyers of America. Hearing Tr., App. G to Pet. for Cert. 28a-29a.
Report of the Hearing Panel, App. C, id. at 19a; App. 22-23.
App. D to Pet. for Cert. 21a.
Disciplinary Rule 2-105(a)(3) (1988). The exceptions are for patent, trademark, and admiralty lawyers. The remainder of Rule 2-105 provides:
"Rule 2-105. Limitation of Practice."
"(a) A lawyer shall not hold himself out publicly as a specialist, except as follows:"
"(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation 'Patents,' 'Patent Attorney,'' 'Patent Lawyer,' or 'Registered Patent Attorney' or any combination of those terms, on his letterhead and office sign."
"(2) A lawyer engaged in the trademark practice may use the designation 'Trademarks,' 'Trademark Attorney' or 'Trademark Lawyer,' or a combination of those terms, and a lawyer engaged in the admiralty practice may use the designation 'Admiralty,' 'Proctor in Admiralty' or 'Admiralty Lawyer,' or a combination of those terms, in any form of communication otherwise permitted under Rules 2-101 through 2-104."
126 Ill.2d at 406-407, 128 Ill.Dec. at 539-540, 534 N.E.2d at 984-985. The court noted some ambiguity and inconsistency in the descriptions of required trial experience: by petitioner as 40 jury trials carried to verdict, by amicus Association of Trial Lawyers of America as 15 major cases carried to verdict, and by amicus NBTA as 15 complete trials to verdict, at least 5 of which were to a jury. Petitioner's brief to the state court did fail to report the newly revised standards provided by the amici, whose descriptions varied from each other's only in terminology. Brief for Petitioner 23, n. 26. All parties have provided the revised standards to this Court. Seen 4, supra.
Of course, many lawyers who do not have or publicize certification are in fact more able than others who do claim such a credential. The Commission does not suggest that the absence of certification leads consumers to conclude that these attorneys are unqualified. In any event, such a negative inference would be far more likely in a State that certifies attorneys under a comprehensive formal program than in one that provides no official recognition.
See e.g., Ala.Code Prof.Resp.Temp. DR 2-112 (1989); Ariz.Rule Prof.Conduct ER 7.4 (1990); Ark. Model Rule Prof. Conduct 7.4(c) (1987); Cal.Rule Ct., Policies Governing the State Bar of California Program for Certifying Legal Specialists (1990); Conn.Rule Prof.Conduct 7.4A-C (1989); Fla.Rule Regulating Bar 6-4 (1990); Ga. Rules Ct.Ann., DR 2-105(3) (1989); La.Rev.Stat. Ann., Rule of Prof. Conduct 7.4(b) (1988); Minn.Rule of Prof.Conduct 7.4 and Minn.State Bd.. of Legal Certification Rules 5, 6, 8 (1990); N.J.Ct.Rule 1:39 and N.J.Rule Prof. Conduct 7.4 (1989); N.M. Rules Governing Practice of Law, Legal Specialization 19-101 et seq. (1988); N.C. Ann.Rules, Plan of Certified Legal Specialization, App. H (1990); S.C.Sup.Ct.Rule 53 (1988); Tex.State Bar Rules, Art. 10, § 9, DR 2-101(C) (1989); Utah Rule Prof. Conduct 7.4(b) (1990).
Board certification of specialists in various branches of medicine, handled by the 23 member boards of the American Board of Medical Specialties, is based on various requirements of education, residency, examinations and evaluations. American Board of Medical Specialties, Board Evaluation Procedures: Developing a Research Agenda, Conference Proceedings 7-11 (1981). The average member of the public does not know or necessarily understand these requirements, but board certification nevertheless has "come to be regarded as evidence of the skill and proficiency of those to whom they [have] been issued." American Board of Medical Specialties, Evaluating the Skills of Medical Specialists 1 (J. Lloyd and D. Langsley eds. 1983).
Prior to its revision in 1989, the Comment to ABA Model Rule of Professional Conduct 7.4 also prohibited any statement that a lawyer's practice "is limited to" or "concentrated in" an area under the same explanation that these terms had "a secondary meaning implying formal recognition as a specialist." Model Rule 7.4 Comment (1983). When Rule 7.4 was originally proposed in 1983, proponents of unsuccessful amendments to drop all prohibition of terms argued that "the public does not attach the narrow meaning to the word specialist' that the legal profession generally does. The public would perceive no distinction between a lawyer's claim that he practices only probate law and a claim that he concentrates his practice in probate law." ABA, The Legislative History of the Model Rules of Professional Conduct 189 (1987). The amendments' opponents argued that allowing lawyers to designate themselves as specialists would undermine the States' ability to set up and control specialization programs. Ibid. This position essentially conceded that these terms did not yet have "a secondary meaning implying formal recognition," but only that they could develop such a secondary meaning if state programs came into being.
Rule 7.4's exception for designations of "Patent Attorney" and "Proctor in Admiralty" ignores the asserted interest in avoiding confusion from any secondary meaning of these terms. The Comment to Rule 7.4 actually imbues these terms with a historical, virtually formal, recognition, despite the lack of any prerequisites for their use:
"Recognition of specialization in patent matters is a matter of long-established policy of the Patent and Trademark Office. Designation of admiralty practice has a long historical tradition associated with maritime commerce and the federal courts."
ABA Model Rule of Professional Conduct 7.4 Comment (1989)
Justice O'CONNOR's legal conclusion about the deceptive potential of petitioner's letterhead, like that of the Illinois Supreme Court, rests on a flexible appraisal of the character of the consuming public. For example, her opinion emphasizes the "public's comparative lack of knowledge" about the legal profession and its lack of "sophistication concerning legal services," post at 496 U. S. 120, 496 U. S. 124, but simultaneously reasons that the public will believe that all certifications are state sanctioned because of their "common knowledge that States police the ethical standards of the profession" and their specific knowledge that States like California are now certifying legal specialists, post at 496 U. S. 124. These consumers also can distinguish "Registered Patent Attorney" from "Certified Patent Attorney," interpreting the former as an acceptable "reporting of professional experience," but the latter as a deceptive "claim of quality." Post at 496 U. S. 126.
We prefer to assume that the average consumer, with or without knowledge of the legal profession, can understand a statement that certification by a national organization is not certification by the State, and can decide what, if any, value to accord this information.
The attempt in Justice O'CONNOR's dissent to distinguish In re R.M.J. by reasoning that a consumer can contact the Supreme Court to see if a lawyer is really a member of the Court's Bar, post at 496 U. S. 122, misses the point. Both admission to the Bar of this Court and certification by NBTA are facts, whether or not consumers verify them. The legal question is whether a statement of either fact is nonetheless so misleading that it falls beyond the First Amendment's protections. We found that the advertisement of admission to the Bar of this Court could not be banned, despite recognition that "this relatively uninformative fact is at least bad taste" and "could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court." In re R.M.J., 455 U.S. at 455 U. S. 205-206.
It is noteworthy that Justice WHlTE's reference to the overbreadth doctrine, see post at 496 U. S. 118-119, is potentially misleading. That doctrine allows a party whose own conduct is not protected by the First Amendment to challenge a regulation as overbroad because of its impact on parties not before the Court. In this case, we hold that Illinois Disciplinary Rule 2-105 is invalid as applied to petitioner Peel. Accordingly, the overbreadth doctrine to which Justice WHITE refers has no relevance to our analysis.
Post at 496 U. S. 121. Justice O'CONNOR's abdication of review would create radical disparities in First Amendment protections from State to State. On the one hand, it finds that the Illinois Supreme Court "properly concluded [that] certification is tantamount to a claim of quality and superiority and is therefore inherently likely to mislead." Post at 496 U. S. 133. Under this analysis, claims of certification by States as well as by private organizations are deceptive and thus fall outside of the First Amendment's protection; indeed, Illinois forbids claims of "certification" as a "specialist" by any entity. See also post at 496 U. S. 121 (listing States that ban certification). On the other hand, the dissent apparently also would defer to the contrary judgments of other States, who have held that the First Amendment protects claims of NBTA certification by members of their bars, e.g., Ex parte Howell, 487 So.2d 848 (Ala.1986); In re Johnson, 341 N.W.2d 282 (Minn.1983), and have held that claims of official state certification are permissible, see, e.g., post at 496 U. S. 124 (listing States that certify).
It is not necessary here -- as it also was not in In re R.M.J. -- to consider when a State might impose some disclosure requirements, rather than a total prohibition, in order to minimize the possibility that a reader will misunderstand the significance of a statement of fact that is protected by the First Amendment. We agree with Justice MARSHALL that a holding that a total ban is unconstitutional does not necessarily preclude less restrictive regulation of commercial speech.
See Bates v. State Bar of Arizona,433 U. S. 350, 433 U. S. 376 (1977). A principal reason why consumers do not consult lawyers is because they do not know how to find a lawyer able to assist them with their particular problems. Federal Trade Commission, Staff Report on Improving Consumer Access to Legal Services: The Case for Removing Restrictions of Truthful Advertising 1 (1984). Justice O'CONNOR would extend this convenience to consumers who seek admiralty, patent, and trademark lawyers, post at 496 U. S. 126, but not to consumers who need a lawyer certified or specializing in more commonly needed areas of the law.
Justice MARSHALL, with whom Justice BRENNAN joins, concurring in the judgment.
Petitioner's letterhead is neither actually nor inherently misleading. I therefore concur in the plurality's holding that Illinois may not prohibit petitioner from holding himself out as a civil trial specialist certified by the National Board of Trial Advocacy. I believe, though, that petitioner's letterhead statement is potentially misleading. Accordingly, I would hold that Illinois may enact regulations other than a total ban to ensure that the public is not misled by such representations. Because Illinois' present regulation is unconstitutional as applied to petitioner, however, the judgment of the Illinois Supreme Court must be reversed and the case remanded for further proceedings.
The scope of permissible regulation depends on the nature of the commercial speech in question. States may prohibit actually or inherently misleading commercial speech entirely. In re R.M.J.,455 U. S. 191, 455 U. S. 203 (1982). They may not, however, ban potentially misleading commercial speech if narrower limitations could be crafted to ensure that the information is presented in a nonmisleading manner. Ibid.
I agree with the plurality that petitioner's reference to his NBTA certification as a civil trial specialist is not actually
misleading. Ante at 496 U. S. 105-106. The record contains no evidence that any recipient of petitioner's stationery actually has been misled by the statement. I also believe that petitioner's letterhead statement is not inherently misleading such that it may be banned outright. The Court has upheld such a ban only when the particular method by which the information is imparted to consumers is inherently conducive to deception and coercion. In Ohralik v. Ohio State Bar Assn.,436 U. S. 447 (1978), the Court upheld a prophylactic ban on a lawyer's in-person solicitation of clients for pecuniary gain because such solicitation "is inherently conducive to overreaching and other forms of misconduct." Id. at 436 U. S. 464. A statement on a letterhead, however, does not raise the same concerns as face-to-face barratry, because the recipient of a letter does not have "a badgering advocate breathing down his neck" and can take time to reflect on the information provided to him. Shapero v. Kentucky Bar Assn.,486 U. S. 466, 486 U. S. 475-476 (1988). The Court has also suggested that commercial speech that is devoid of intrinsic meaning may be inherently misleading, especially if such speech historically has been used to deceive the public. In re R.M.J., supra, 455 U.S. at 455 U. S. 202 (citing Friedman v. Rogers,440 U. S. 1 (1979), which upheld a ban on the use of trade names by optometrists). The statement about petitioner's NBTA certification does not fit this category, as it does impart some information and as the State has made no showing that similar claims have been used to deceive. Illinois therefore may not prohibit petitioner from including the statement in his letterhead.
The statement is nonetheless potentially misleading. The name "National Board of Trial Advocacy" could create the misimpression that the NBTA is an agency of the Federal Government. Although most lawyers undoubtedly know that the Federal Government does not regulate lawyers, most nonlawyers probably do not; thus, the word "National" in the NBTA's name does not dispel the potential implication
that the NBTA is a governmental agency. Furthermore, the juxtaposition on petitioner's letterhead of the phrase "Certified Civil Trial Specialist By the National Board of Trial Advocacy" with "Licensed: Illinois, Missouri, Arizona" could lead even lawyers to believe that the NBTA, though not a governmental agency, is somehow sanctioned by the States listed on the letterhead. Cf. post at 496 U. S. 123 (O'CONNOR, J., dissenting).
The plurality's assertion that the letterhead is unlikely to mislead a person to think that the NBTA is in some way affiliated with the Government is founded on the assumption that people understand that licenses are issued by governmental authorities, whereas certificates are issued by private organizations. Ante at 496 U. S. 103-104. But the dictionary definition of "certificate" relied on by the plurality in fact suggests that "certified" will often be understood as connoting governmental authorization:
"[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.) (emphases added). See also ibid (defining "certify" as, inter alia, "license").
Indeed, this interpretation accords with many States' practice of certifying legal specialists, see post at 496 U. S. 124, and other professionals. For instance, many States prescribe requirements for, and "certify" public accountants as, "Certified Public Accountants." See, e.g., Ill.Rev.Stat., ch. 111,
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