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. Pp.
455 U. S.
199-207.
(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
Page 455 U. S. 192
Amendments require that they do so with care and in a manner no
more extensive than reasonably necessary to further substantial
interests. Pp.
455 U. S.
199-204.
(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. P.
455 U. S.
205.
(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.
Pp.
455 U. S.
205-206.
(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. P.
455 U. S.
206.
609 S.W.2d
411, reversed.
POWELL, J., delivered the opinion for a unanimous Court.
Page 455 U. S. 193
JUSTICE POWELL delivered the opinion of the Court.
The Court's decision in
Bates v. State Bar of Arizona,
433 U. S. 350
(1977), required a reexamination of long-held perceptions as to
"advertising" by lawyers. This appeal presents the question whether
certain aspects of the revised ethical rules of the Supreme Court
of Missouri regulating lawyer advertising conform to the
requirements of
Bates.
I
As with many of the States, until the decision in
Bates, Missouri placed an absolute prohibition on
advertising by lawyers. [
Footnote
1] After the Court's invalidation of just such a prohibition in
Bates, the Committee on Professional Ethics and
Responsibility of the Supreme Court of Missouri revised that
court's Rule 4 regulating lawyer advertising. The Committee sought
to "strike a midpoint between prohibition and unlimited
advertising," [
Footnote 2] and
the revised regulation of advertising, adopted with slight
modification by the State Supreme Court, represents a compromise.
Lawyer advertising is permitted, but it is restricted to certain
categories of information, and in some instances, to certain
specified language.
Page 455 U. S. 194
Thus, part B of DR 2-101 of the Rule states that a lawyer may
"publish . . . in newspapers, periodicals and the yellow pages of
telephone directories" 10 categories of information: 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 specified
"routine" legal services. [
Footnote
3] Although the Rule does not state explicitly that these 10
categories of information or the 3 indicated forms of printed
advertisement are the only information and the only means of
advertising that will be permitted, [
Footnote 4] that is the interpretation given the Rule by
the State Supreme Court and the Advisory Committee [
Footnote 5] charged with its enforcement.
In addition to these guidelines, and under authority of the
Rule, the Advisory Committee has issued an addendum to the Rule
providing that, if the lawyer chooses to list areas of
Page 455 U. S. 195
practice in his advertisement, he must do so in one of two
prescribed ways. He may list one of three general descriptive terms
specified in the Rule -- "General Civil Practice," "General
Criminal Practice," or "General Civil and Criminal Practice."
Alternatively, he may use one or more of a list of 23 areas of
practice, including, for example, "Tort Law," "Family Law," and
"Probate and Trust Law." He may not list both a general term and
specific subheadings, nor may he deviate from the precise wording
stated in the Rule. He may not indicate that his practice is
"limited" to the listed areas, and he must include a particular
disclaimer of certification of expertise following any listing of
specific areas of practice. [
Footnote 6]
Page 455 U. S. 196
Finally, one further aspect of the Rule is relevant in this
case. DR 2-102 of Rule 4 regulates the use of professional
announcement cards. It permits a lawyer or firm to mail a dignified
"brief professional announcement card stating new or changed
associates or addresses, change of firm name, or similar matters."
The Rule, however, does not permit a general mailing; the
announcement cards may be sent only to "lawyers, clients, former
clients, personal friends, and relatives." [
Footnote 7] Mo.Rev.Stat., Sup.Ct. Rule 4, DR 102(A)(2)
(1978) (Index Vol.).
II
Appellant graduated from law school in 1973, and was admitted to
the Missouri and Illinois Bars in the same year. After a short
stint with the Securities and Exchange Commission in Washington,
D.C., appellant moved to St. Louis, Mo., in April, 1977, and began
practice as a sole practitioner. As a means of announcing the
opening of his office, he mailed professional announcement cards to
a selected list of addressees. In order to reach a wider audience,
he placed several advertisements in local newspapers and in the
yellow pages of the local telephone directory.
The advertisements at issue in this litigation appeared in
January, February, and August, 1978, and included information
Page 455 U. S. 197
that was not expressly permitted by Rule 4. They included the
information that appellant was licensed in Missouri and Illinois.
They contained, in large capital letters, a statement that
appellant was "Admitted to Practice Before THE UNITED STATES
SUPREME COURT." And they included a listing of areas of practice
that deviated from the language prescribed by the Advisory
Committee --
e.g., "personal injury" and "real estate"
instead of "tort law" and "property law" -- and that included
several areas of law without analogue in the list of areas prepared
by the Advisory Committee --
e.g., "contract," "zoning
& land use," "communication," "pension & profit sharing
plans." [
Footnote 8]
See n 6,
supra. In addition, and with the exception of the
advertisement appearing in August, 1978, appellant failed to
include the required disclaimer of certification of expertise after
the listing of areas of practice.
On November 19, 1979, the Advisory Committee filed an
information in the Supreme Court of Missouri charging appellant
Page 455 U. S. 198
with unprofessional conduct. The information charged appellant
with publishing three advertisements that listed areas of law not
approved by the Advisory Committee, that listed the courts in which
appellant was admitted to practice, and, in the case of two of the
advertisements, that failed to include the required disclaimer of
certification. The information also charged appellant with sending
announcement cards to "persons other than lawyers, clients, former
clients, personal friends, and relatives" in violation of DR
2-102(A)(2). In response, appellant argued that, with the exception
of the disclaimer requirement, each of these restrictions upon
advertising was unconstitutional under the First and Fourteenth
Amendments.
In a disbarment proceeding, the Supreme Court of Missouri upheld
the constitutionality of DR 2-101 of Rule 4 and issued a private
reprimand.
609 S.W.2d
411 (1981). But the court did not explain the reasons for its
decision, nor did it state whether it found appellant to have
violated each of the charges lodged against him, or only some of
them. Indeed, the court only purported to uphold the
constitutionality of DR 2-101; it did not mention the propriety of
DR 2-102, which governs the use of announcement cards.
Writing in separate dissenting opinions, Chief Justice Bardgett
and Judge Seiler argued that the information should be dismissed.
The dissenters suggested that the State did not have a significant
interest either in requiring the use of certain specified words to
describe areas of practice or in prohibiting a lawyer from
informing the public as to the States and courts in which he was
licensed to practice. Nor would the dissenters have found the
mailing of this sort of information to be unethical. [
Footnote 9]
Page 455 U. S. 199
III
In
Bates v. State Bar of Arizona, 433 U.
S. 350 (1977), the Court considered whether the
extension of First Amendment protection to commercial speech
announced in
Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, 425 U. S. 748
(1976), applied to the regulation of advertising by lawyers.
[
Footnote 10] The
Bates Court held that, indeed, lawyer advertising was a
form of commercial speech, protected by the First Amendment, and
that "advertising by attorneys may not be subjected to blanket
suppression." 433 U.S. at
433 U. S.
383.
More specifically, the
Bates Court held that lawyers
must be permitted to advertise the fees they charge for certain
"routine" legal services. The Court concluded that this sort of
price advertising was not "inherently" misleading, and therefore
could not be prohibited on that basis. The Court also rejected a
number of other justifications for broad restrictions upon
advertising, including the potential adverse effect of advertising
on professionalism, on the administration
Page 455 U. S. 200
of justice, and on the cost and quality of legal services, as
well as the difficulties of enforcing standards sort of an outright
prohibition. None of these interests was found to be sufficiently
strong or sufficiently affected by lawyer advertising to justify a
prohibition.
But the decision in
Bates nevertheless was a narrow
one. The Court emphasized that advertising by lawyers still could
be regulated. [
Footnote 11]
False, deceptive, or misleading advertising remains subject to
restraint, [
Footnote 12] and
the Court recognized that advertising by the professions poses
special risks of deception --
"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."
Ibid. (footnote
Page 455 U. S. 201
omitted). The Court suggested that claims as to quality or
in-person solicitation might be so likely to mislead as to warrant
restriction. And the Court noted that a warning or disclaimer might
be appropriately required, even in the context of advertising as to
price, in order to dissipate the possibility of consumer confusion
or deception. [
Footnote
13]
"[T]he bar retains the power to correct omissions that have the
effect of presenting an inaccurate picture, [although] the
preferred remedy is more disclosure, rather than less."
Id. at
433 U. S. 375.
[
Footnote 14]
Page 455 U. S. 202
In short, although the Court in
Bates was not persuaded
that price advertising for "routine" services as necessarily or
inherently misleading, and although the Court was not receptive to
other justifications for restricting such advertising, it did not
by any means foreclose restrictions on potentially or demonstrably
misleading advertising. Indeed, the Court recognized the special
possibilities for deception presented by advertising for
professional services. The public's comparative lack of knowledge,
the limited ability of the professions to police themselves, and
the absence of any standardization in the "product" renders
advertising for professional services especially susceptible to
abuses that the States have a legitimate interest in
controlling.
Thus, the Court has made clear in
Bates and subsequent
cases that regulation -- and imposition of discipline -- are
permissible where 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. In
Ohralik
v. Ohio State Bar Assn., 436 U. S. 447,
436 U. S. 462
(1978), the Court held that the possibility of "fraud, undue
influence, intimidation, overreaching, and other forms of
vexatious conduct'" was so likely in the context of in-person
solicitation that such solicitation could be prohibited. And in
Friedman v. Rogers, 440 U. S. 1 (1979),
we held that Texas could prohibit the use of trade names by
optometrists, particularly in view of the considerable history in
Texas of deception and abuse worked upon the consuming public
through the use of trade names.
Page 455 U. S. 203
Commercial speech doctrine, in the context of advertising for
professional services, may be summarized generally as follows:
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. Thus, the Court in
Bates suggested that the remedy in the first instance is
not necessarily a prohibition, but preferably a requirement of
disclaimers or explanation. 433 U.S. at
433 U. S. 375.
Although the potential for deception and confusion is particularly
strong in the context 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.
Central Hudson Gas & Electric Corp. v.
Public Service Comm'n, 447 U. S. 557,
447 U. S.
563-564 (1980). [
Footnote 15] Restrictions must be narrowly drawn, and the
State lawfully may regulate only to the extent regulation furthers
the State's substantial interest. Thus, in
Bates, the
Court found that the potentially adverse
Page 455 U. S. 204
effect of advertising on professionalism and the quality of
legal services was not sufficiently related to a.substantial state
interest to justify so great an interference with speech. [
Footnote 16] 433 U.S. at
433 U. S.
368-372,
433 U. S.
375-377.
IV
We now turn to apply these generalizations to the circumstances
of this case. [
Footnote
17]
The information lodged against appellant charged him with four
separate kinds of violation of Rule 4: listing the areas of his
practice in language or in terms other than that provided by the
Rule, failing to include a disclaimer, listing the courts and
States in which he had been admitted to practice, and mailing
announcement cards to persons other than "lawyers, clients, former
clients, personal friends, and relatives." Appellant makes no
challenge to the constitutionality of the disclaimer requirement,
[
Footnote 18] and we pass on
to the remaining three infractions.
Page 455 U. S. 205
Appellant was reprimanded for deviating from the precise listing
of areas of practice included in the Advisory Committee addendum to
Rule 4. The Advisory Committee does not argue that appellant's
listing was misleading. The use of the words "real estate" instead
of "property" could scarcely mislead the public. Similarly, the
listing of areas such as "contracts" or "securities," that are not
found on the Advisory Committee's list in any form, presents no
apparent danger of deception. Indeed, as Chief Justice Bardgett
explained in dissent, in certain respects, appellant's listing is
more informative than that provided in the addendum. Because the
listing published by the appellant has not been shown to be
misleading, and because the Advisory Committee suggests no
substantial interest promoted by the restriction, we conclude that
this portion of Rule 4 is an invalid restriction upon speech as
applied to appellant's advertisements.
Nor has the Advisory Committee identified any substantial
interest in a rule that prohibits a lawyer from identifying the
jurisdictions in which he is licensed to practice. Such information
is not misleading on its face. Appellant was licensed to practice
in both Illinois and Missouri. This is factual and highly relevant
information, particularly in light of the geography of the region
in which appellant practiced.
Somewhat more troubling is appellant's listing, in large capital
letters, that he was a member of the Bar of the Supreme Court of
the United States.
See Appendix to this opinion [omitted].
The emphasis of this relatively uninformative fact is at least bad
taste. Indeed, such a statement could be misleading to the general
public unfamiliar with the requirements of admission to the Bar of
this Court. Yet there is no finding to this effect by the Missouri
Supreme Court. There
Page 455 U. S. 206
is nothing in the record to indicate that the inclusion of this
information was misleading. Nor does the Rule specifically identify
this information as potentially misleading or, for example, place a
limitation on type size or require a statement explaining the
nature of the Supreme Court Bar.
Finally, appellant was charged with mailing cards announcing the
opening of his office to persons other than "lawyers, clients,
former clients, personal friends and relatives." Mailings and
handbills may be more difficult to supervise than newspapers. But
again we deal with a silent record. There is no indication that an
inability to supervise is the reason the State restricts the
potential audience of announcement cards. Nor is it clear that an
absolute prohibition is the only solution. For example, by
requiring a filing with the Advisory Committee of a copy of all
general mailings, the State may be able to exercise reasonable
supervision over such mailings. [
Footnote 19] There is no indication in the record of a
failed effort to proceed along such a less restrictive path.
[
Footnote 20]
See
Central Hudson Gas & Electric Corp. v. Public Service
Comm'n, 447 U.S. at
447 U. S. 566
("we must determine whether the regulation . . . is not more
extensive than is necessary to serve" the governmental interest
asserted).
In sum, none of the three restrictions in the Rule upon
appellant's First Amendment rights can be sustained in the
circumstances of this case. There is no finding that appellant's
speech was misleading. Nor can we say that it was inherently
Page 455 U. S. 207
misleading, or that restrictions short of an absolute
prohibition would not have sufficed to cure any possible deception.
We emphasize, as we have throughout the opinion, that the States
retain the authority to regulate advertising that is inherently
misleading or that has proved to be misleading in practice. There
may be other substantial state interests as well that will support
carefully drawn restrictions. But although the States may regulate
commercial speech, 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. The absolute
prohibition on appellant's speech, in the absence of a finding that
his speech was misleading, does not meet these requirements.
Accordingly, the judgment of the Supreme Court of Missouri
is
Reversed.
[
Footnote 1]
Prior to the 1977 revision, Rule 4 provided in pertinent
part:
"(A) A lawyer shall not prepare, cause to be prepared, use, or
participate in the use of, any form of public communication that
contains professionally self-laudatory statements calculated to
attract lay clients; as used herein, 'public communication'
includes, but is not limited to, communication by means of
television, radio, motion picture, newspaper, magazine, or
book."
"(B) A lawyer shall not publicize himself, his partner, or
associate as a lawyer through newspaper or magazine advertisements,
radio or television announcements, display advertisements in city
or telephone directories, or other means of commercial publicity,
nor shall he authorize or permit others to do so in his behalf. . .
."
Mo.Sup.Ct.Rules Ann., Rule 4, DR 2-101, p. 63 (Vernon 1981)
(historical note).
[
Footnote 2]
Report of Committee to Chief Justice of Supreme Court of
Missouri (Sept. 9,1977), reprinted in App. A-30.
[
Footnote 3]
The 10 listed "routine" services are: an uncontested dissolution
of marriage; an uncontested adoption; an uncontested personal
bankruptcy; an uncomplicated change of name; a simple warranty or
quitclaim deed; a simple deed of trust; a simple promissory note;
an individual Missouri or federal income tax return; a simple power
of attorney; and a simple will. Mo.Rev.Stat., Sup.Ct. Rule 4, DR
2-101(B) (1978) (Index Vol.). The Rule authorizes the Advisory
Committee to approve additions to this list of routine services.
Ibid.
[
Footnote 4]
Indeed, on its face, the Rule would appear to suggest that its
specific provisions are intended only to provide a safe harbor, and
not to prohibit all other forms of advertising or categories of
information. This impression is conveyed by the Rule's inclusion of
a general prohibition on misleading advertising in DR 2-101(A):
"A lawyer shall not, on behalf of himself, his partner,
associate or any other lawyer affiliated with him or his firm, use
or participate in the use of any form of public communication
respecting the quality of legal services or containing a false.
fraudulent, misleading, deceptive, self-laudatory or unfair
statement or claim."
Rule 4, DR 2-101(A).
[
Footnote 5]
The Advisory Committee is a standing committee of the Supreme
Court of Missouri, and is responsible for prosecuting disciplinary
proceedings and for giving formal and informal opinions on the
Canons of Professional Responsibility.
See Rule 5.
[
Footnote 6]
The addendum to the rule promulgated by the Advisory Committee
provided in relevant part as follows:
"[T]he following areas for fields of law may be advertised by
use of the specific language hereinafter set out:"
"1. 'General Civil Practice'"
"2. 'General Criminal Practice'"
"3. 'General Civil and Criminal Practice.'"
"If a lawyer or law firm uses one of the above, no other area
can be used. . . . If one of the above is not used, then a lawyer
or law firm can use one or more of the following:"
"1. 'Administrative Law'"
"2. 'Anti-Trust Law'"
"3. 'Appellate Practice'"
"4. 'Bankruptcy'"
"5. 'Commercial Law'"
"6. 'Corporation Law and Business Organizations'"
"7. 'Criminal Law'"
"8. 'Eminent Domain Law'"
"9. 'Environmental Law'"
"10. 'Family Law'"
"11. 'Financial Institution Law'"
"12. 'Insurance Law'"
"13. 'International Law'"
"14. 'Labor Law'"
"15. 'Local Government Law'"
"16. 'Military Law'"
"17. 'Probate and Trust Law'"
"18. 'Property Law'"
"19. 'Public Utility Law'"
"20. 'Taxation Law'"
"21. 'Tort Law'"
"22. 'Trial Practice'"
"23. 'Workers Compensation Law'"
"No deviation from the above phraseology will be permitted, and
no statement of limitation of practice can be stated."
"If one or more of these specific areas of practice are used in
any advertisement, the following statement must be included . . .
:"
"Listing of the above areas of practice does not indicate any
certification of expertise therein."
Rule 4, Addendum III (Adv.Comm. Nov. 13.1977).
[
Footnote 7]
This provision of Rule 4 was not altered by the 1977
amendments.
[
Footnote 8]
In an advertisement published in the August, 1978, yellow pages
for St. Louis, and typical of appellant's other advertisements,
appellant included a listing of 23 areas of practice. Four of the
areas conformed to the language prescribed in the Rule --
"bankruptcy," "anti-trust," "labor," and "criminal." Eleven of the
areas deviated from the precise language of the Rule -- "tax,"
"corporate," "partnership," "real estate," "probate," "wills,
estate planning," "personal injury," "trials & appeals,"
"workmen's compensation," "divorce-separation," and
"custody-adoption," instead of, respectively, and as required by
the Rule, "taxation law," "corporation law and business
organizations," "property law," "probate & trust law," "tort
law," "trial practice," "appellate practice," "workers compensation
law," and "family law." Eight other areas listed in the
advertisement are not listed in any manner by the Advisory
Committee's addendum: "contract," "aviation," "securities-bonds,"
"pension & profit sharing plans," "zoning & land use,"
"entertainment/sports," "food, drug & cosmetic," and
"communication."
A photograph of the advertisements as they appeared in the St.
Louis, Suburban West, Telephone Directory for February 1978, and in
the January/February, 1978, issue of the West End Word is
reproduced as an Appendix to this opinion [omitted]. In all of
appellant's advertisements, the statement as to his membership in
the Bar of the United States Supreme Court was printed
conspicuously in large capital letters.
[
Footnote 9]
The dissenting judges differed in several respects. Chief
Justice Bardgett considered that appellant's listing of the fact
that he was admitted to practice before the United States Supreme
Court was not improper; Judge Seiler argued that this information
was more misleading than helpful. Moreover, Judge Seiler argued
that appellant should not be penalized for having omitted a
disclaimer of certification when the addendum requiring the
disclaimer was not available until after appellant had placed the
advertisements and after it was too late to add the disclaimer.
Chief Justice Bardgett's dissent omits any mention of appellant's
failure to include a disclaimer.
See n 18,
infra. Finally, Chief Justice
Bardgett expressed his belief that our decision in
Central
Hudson Gas & Electric Corp. v. Public Service Comm'n.
447 U. S. 557
(1980), concerning the regulation of commercial speech, does not
apply in its entirety to the regulation of lawyer advertising.
Judge Seiler appeared to take the opposite position. Both of the
dissenting opinions reflect a thoughtful examination of the charges
made against appellant.
[
Footnote 10]
The Court in
Virginia Pharmacy expressly reserved this
question:
"We stress that we have considered in this case the regulation
of commercial advertising by pharmacists. Although we express no
opinion as to other professions, the distinctions, historical and
functional, between professions may require consideration of quite
different factors. Physicians and lawyers, for example, do not
dispense standardized products; they render professional services
of almost infinite variety and nature, with the consequent enhanced
possibility for confusion and deception if they were to undertake
certain kinds of advertising."
425 U.S. at
425 U. S. 773,
n. 25.
[
Footnote 11]
Even as to price advertising, the Court suggested that some
regulation would be permissible. For example, the bar may "define
the services that must be included in an advertised package. . . ."
433 U.S. at
433 U. S. 373,
n. 28, and the bar could require disclaimers or explanations to
avoid false hopes,
id. at
433 U. S. 384
("[S]ome limited supplementation, 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").
Presumably, too, the bar may designate the services that may be
considered "routine." Moreover, the Court might reach a different
decision as to price advertising on a different record. If
experience with particular price advertising indicates that the
public is in fact misled or that disclaimers are insufficient to
prevent deception, then the matter would come to the Court in an
entirely different posture. The commercial speech doctrine is
itself based in part on certain empirical assumptions as to the
benefits of advertising. If experience proves that certain forms of
advertising are in fact misleading, although they did not appear at
first to be "inherently" misleading, the Court must take such
experience into account.
Cf. Bates v. State Bar of
Arizona, 433 U.S. at
433 U. S. 372
("We are not persuaded that restrained professional advertising . .
. will be misleading").
[
Footnote 12]
See Friedman v. Rogers, 440 U. S.
1,
440 U. S. 11, n.
9 (1979) ("When dealing with restrictions on commercial speech, we
frame our decisions narrowly,
allowing modes of regulation [of
commercial speech] that might be impermissible in the realm of
noncommercial expression.'") (quoting Ohralik v. Ohio State Bar
Assn., 436 U. S. 447,
436 U. S. 456
(1978)); Virginia Pharmacy Board v. Virginia Citizens Consumer
Council, 425 U.S. at 425 U. S.
771-772, and n. 24 ("Untruthful speech, commercial or
otherwise, has never been protected for its own sake. . . .
Obviously, much commercial speech is not provably false, or even
wholly false, but only deceptive or misleading. We foresee no
obstacle to a State's dealing effectively with this problem. The
First Amendment, as we construe it today, does not prohibit the
State from insuring that the stream of commercial information flow
cleanly, as well as freely") (citations and footnote
omitted).
[
Footnote 13]
In addition, the
Bates Court noted that reasonable
restrictions on the time, place, and manner of advertising would
still be permissible, while "the special problems of advertising on
the electronic broadcast media will warrant special consideration."
433 U.S. at
433 U. S.
384.
[
Footnote 14]
The Model Rules of Professional Conduct proposed by the American
Bar Association Commission on Evaluation of Professional Standards
provide that
"a lawyer may advertise services through public media, such as a
telephone directory, legal directory, newspaper or other
periodical, radio or television, or through written communication
not involving personal contact."
Rule 7.2(a). Rule 7.1 prohibits misleading advertising in the
following terms:
"A lawyer shall not make any false or misleading communication
about the lawyer or the lawyer's services. 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."
Commentary following the Rule suggests that the Rule would
prohibit
"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."
It is understood that the format of the proposed new Rules will
be considered by the House of Delegates of the American Bar
Association at its 1982 mid-year meeting, and that the substance of
the Rules will be considered at the 1982 annual meeting. We, of
course, imply no view as to these proposals.
[
Footnote 15]
See Central Hudson Gas & Electric Corp. v. Public
Service Comm'n, 447 U.S. at
447 U. S.
566:
"In commercial speech cases, then, a four-part analysis has
developed. At the outset, we must determine whether the expression
is protected by the First Amendment. For commercial speech to come
within that provision, it at least must concern lawful activity and
not be misleading. Next, we ask whether the asserted governmental
interest is substantial. If both inquiries yield positive answers,
we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more
extensive than is necessary to serve that interest."
As the discussion in the text above indicates, the
Central
Hudson formulation must be applied to advertising for
professional services with the understanding that the special
characteristics of such services afford opportunities to mislead
and confuse that are not present when standardized products or
services are offered to the public.
See n 10,
supra.
[
Footnote 16]
We recognize, of course, that the generalizations summarized
above do not afford precise guidance to the bar and the courts.
They do represent the general principles that may be distilled from
our decisions in this developing area of the law. As they are
applied on a case-by-case basis -- as in
455 U.
S.
[
Footnote 17]
We note that the restrictions placed upon appellant's speech by
Rule 4 imposed a restriction only upon commercial speech --
"expression related solely to the economic interests of the speaker
and its audience."
Central Hudson Gas & Electric Corp. v.
Public Service Comm'n, supra, at
447 U. S. 561.
By describing his services and qualifications, appellant's sole
purpose was to encourage members of the public to engage him for
personal profit.
[
Footnote 18]
At oral argument, counsel for appellant stated that the
constitutionality of the disclaimer requirement was not before the
Court, and that "[t]he disciplinary action was not based on a
failure to include the disclaimer." Tr. of Oral Arg. 16.
Although the Supreme Court of Missouri did not explicitly
indicate whether appellant was in violation of each and every one
of the charges made against him, that is the implication of the
opinion, particularly when read in light of the more detailed
dissenting opinions.
[
Footnote 19]
Rule 7.2(b) of the proposed Model Rules of Professional Conduct
of the American Bar Association requires that "[a] copy or
recording of an advertisement or written communication shall be
kept for one year after its dissemination."
[
Footnote 20]
The Advisory Committee argues that a general mailing from a
lawyer would be "frightening" to the public unaccustomed to
receiving letters from law offices. If indeed this is likely, the
lawyer could be required to stamp "This is an Advertisement" on the
envelope.
See Consolidated Edison Co. v. Public Service
Comm'n, 447 U. S. 530,
447 U. S.
541-542 (1980) (billing insert is not a significant
intrusion upon privacy, and privacy interest can be protected
through means other than a general prohibition).