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
owed 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 be liable for
Page 471 U. S. 627
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. Pp.
471 U. S.
637-656.
(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. Pp.
471 U. S.
637-638.
(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. Pp.
471 U. S.
639-647.
(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
Page 471 U. S. 628
would be difficult for the State to point to any particular
illustration and prove that it is misleading or manipulative. Pp.
471 U. S.
647-649.
(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. Pp.
471 U. S.
650-653.
(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. Pp.
471 U. S.
654-655.
10 Ohio St.3d 44, 461 N.E.2d 883, affirmed in part and reversed
in part.
WHITE, J., delivered the opinion of the Court, in which BLACKMUN
and STEVENS, JJ., joined; in Parts I, II, III, and IV of which
BRENNAN and MARSHALL, JJ., joined; and in Parts I, II, V, and VI of
which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined.
BRENNAN J., filed an opinion concurring in part, concurring in the
judgment in part, and dissenting in part, in which MARSHALL, J.,
joined,
post, p.
471 U. S. 656.
O'CONNOR, J., filed an opinion concurring in part, concurring in
the judgment in part, and dissenting in part, in which BURGER,
C.J., and REHNQUIST, J., joined,
post, p.
471 U. S. 673.
POWELL, J., took no part in the decision of the case.
Page 471 U. S. 629
JUSTICE WHITE delivered the opinion of the Court.
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
Page 471 U. S. 630
of DRUNK DRIVING." [
Footnote
1] 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. [
Footnote 2] 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:
Page 471 U. S. 631
"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"
[
Footnote 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
Page 471 U. S. 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; [
Footnote 4]
Page 471 U. S. 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
Page 471 U. S. 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.
The charges against appellant were heard by a panel of the Board
of Commissioners on Grievances and Discipline of the Supreme Court
of Ohio. Appellant's primary defense to the charges against him was
that Ohio's rules restricting the content of advertising by
attorneys were unconstitutional under this Court's decisions in
Bates v. State Bar of Arizona, 433 U.
S. 350 (1977), and
In re R.M.J., 455 U.
S. 191 (1982). In support of his contention that the
State had not provided justification for its rules sufficient to
withstand the First Amendment scrutiny called for by those
decisions, appellant proffered the testimony of expert witnesses
that unfettered advertising by attorneys was economically
beneficial, and that appellant's advertising in particular was
socially valuable in that it served to inform members of the public
of their legal rights and of the potential health hazards
associated with the Dalkon Shield. Appellant also put on the stand
two of the women who had responded to his advertisements, both of
whom testified that they would not have learned of their legal
claims had it not been for appellant's advertisement.
The panel found that appellant's use of advertising had violated
a number of Disciplinary Rules. The panel accepted the contention
that the drunken driving advertisement was deceptive, but its
reasoning differed from that of the Office of Disciplinary Counsel:
the panel concluded that, because the advertisement failed to
mention the common practice of plea bargaining in drunken driving
cases, it might be deceptive to potential clients who would be
unaware of the likelihood that they would both be found guilty (of
a lesser offense) and be liable for attorney's fees (because they
had not been convicted of drunken driving). The panel also found
that the use of an illustration in appellant's Dalkon Shield
advertisement
Page 471 U. S. 635
violated DR 2-101(B), that the ad's failure to disclose the
client's potential liability for costs even if her suit were
unsuccessful violated both DR 2-101(A) and DR 2-101 (B)(15), that
the advertisement constituted self-recommendation in violation of
DR 2-103(A), and that appellant's acceptance of offers of
employment resulting from the advertisement violated DR 2-104(A).
[
Footnote 5]
The panel rejected appellant's arguments that Ohio's regulations
regarding the content of attorney advertising were unconstitutional
as applied to him. The panel noted that neither
Bates nor
In re R.M.J. had forbidden all regulation of attorney
advertising, and that both of those cases had involved advertising
regulations substantially more restrictive than Ohio's. The panel
also relied heavily on
Ohralik v. Ohio State Bar Assn.,
436 U. S. 447
(1978), in which this Court upheld Ohio's imposition of discipline
on an attorney who had engaged in in-person solicitation. The panel
apparently concluded that the interests served by the application
of Ohio's rules to advertising that contained legal advice and
solicited clients to pursue a particular legal claim were as
substantial as the interests at stake in
Ohralik.
Accordingly, the panel rejected appellant's constitutional defenses
and recommended that he be publicly reprimanded for his violations.
The Board of Commissioners adopted the panel's findings in full,
but recommended the sanction of indefinite suspension from the
practice of law rather than the more lenient punishment proposed by
the panel.
The Supreme Court of Ohio, in turn, adopted the Board's findings
that appellant's advertisements had violated the Disciplinary Rules
specified by the hearing panel. 10 Ohio St.3d 44, 461 N.E.2d 883
(1984). The court also agreed with the Board that the application
of Ohio's rules to appellant's advertisements did not offend the
First Amendment. The
Page 471 U. S. 636
court pointed out that
Bates and
In re R.M.J.
permitted regulations designed to prevent the use of deceptive
advertising and that
R.M.J. had recognized that even
nondeceptive advertising might be restricted if the restriction was
narrowly designed to achieve a substantial state interest. The
court held that disclosure requirements applicable to
advertisements mentioning contingent fee arrangements served the
permissible goal of ensuring that potential clients were not misled
regarding the terms of the arrangements. In addition, the court
held, it was "allowable" to prevent attorneys from claiming
expertise in particular fields of law in the absence of standards
by which such claims might be assessed, and it was "reasonable" to
preclude the use of illustrations in advertisements and to prevent
attorneys from offering legal advice in their advertisements,
although the court did not specifically identify the interests
served by these restrictions. Having determined that appellant's
advertisements violated Ohio's Disciplinary Rules and that the
First Amendment did not forbid the application of those rules to
appellant, the court concluded that appellant's conduct warranted a
public reprimand.
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, 469 U.S.
813 (1984), and now affirm in part and reverse in part. [
Footnote 6]
Page 471 U. S. 637
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 436 U. S.
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. [Footnote 7]
Page 471 U. S. 638
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
447 U. S. 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
nondeceptive 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. [
Footnote 8]
Page 471 U. S. 639
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
Page 471 U. S. 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. [
Footnote
9] Rather, the advertisement reported the indisputable fact
that the Dalkon Shield has spawned an impressive number of lawsuits
[
Footnote 10] 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. [
Footnote 11]
Page 471 U. S. 641
The State's power to prohibit advertising that is "inherently
misleading,"
see In re R.M.J., 455 U.S. at
455 U. S. 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
436 U. S.
464-466. 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
436 U. S. 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
Page 471 U. S. 642
professional employment by a lawyer does not stand on a par with
truthful advertising about the availability and terms of routine
legal services."
Id. at
436 U. S.
455.
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 overreaching 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
Page 471 U. S. 643
3 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
433 U. S. 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.
Page 471 U. S. 644
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
447 U. S. 565,
447 U. S.
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."
455 U.S. at
455 U. S. 203.
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
436 U. S.
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
Page 471 U. S. 645
truthful and helpful, much more so than is the case with other
goods or services. [
Footnote
12] 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
Page 471 U. S. 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. [
Footnote 13]
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
Page 471 U. S. 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
Page 471 U. S. 648
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,
431 U. S. 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
Page 471 U. S. 649
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 burdensome 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.
Page 471 U. S. 650
V
Appellant contends that assessing the validity of the Ohio
Supreme Court's decision to discipline him for his failure to
include in the Dalkon Shield advertisement the information that
clients might be liable for significant litigation costs even if
their lawsuits were unsuccessful entails precisely the same inquiry
as determining the validity of the restrictions on advertising
content discussed above. In other words, he suggests that the State
must establish either that the advertisement, absent the required
disclosure, would be false or deceptive or that the disclosure
requirement serves some substantial governmental interest other
than preventing deception; moreover, he contends that the State
must establish that the disclosure requirement directly advances
the relevant governmental interest, and that it constitutes the
least restrictive means of doing so. Not surprisingly, appellant
claims that the State has failed to muster substantial evidentiary
support for any of the findings required to support the
restriction.
Appellant, however, overlooks material differences between
disclosure requirements and outright prohibitions on speech. In
requiring attorneys who advertise their willingness to represent
clients on a contingent fee basis to state that the client may have
to bear certain expenses even if he loses, Ohio has not attempted
to prevent attorneys from conveying information to the public; it
has only required them to provide somewhat more information than
they might otherwise be inclined to present. We have, to be sure,
held that, in some instances, compulsion to speak may be as
violative of the First Amendment as prohibitions on speech.
See, e.g., Wooley v. Maynard, 430 U.
S. 705 (1977);
Miami Herald Publishing Co. v.
Tornillo, 418 U. S. 241
(1974). Indeed, in
West Virginia State Bd. of Ed. v.
Barnette, 319 U. S. 624
(1943), the Court went so far as to state that "involuntary
affirmation could be commanded only on even more immediate and
urgent grounds than silence."
Id. at
319 U. S.
633.
Page 471 U. S. 651
But the interests at stake in this case are not of the same
order as those discussed in
Wooley, Tornillo, and
Barnette. Ohio has not attempted to
"prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess
by word or act their faith therein."
319 U.S. at
319 U. S. 642.
The State has attempted only to prescribe what shall be orthodox in
commercial advertising, and its prescription has taken the form of
a requirement that appellant include in his advertising purely
factual and uncontroversial information about the terms under which
his services will be available. Because the extension of First
Amendment protection to commercial speech is justified principally
by the value to consumers of the information such speech provides,
see Virginia Pharmacy Board v. Virginia Citizens Consumer
Council, Inc., 425 U. S. 748
(1976), appellant's constitutionally protected interest in not
providing any particular factual information in his advertising is
minimal. 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
455 U. S. 201.
Accord, Central Hudson Gas & Electric, 447 U.S. at
447 U. S. 565;
Bates v. State Bar of Arizona, 433 U.S. at
433 U. S. 384;
Virginia Pharmacy Bd., supra, at
425 U. S. 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. [
Footnote 14]
Page 471 U. S. 652
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
Page 471 U. S. 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
380 U. S.
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. [
Footnote 15]
Page 471 U. S. 654
VI
Finally, we address appellant's argument that he was denied
procedural due process by the manner in which discipline was
imposed on him in connection with his drunken driving
advertisement. Appellant's contention is that the theory relied on
by the Ohio Supreme Court and its Board of Commissioners as to how
the advertisement was deceptive was different from the theory
asserted by the Office of Disciplinary Counsel in its complaint.
[
Footnote 16] We cannot
agree that this discrepancy violated the constitutional guarantee
of due process.
Under the law of Ohio, bar discipline is the responsibility of
the Ohio Supreme Court. Ohio Const., Art. IV, § 2(B)(1)(g). The
Board of Commissioners on Grievances and Discipline formally serves
only as a body that recommends discipline to the Supreme Court; it
has no authority to impose discipline itself.
See Govt.Bar
Rule V(2), (16)-(20). That the Board of Commissioners chose to make
its recommendation of discipline on the basis of reasoning
different from that of the Office of Disciplinary Counsel is of
little moment; what is important is that the Board's
recommendations put appellant on notice of the charges he had to
answer to the satisfaction of the Supreme Court of Ohio. Appellant
does not contend that he was afforded no opportunity to respond to
the Board's recommendation; indeed, the Ohio rules appear to
provide ample opportunity for response to Board recommendations,
and it appears that appellant availed himself of that opportunity.
[
Footnote 17]
Page 471 U. S. 655
The notice and opportunity to respond afforded appellant were
sufficient to satisfy the demands of due process. [
Footnote 18]
VII
The Supreme Court of Ohio issued a public reprimand
incorporating by reference its opinion finding that appellant had
violated Disciplinary Rules 2-101(A), 2-101(B), 2-101 (B)(15),
2-103(A), and 2-104(A). That judgment is affirmed 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 was based on
appellant's use of an
Page 471 U. S. 656
illustration in his advertisement in violation of DR 2-101(B)
and his offer of legal advice in his advertisement in violation of
DR 2-103(A) and 2-104(A), the judgment is reversed.
It is so ordered.
JUSTICE POWELL took no part in the decision of this case.
[
Footnote 1]
The advertisement notified the potential client that "[e]xpert
witness (chemist) fees must be paid." The only other information
contained in the advertisement was the name of appellant's firm,
its telephone number, and its address.
[
Footnote 2]
An intrauterine device (or IUD) is
"a plastic or metal coil, spiral, or other shape, about 25 mm
long, that is inserted into the cavity of the womb to prevent
conception. Its exact mode of action is unknown, but it is thought
to interfere with implantation of the embryo."
Urdang Dictionary of Current Medical Terms 220 (1981). The
Dalkon Shield is a variety of IUD that was marketed in the early
1970's. Because of evidence that the Shield was associated with a
variety of health problems among users, the Shield was withdrawn
from the market in 1974. In 1980, the manufacturer advised
physicians that they should remove the Shield from any woman still
using it, and in 1983, the Food and Drug Administration followed
suit. In 1984, the manufacturer instituted a mass-media campaign
urging women to have the device removed.
See Robins Mounts
Drive to Settle Dalkon Suits, National Law Journal, Dec. 24, 1984,
p. 1, col. 3.
[
Footnote 3]
DR 2-101(A) provides that
"[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
containing a false, fraudulent, misleading, deceptive,
self-laudatory or unfair statement or claim."
[
Footnote 4]
Disciplinary Rule 2-101(B), in its entirety, provides:
"In order to facilitate the process of informed selection of a
lawyer by potential consumers of legal services, a lawyer may
publish or broadcast, subject to DR 2-103, in print media or over
radio or television. Print media includes only regularly published
newspapers, magazines and other periodicals, classified telephone
directories, city, county and suburban directories, law directories
and law lists. The information disclosed by the lawyer in such
publication or broadcast shall comply with DR 2-101(A)
[
see n 3,
supra] and be presented in a dignified manner without the
use of drawings, illustrations, animations, portrayals,
dramatizations, slogans, music, lyrics or the use of pictures,
except for the use of pictures of the advertising lawyer, or the
use of a portrayal of the scales of justice. Only the following
information may be published or broadcast:"
"(1) Name, including name of law firm and names of professional
associates, addresses and telephone numbers;"
"(2) One or more fields of law in which the lawyer or law firm
is available to practice, but may not include a statement that the
practice is limited to or concentrated in one or more fields of law
or that the lawyer or law firm specializes in a particular field of
law unless authorized under DR 2-105;"
"(3) Age;"
"(4) Date of admission to the bar of a state, or federal court
or administrative board or agency;"
"(5) Schools attended, with dates of graduation, degrees and
other scholastic distinctions;"
"(6) Public or quasi-public offices;"
"(7) Military service;"
"(8) Published legal authorships;"
"(9) Holding scientific, technical and professional licenses,
and memberships in such associations or societies;"
"(10) Foreign language ability;"
"(11) Whether credit cards or other credit arrangements are
accepted;"
"(12) Office and telephone answering service hours;"
"(13) Fee for an initial consultation;"
"(14) Availability upon request of a written schedule of fees or
an estimate of the fee to be charged for specific services;"
"(15) Contingent fee rates subject to DR 2-106(C), provided that
the statement discloses whether percentages are computed before or
after deduction of court costs and expenses;"
"(16) Hourly rate, provided that the statement discloses that
the total fee charged will depend upon the number of hours which
must be devoted to the particular matter to be handled for each
client and the client is entitled without obligation to an estimate
of the fee likely to be charged, in print size at least equivalent
to the largest print used in setting forth the fee
information;"
"(17) Fixed fees for specific legal services;"
"(18) Legal teaching positions, memberships, offices, committee
assignments, and section memberships in bar associations;"
"(19) Memberships and offices in legal fraternities and legal
societies;"
"(20) In law directories and law lists only, names and addresses
of references, and, with their written consent, names of clients
regularly represented."
[
Footnote 5]
The panel did not find that the advertisement's alleged lack of
"dignity" or its inclusion of information not allowed by DR
2-101(B)(1)-(20) constituted an independent violation.
[
Footnote 6]
In its brief on the merits, appellee suggests that, because
appellant received only a public reprimand -- the least severe
discipline that may be imposed on an attorney who violates one of
Ohio's Disciplinary Rules -- the judgment below must be affirmed if
any one of the findings of a disciplinary violation is sustainable.
We disagree. The reprimand imposed on appellant incorporated the
opinion of the Supreme Court of Ohio as well as the report of the
Board of Bar Commissioners. Thus, the reprimand constituted a
public chastisement of appellant for each of the offenses
specified. A reprimand that specified fewer infractions would be a
different punishment, and would be a lesser deterrent to future
advertising.
[
Footnote 7]
Appellant's advertising contains statements regarding the legal
rights of persons injured by the Dalkon Shield that, in another
context, would be fully protected speech. That this is so does not
alter the status of the advertisements as commercial speech:
"We have made clear that advertising which 'links a product to a
current public debate' is not thereby entitled to the
constitutional protection afforded noncommercial speech.
Central Hudson Gas & Electric Corp. v. Public Service
Comm'n of New York, 447 U.S. at
447 U. S.
563, n. 5. A company has the full panoply of protections
available to its direct comments on public issues, so there is no
reason for providing similar constitutional protection when such
statements are made in the context of commercial transactions.
See ibid."
Bolger v. Young Drug Products Corp., 463 U. S.
60,
463 U. S. 68
(1983) (footnote omitted). In this case, Ohio has placed no general
restrictions on appellant's right to publish facts or express
opinions regarding Dalkon Shield litigation; Ohio's Disciplinary
Rules prevent him only from conveying those facts and opinions in
the form of advertisements of his services as an attorney.
[
Footnote 8]
In its brief on the merits, appellee Office of Disciplinary
Counsel advances the surprising contention that the Court ought not
permit appellant to raise his constitutional defenses to Ohio's
disciplinary proceedings. Appellee's argument apparently is that,
because appellant could have challenged the constitutionality of
the rules in an action for a declaratory judgment in federal court,
he was not entitled to violate them and raise their
unconstitutionality defensively. This odd argument stands ordinary
jurisprudential principles on their heads. We have often emphasized
that, in our federal system, it is preferable that constitutional
attacks on state statutes be raised defensively in state court
proceedings, rather than in proceedings initiated in federal court.
See, e.g., Younger v. Harris, 401 U. S.
37 (1971). This principle is as applicable to attorney
disciplinary proceedings as it is to criminal cases.
Middlesex
County Ethics Committee v. Garden State Bar Assn.,
457 U. S. 423
(1982). Accordingly, it was perfectly appropriate for appellant to
refrain from an anticipatory challenge to Ohio's rules and to trust
that any proceedings the State might initiate would provide a forum
in which he could assert his First Amendment rights.
[
Footnote 9]
The absence from appellant's advertising of any claims of
expertise or promises relating to the quality of appellant's
services renders the Ohio Supreme Court's statement that "an
allowable restriction for lawyer advertising is that of asserted
expertise" beside the point. Appellant stated only that he had
represented other women in Dalkon Shield litigation -- a statement
of fact not in itself inaccurate. Although our decisions have left
open the possibility that States may prevent attorneys from making
nonverifiable claims regarding the quality of their services,
see Bates v. State Bar of Arizona, 433 U.
S. 350;
433 U. S. 366
(1977), they do not permit a State to prevent an attorney from
making accurate statements of fact regarding the nature of his
practice merely because it is possible that some readers will infer
that he has some expertise in those areas.
See In re
R.M.J., 455 U. S. 191,
455 U. S.
203-205 (1982).
[
Footnote 10]
By 1979, it was "estimated that 2500 claims [had] been made . .
. for injuries allegedly caused by [the Dalkon Shield]." Van Dyke,
The Dalkon Shield: A "Primer" in IUD Liability, 6 West.St.U.L.Rev.
1, 3, n. 7 (1978). By mid-1980, the number of lawsuits had risen to
4,000. Bamford, Dalkon Shield Starts Losing in Court, 2 American
Lawyer 31 (July 1980). By the end of 1984, it was reported that the
manufacturer had settled or satisfied judgments in 6,289, cases and
that over 3,600 cases were still pending.
See Robins
Mounts Drive to Settle Dalkon Suits, National Law Journal, Dec. 24,
1984, p. 1, col. 3. Plaintiffs have succeeded in winning favorable
settlements and jury verdicts against the Shield's manufacturer.
See, e.g., Worsham v. A. H. Robins Co., 734 F.2d 676 (CA11
1984) (affirming jury verdict);
Gardiner v. A. H. Robins
Co., 747 F.2d 1180 (CA8 1984) (noting settlement of
cases).
[
Footnote 11]
In 1983, the Ohio Supreme Court explicitly adopted the rule
that
"[w]hen an injury does not manifest itself immediately, the
cause of action arises upon the date on which the plaintiff is
informed by competent medical authority that he has been injured,
or upon the date on which, by the exercise of reasonable diligence,
he should have become aware that he has been injured, whichever
comes first."
O'stricker v. Jim Walter Corp., 4 Ohio St.3d 84, 90,
447 N.E.2d 727, 732.
[
Footnote 12]
The State's argument may also rest in part on a suggestion that
even completely accurate advice regarding the legal rights of the
advertiser's audience may lead some members of the audience to
initiate meritless litigation against innocent defendants. To the
extent that this is the State's contention, it is unavailing. To be
sure, some citizens, accurately informed of their legal rights, may
file lawsuits that ultimately turn out not to be meritorious. But
the State is not entitled to prejudge the merits of its citizens'
claims by choking off access to information that may be useful to
its citizens in deciding whether to press those claims in court. As
we observed in
Bates v. State Bar of Arizona, 433 U.S. at
433 U. S. 375,
n. 31, if the State's concern is with abuse of process, it can best
achieve its aim by enforcing sanctions against vexatious
litigation. In addition, there would be no impediment to a rule
forbidding attorneys to use advertisements soliciting clients for
nuisance suits -- meritless claims filed solely to harass a
defendant or coerce a settlement. Because a client has no legal
right to file such a claim knowingly, advertisements designed to
stir up such litigation may be forbidden because they propose an
"illegal transaction."
See Pittsburgh Press Co. v. Human
Relations Comm'n, 413 U. S. 376
(1973).
[
Footnote 13]
The American Bar Association evidently shares the view that
weeding out false or misleading advertising by attorneys from
advertising that is accurate and nonmisleading is neither
impractical nor unduly burdensome: the ABA's new Model Rules of
Professional Conduct eschew all regulation of the content of
advertising that is not "false or misleading." ABA Model Rule of
Professional Conduct 7.2 (1983). A recent staff report of the
Federal Trade Commission has also concluded that application of a
"false or deceptive" standard to attorney advertising would not
pose problems distinct from those presented by the regulation of
advertising generally.
See Federal Trade Commission Staff
Report, Improving Consumer Access to Legal Services: The Case for
Removing Restrictions on Truthful Advertising 149-155 (1984).
[
Footnote 14]
We reject appellant's contention that we should subject
disclosure requirements to a strict "least restrictive means"
analysis under which they must be struck down if there are other
means by which the State's purposes may be served. Although we have
subjected outright prohibitions on speech to such analysis, all our
discussions of restraints on commercial speech have recommended
disclosure requirements as one of the acceptable less restrictive
alternatives to actual suppression of speech.
See, e.g.,
Central Hudson Gas & Electric, 447 U.S. at
447 U. S. 565.
Because the First Amendment interests implicated by disclosure
requirements are substantially weaker than those at stake when
speech is actually suppressed, we do not think it appropriate to
strike down such requirements merely because other possible means
by which the State might achieve its purposes can be hypothesized.
Similarly, we are unpersuaded by appellant's argument that a
disclosure requirement is subject to attack if it is
"underinclusive" -- that is, if it does not get at all facets of
the problem it is designed to ameliorate. As a general matter,
governments are entitled to attack problems piecemeal, save where
their policies implicate rights so fundamental that strict scrutiny
must be applied.
See, e.g., Zablocki v. Redhail,
434 U. S. 374,
434 U. S. 390
(1978). The right of a commercial speaker not to divulge accurate
information regarding his services is not such a fundamental
right.
[
Footnote 15]
Appellant suggests that the disclosures required by the Ohio
Supreme Court would in fact be unduly burdensome and would tend to
chill advertising of contingent fee arrangements. Evaluation of
this claim is somewhat difficult in light of the Ohio court's
failure to specify precisely what disclosures were required. The
gist of the report of the Board of Commissioners on this point,
however, was that appellant's advertising was potentially deceptive
because it "left standing the impression that, if there were no
recovery, the client would owe nothing." App. to Juris. Statement
14a. Accordingly, the report at a minimum suggests that an attorney
advertising a contingent fee must disclose that a client may be
liable for costs even if the lawsuit is unsuccessful. The report
and the opinion of the Ohio Supreme Court also suggest that the
attorney's contingent fee rate must be disclosed,
see
ibid.; 10 Ohio St.3d 44, 48, 461 N.E.2d 883, 886 (1984).
Neither requirement seems intrinsically burdensome; and they
certainly cannot be said to be unreasonable as applied to
appellant, who included in his advertisement no information
whatsoever regarding costs and fee rates. This case does not
provide any factual basis for finding that Ohio's disclosure
requirements are unduly burdensome.
The vagueness of the Ohio Supreme Court's opinion regarding
precisely what an attorney must disclose in an advertisement
mentioning a contingent fee is, however, unfortunate. It is also
worth noting that DR 2-101(B)(15), the only explicit reference in
the Ohio rules to a disclosure requirement involving contingent
fees, does not, on its face, require any disclosures except when an
advertisement mentions contingent fee rates -- which appellant's
advertisement did not do. Because
"[a] relevant inquiry in appraising a decision to disbar is
whether the attorney stricken from the rolls can be deemed to have
been on notice that the courts would condemn the conduct for which
he was removed,"
In re Ruffalo, 390 U. S. 544,
390 U. S. 554
(1968) (WHITE, J., concurring in result), it may well be that for
Ohio actually to disbar an attorney on the basis of its disclosure
requirements as they have been worked out to this point would raise
significant due process concerns. Given the reasonableness of the
decision that appellant's omissions created the potential for
deception of the public, however, we see no infirmity in a decision
to issue a public reprimand on the basis of those omissions. And,
of course, were Ohio to articulate its disclosure rules regarding
contingent fees in such a way that they provided a sure guide to
the advertising attorney, neither the Due Process Clause nor the
First Amendment would preclude disbarment as a penalty for the
violation of those rules.
[
Footnote 16]
See supra at
471 U. S.
634.
[
Footnote 17]
Appellant suggests that he was prejudiced by his inability to
present evidence relating to the Board's factual conclusion that it
was a common practice for persons charged with drunken driving to
plead guilty to lesser offenses. If this were in fact the case,
appellant's due process objection might be more forceful. But
appellant does not -- and probably cannot -- seriously dispute that
guilty pleas to lesser offenses are common in drunken driving
cases, nor does he argue that he was precluded from arguing before
the Ohio Supreme Court that it was improper for the Board of
Commissioners to take judicial notice of the prevalence of such
pleas. Under these circumstances, we see no violation of due
process in the Ohio Supreme Court's acceptance of the Board's
factual conclusions.
See American Trucking Assns., Inc. v.
Frisco Transportation Co., 358 U. S. 133, 144
(1958).
[
Footnote 18]
Appellant's reliance on
In re Ruffalo, 390 U.
S. 544 (1968), is misplaced. Although the majority in
that case did hold that a change in the charges against the
petitioner during proceedings before the Ohio Board of
Commissioners violated due process, the feature of that case that
was particularly offensive was that the change was such that the
very evidence put on by the petitioner in defense of the original
charges became, under the revised charges, inculpatory. Thus, in
that case, the original charges functioned as a "trap,"
id. at
390 U. S. 551,
for they lulled the petitioner into presenting evidence that
"irrevocably assur[ed] his disbarment under charges not yet made."
Id. at
390 U. S. 551,
n. 4. In this case, the variance between the theory of the Office
of Disciplinary Counsel and the Board of Commissioners had no such
prejudicial effect on appellant.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in
part, concurring in the judgment in part, and dissenting in
part.
I fully agree with the Court that a State may not discipline
attorneys who solicit business by publishing newspaper
advertisements that contain "truthful and nondeceptive information
and advice regarding the legal rights of potential clients" and
"accurate and nondeceptive illustration[s]."
Ante at
471 U. S. 647,
471 U. S. 649.
I therefore join Parts I-IV of the Court's opinion, and I join the
Court's judgment set forth in Part VII to the extent it reverses
the Supreme Court of Ohio's public reprimand of the appellant
Philip Q. Zauderer for his violations of Disciplinary Rules
2-101(B), 2-103(A), and 2-104(A).
With some qualifications, I also agree with the conclusion in
Part V of the Court's opinion that a State may impose
commercial-advertising disclosure requirements that are "reasonably
related to the State's interest in preventing deception of
consumers."
Ante at
471 U. S. 651.
I do not agree, however, that the State of Ohio's vaguely expressed
disclosure requirements fully satisfy this standard, and in any
event I believe that Ohio's punishment of Zauderer for his alleged
infractions of those requirements violated important due process
and First Amendment guarantees. In addition, I believe the manner
in which Ohio has punished Zauderer for publishing the "drunk
driving" advertisement violated fundamental principles of
procedural due process. I therefore concur in part and dissent in
part from Part V of the Court's opinion, dissent from Part VI, and
dissent from the judgment set forth in Part VII insofar as it
affirms the Supreme Court
Page 471 U. S. 657
of Ohio's public reprimand
"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."
Ante at
471 U. S.
655.
I
A
The Court concludes that the First Amendment's protection of
commercial speech is satisfied so long as a disclosure requirement
is "reasonably related" to preventing consumer deception, and it
suggests that this standard "might" be violated if a disclosure
requirement were "unjustified" or "unduly burdensome."
Ante at
471 U. S. 651.
I agree with the Court's somewhat amorphous "reasonable
relationship" inquiry only on the understanding that it comports
with the standards more precisely set forth in our previous
commercial speech cases. Under those standards, regulation of
commercial speech -- whether through an affirmative disclosure
requirement or through outright suppression [
Footnote 2/1] -- is "reasonable" only
Page 471 U. S. 658
to the extent that a State can demonstrate a legitimate and
substantial interest to be achieved by the regulation.
In re
R.M.J., 455 U. S. 191,
455 U. S. 203
(1982);
Central Hudson Gas & Electric Corp. v. Public
Service Comm'n of New York, 447 U. S. 557,
447 U. S. 564
(1980). Moreover, the regulation must directly advance the state
interest and "may extend only as far as the interest it serves."
Id. at
477 U. S. 565.
See also id. at
447 U. S. 564
("[T]he regulatory technique must be in proportion to [the State's]
interest"). Where the State imposes regulations to guard against
"the potential for deception and confusion" in commercial speech,
those regulations "may be no broader than reasonably necessary to
prevent the deception."
In re R.M.J., supra, at
455 U. S. 203.
See also Virginia Pharmacy Board v. Virginia Citizens Consumer
Council, Inc., 425 U. S. 748,
425 U. S. 772,
n. 24 (1976) (disclosure requirements are permissible only to the
extent they "are necessary to prevent [the advertisement from]
being deceptive");
Bates v. State Bar of Arizona,
433 U. S. 350,
433 U. S. 384
(1977) (States may require "some
limited supplementation .
. . so as to assure that the consumer is not misled") (emphasis
added). [
Footnote 2/2]
Because of the First Amendment values at stake, courts must
exercise careful scrutiny in applying these standards. Thus a State
may not rely on "highly speculative" or "tenuous"
Page 471 U. S. 659
arguments in carrying its burden of demonstrating the legitimacy
of its commercial speech regulations.
Central Hudson Gas &
Electric Corp. v. Public Service Comm'n of New York, supra, at
447 U. S. 569.
Where a regulation is addressed to allegedly deceptive advertising,
the State must instead demonstrate that the advertising either "is
inherently likely to deceive" or must muster record evidence
showing that "a particular form or method of advertising has in
fact been deceptive,"
In re R.M.J., supra, at
455 U. S. 202,
and it must similarly demonstrate that the regulations directly and
proportionately remedy the deception. Where States have failed to
make such showings, we have repeatedly struck down the challenged
regulations. [
Footnote 2/3]
As the Court acknowledges, it is "somewhat difficult" to apply
these standards to Ohio's disclosure requirements "in light of the
Ohio court's failure to specify precisely what disclosures were
required."
Ante at
471 U. S. 653,
n. 15. It is also somewhat difficult to determine precisely what
disclosure requirements the Court approves today. The Supreme Court
of Ohio appears to have imposed three overlapping requirements,
each of which must be analyzed under the First
Page 471 U. S. 660
Amendment standards set forth above. First, the court concluded
that "a lawyer advertisement which refers to contingent fees"
should indicate whether "additional costs . . . might be assessed
the client." 10 Ohio St.3d 44, 48, 461 N.E.2d 883, 886 (1984). The
report of the Board of Commissioners on Grievances and Discipline
of the Ohio Supreme Court explained that such a requirement is
necessary to guard against "the impression that, if there were no
recovery, the client would owe nothing." App. to Juris. Statement
14a. I agree with the Court's conclusion that, given the general
public's unfamiliarity with the distinction between fees and costs,
a State may require an advertising attorney to include a costs
disclaimer so as to avoid the potential for misunderstanding,
ante at
471 U. S. 653
-- provided the required disclaimer is "no broader than reasonably
necessary to prevent the deception,"
In re R.M.J., supra,
at
455 U. S.
203.
Second, the report and opinion provide that an attorney
advertising his availability on a contingent fee basis must
"specifically expres[s]" his rates. 10 Ohio St.3d at 48, 461 N.E.2d
at 886;
see also App. to Juris.Statement 14a. The Court's
analysis of this requirement -- which the Court characterizes as a
"suggest[ion],"
ante at
471 U. S. 653,
n. 15 -- is limited to the passing observation that the requirement
does not "see[m] intrinsically burdensome,"
ibid. The
question of burden, however, is irrelevant unless the State can
first demonstrate that the rate-publication requirement directly
and proportionately furthers a "substantial interest."
In re
R.M.J., 455 U.S. at
455 U. S. 203.
Yet an attorney's failure to specify a particular percentage rate
when advertising that he accepts cases on a contingent fee basis
can in no way be said to be "inherently likely to deceive,"
id. at
455 U. S. 202,
and the voluminous record in this case fails to reveal a single
instance suggesting that such a failure has in actual experience
proved deceptive. [
Footnote 2/4]
Nor has Ohio at any point identified any other
Page 471 U. S. 661
"substantial interest" that would be served by such a
requirement. Although a State might well be able to demonstrate
that rate publication is necessary to prevent deception or to serve
some other substantial interest, it must do so pursuant to the
carefully structured commercial speech standards in order to ensure
the full evaluation of competing considerations and to guard
against impermissible discrimination among different categories of
commercial speech.
See 471
U.S. 626fn2/7|>n. 7,
infra. [
Footnote 2/5] Ohio has made no such demonstration
here.
Third, the Supreme Court of Ohio agreed with the Board of
Commissioners that Zauderer had acted unethically
"by failing
fully to disclose the terms of the
contingent fee arrangement which was intended to be entered into at
the time of publishing the advertisement."
10 Ohio St.3d at 47, 461
Page 471 U. S. 662
N.E.2d at 886 (emphasis added);
see App. to Juris.
Statement 14a, 19a. The record indicates that Zauderer enters into
a comprehensive contract with personal injury clients, one that
spells out over several pages the various terms and qualifications
of the contingent fee relationship. [
Footnote 2/6] If Ohio
Page 471 U. S. 663
seriously means to require Zauderer "fully to disclose the[se]
terms," this requirement would obviously be so "unduly burdensome"
as to violate the First Amendment.
Ante at
471 U. S. 651.
Such a requirement, compelling the publication of detailed fee
information that would fill far more space than the advertisement
itself, would chill the publication of protected commercial speech,
and would be entirely out of proportion
Page 471 U. S. 664
to the State's legitimate interest in preventing potential
deception.
See In re R.M.J., 455 U.S. at
455 U. S. 203;
Central Hudson Gas & Electric Corp. v. Public Service
Comm'n of New York, 447 U.S. at
447 U. S. 564;
Virginia Pharmacy Board v. Virginia Citizens Consumer Council,
Inc., 425 U.S. at
425 U. S.
771-772, n. 24. Given the Court's explicit endorsement
of Ohio's other disclosure provisions, I can only read the Court's
telling silence respecting this apparent requirement as an implicit
acknowledgment that it could not possibly pass constitutional
muster. [
Footnote 2/7]
B
Ohio's glaring failure "to specify precisely what disclosures
were required,"
ante at
471 U. S. 653,
n. 15, is relevant in another important respect. Even if a State
may impose particular disclosure requirements, an advertiser may
not be punished for failing to include such disclosures
"unless his failure is in violation of valid state statutory or
decisional law requiring the [advertiser] to label or take other
precautions to prevent confusion of customers."
Compco Corp. v. Day-Brite Lighting, Inc., 376 U.
S. 234,
376 U. S.
238-239 (1964). Whether or not Ohio
may
properly impose the disclosure requirements discussed above, it
failed to provide Zauderer with sufficient notice that he was
expected to include such disclosures in his Dalkon Shield
advertisement. The State's punishment of Zauderer therefore
violated basic due process and First Amendment guarantees.
Page 471 U. S. 665
Neither the published rules, state authorities, nor governing
precedents put Zauderer on notice of what he was required to
include in the advertisement. As the Court acknowledges, Ohio's
Disciplinary Rules do not,
"on [their] face, require any disclosures except when an
advertisement mentions contingent fee rates -- which appellant's
advertisement did not do."
Ante at
471 U. S. 653,
n. 15. In light of the ambiguity of the rules, Zauderer contacted
the governing authorities before publishing the advertisement and
unsuccessfully sought to determine whether it would be ethically
objectionable. He met with representatives of the Office of
Disciplinary Counsel, reviewed the advertisement with them, and
asked whether the Office had any objections or recommendations
concerning the form or content of the advertisement. The Office
refused to advise Zauderer whether "he should or should not publish
the advertisement," informing him that it "does not have authority
to issue advisory opinions, nor to approve or disapprove legal
service advertisements." Stipulation of Fact Between Relator and
Respondent �� 22, 27, App. 16. And even after full disciplinary
proceedings, Ohio still has failed, as the Court acknowledges, "to
specify precisely what disclosures were required," and therefore to
specify precisely how Zauderer violated the law and what reasonable
precautions he can take to avoid future disciplinary actions.
Ante at
471 U. S. 653,
n. 15.
A regulation that
"either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first
essential of due process of law."
Connally v. General Construction Co., 269 U.
S. 385,
269 U. S. 391
(1926). The Fourteenth Amendment's Due Process Clause
"insist[s] that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may
act accordingly."
Grayned v. City of Rockford, 408 U.
S. 104,
408 U. S.
108-109 (1972). This requirement "applies with
particular force in review of laws dealing with speech,"
Hynes
Page 471 U. S. 666
v. Mayor of Oradell, 425 U. S. 610,
425 U. S. 620
(1976); "a man may be the less required to act at his peril here,
because the free dissemination of ideas may be the loser,"
Smith v. California, 361 U. S. 147,
361 U. S. 151
(1959). [
Footnote 2/8]
These guarantees apply fully to attorney disciplinary
proceedings.
In re Ruffalo, 390 U.
S. 544,
390 U. S. 550
(1968). Given the traditions of the legal profession and an
attorney's specialized professional training, there is
unquestionably some room for enforcement of standards that might be
impermissibly vague in other contexts; an attorney in many
instances may properly be punished for "conduct which all
responsible attorneys would recognize as improper for a member of
the profession."
Id. at
390 U. S. 555
(WHITE, J., concurring in result). [
Footnote 2/9] But where
"[t]he appraisal of [an attorney's] conduct is one about which
reasonable men differ, not one immediately apparent to any
scrupulous citizen who confronts the question,"
and where the State has not otherwise proscribed the conduct in
reasonably clear terms, the Due Process Clause forbids punishment
of the attorney for that conduct.
Id. at
390 U. S.
555-556. [
Footnote
2/10]
Page 471 U. S. 667
I do not believe that Zauderer's Dalkon Shield advertisement can
be said to be so obviously misleading as to justify punishment in
the absence of a reasonably clear contemporaneous rule requiring
the inclusion of certain disclaimers. The advertisement's statement
that, "[i]f there is no recovery, no legal fees are owed by our
clients" was accurate on its face, and "[t]here is nothing in the
record to indicate that the inclusion of this information was
misleading" in actual practice because of the failure to include a
costs disclaimer.
In re R.M.J., 455 U.S. at
455 U. S.
205-206. [
Footnote
2/11] Moreover, although the statement might well be viewed by
many attorneys as carrying the potential for deception, the Office
of Disciplinary Counsel itself stipulated that
"[t]he Dalkon Shield advertisement published by [Zauderer] does
not contain a false, fraudulent, misleading, deceptive,
self-laudatory or unfair statement or claim."
Stipulation of Fact Between Relator and Respondent � 30, App.
17. Several other States have approved the publication of Dalkon
Shield advertisements containing the identical no-legal-fees
statement, without even a suggestion that the statement might be
deceptive. [
Footnote 2/12]
Page 471 U. S. 668
And the Office of Disciplinary Counsel's refusal to respond to
Zauderer's prepublication inquiries concerning the propriety of the
advertisement wholly undermines one of the basic justifications for
allowing punishment for violations of imprecise commercial
regulations -- that a businessperson can clarify the meaning of an
arguably vague regulation by consulting with government
administrators. [
Footnote 2/13]
Although I agree that a State may, upon a proper showing, require a
costs disclaimer as a prophylactic measure to guard against
potential deception,
see supra at
471 U. S. 660,
and may thereafter discipline attorneys who fail to include such
disclaimers, Ohio had imposed no such requirement at the time
Zauderer published the advertisement, as the Court acknowledges,
ante at
471 U. S. 653,
n. 15. The State instead has punished Zauderer for violating
requirements that did not exist prior to this disciplinary
proceeding.
The Court appears to concede these serious problems, noting
that
"it may well be that for Ohio actually to
disbar an
attorney on the basis of its disclosure requirements as they have
been worked out to this point would raise significant due process
concerns."
Ibid. (emphasis added). The Court
Page 471 U. S. 669
"see[s] no infirmity" in this case? however, because the Supreme
Court of Ohio publicly reprimanded Zauderer, rather than disbarring
him.
Ante at
471 U. S. 654,
n. 15. This distinction is thoroughly unconvincing. When an
attorney's constitutional rights have been violated, we have not
hesitated in the past to reverse disciplinary sanctions that were
even less severe than a public reprimand. [
Footnote 2/14] Moreover, a public reprimand in Ohio
exacts a potentially severe deprivation of liberty and property
interests that are fully protected by the Due Process Clause. The
reprimand brands Zauderer as an unethical attorney who has violated
his solemn oath of office and committed a "willful breach" of the
Code of Professional Responsibility, and it has been published in
statewide professional journals and the official reports of the
Ohio Supreme Court. [
Footnote
2/15] This Court's casual indifference to the gravity of this
injury inflicted on an attorney's good name demeans the entire
legal profession. [
Footnote 2/16]
In addition, under Ohio law,
"[a] person who has been . . . publicly reprimanded for
misconduct, upon being found guilty of subsequent misconduct, shall
be suspended for an indefinite period from the practice of law or
permanently disbarred. . . ."
Govt. Bar Rule V(7). In light of Ohio's vague rules, the
governing authorities' refusal to provide clarification and
Page 471 U. S. 670
guidance to Zauderer, and the Ohio Supreme Court's "failure to
specify precisely what disclosures [are] required,"
ante
at
471 U. S. 653,
n. 15, Zauderer will hereafter publish advertisements mentioning
contingent fees only at his peril. No matter what disclaimers he
includes, Ohio may decide after the fact that further information
should have been included and might, under the force of its rules,
attempt to suspend him indefinitely from his livelihood. Such a
potential trap for an unwary attorney acting in good faith not only
works a significant due process deprivation, but also imposes an
intolerable chill upon the exercise of First Amendment rights.
See supra at
471 U. S.
665-666, and n. 8. [
Footnote 2/17]
II
The Office of Disciplinary Counsel charged that Zauderer's
drunken driving advertisement was deceptive because it proposed a
contingent fee in a criminal case -- an unlawful arrangement under
Ohio law. Amended Complaint �� 3-7, App. 22-23. Zauderer defended
on the ground that the offer of a refund did not constitute a
proposed contingent fee. This was the sole issue concerning the
drunken driving advertisement that the Office complained of, and
the evidence and arguments presented to the Board of Commissioners
were limited to this question. The Board, however, did not
Page 471 U. S. 671
even mention the contingent fee issue in its certified report.
Instead, it found the advertisement "misleading and deceptive" on
the basis of a completely new theory -- that, as a matter of
"general knowledge" as discerned from certain "Municipal Court
reports," drunken driving charges are "in many cases . . . reduced
and a plea of guilty or no contest to a lesser included offense is
entered and received by the court," so that, in such circumstances,
"the legal fee would not be refundable." App. to Juris. Statement
11a. Although Zauderer argued before the Supreme Court of Ohio that
this theory had never been advanced by the Office of Disciplinary
Counsel, that he had never had any opportunity to object to the
propriety of judicial notice or to present opposing evidence, and
that there was no evidence connecting him to the alleged practice,
the court adopted the Board's findings without even acknowledging
his objections. 10 Ohio St.3d at 48, 461 N.E.2d at 886.
Zauderer, of course, might not ultimately be able to disprove
the Board's theory. The question before the Court, however, is not
one of prediction, but one of process.
"A person's right to reasonable notice of a charge against him,
and an opportunity to be heard in his defense a right to his day in
court -- are basic in our system of jurisprudence."
In re Oliver, 333 U. S. 257,
333 U. S. 273
(1948). Under the Due Process Clause, "reasonable notice" must
include disclosure of "the
specific issues [the party]
must meet,"
In re Gault, 387 U. S. 1,
387 U. S. 33-34
(1967) (emphasis added), and appraisal of "the factual material on
which the agency relies for decision, so that he may rebut it,"
Bowman Transportation, Inc. v. Arkansas-Best Freight System,
Inc., 419 U. S. 281,
419 U. S. 288,
n. 4 (1974). These guarantees apply fully to attorney disciplinary
proceedings because, obviously, "lawyers also enjoy first-class
citizenship."
Spevack v. Klein, 385 U.
S. 511,
385 U. S. 516
(1967). Where there is an "absence of fair notice as to the reach
of the grievance procedure and the
precise nature of the
charges," so that the attorney is not given a meaningful
opportunity to present evidence in his defense, the proceedings
Page 471 U. S. 672
violate due process.
In re Ruffalo, 390 U.S. at
390 U. S. 552
(emphasis added). [
Footnote
2/18]
The Court acknowledges these guarantees, but argues that the
Board's change of theories after the close of evidence was "of
little moment," because Zauderer had an opportunity to object to
the Board's certified report before the Supreme Court of Ohio.
Ante at
471 U. S. 654.
This reasoning is untenable. Although the Supreme Court of Ohio
made the ultimate determination concerning discipline, it held no
de novo hearing and afforded Zauderer no opportunity to
present evidence opposing the Board's surprise exercise of judicial
notice. Under Ohio procedure, the court's role was instead limited
to a record review of the Board's certified findings to determine
whether they were "against the weight of the evidence" or made in
violation of legal and procedural guarantees.
Cincinnati Bar
Assn. v. Fennell, 63 Ohio St.2d 113, 119, 406 N.E.2d 1129,
1133 (1980). [
Footnote 2/19] All
that Zauderer could do was to argue that the Board's report was
grounded on a theory that he had never been notified of and that he
never had an opportunity to challenge with evidence of his own, and
to request that proper procedures be followed. [
Footnote 2/20]
Page 471 U. S. 673
The court completely ignored these objections. [
Footnote 2/21] To hold that this sort of procedure
constituted a meaningful "chance to be heard in a trial of the
issues,"
Cole v. Arkansas, 333 U.
S. 196,
333 U. S. 201
(1948), is to make a mockery of the due process of law that is
guaranteed every citizen accused of wrongdoing.
[
Footnote 2/1]
Much of the Court's reasoning appears to rest on the premise
that, in the commercial speech context,
"the First Amendment interests implicated by disclosure
requirements are substantially weaker than those at stake when
speech is actually suppressed."
Ante at
471 U. S. 652,
n. 14. I believe the Court greatly overstates the distinction
between disclosure and suppression in these circumstances. We have
noted in traditional First Amendment cases that an affirmative
publication requirement "operates as a command in the same sense as
a statute or regulation forbidding [someone] to publish specified
matter," and that "a compulsion to publish that which "
reason"
tells [one] should not be published'" therefore raises substantial
First Amendment concerns. Miami Herald Publishing Co. v.
Tornillo, 418 U. S. 241,
418 U. S. 256
(1974). Such compulsion in the advertising context will frequently
be permissible, and I agree that the distinction between
suppression and disclosure supports some differences in analysis.
See 471
U.S. 626fn2/2|>n. 2, infra. Nevertheless,
disclosure requirements must satisfy the basic tenets of commercial
speech doctrine: they must demonstrably and directly advance
substantial state interests, and they may extend no further than
"reasonably necessary" to serve those interests. In re
R.M.J., 455 U. S. 191,
455 U. S. 203
(1982); Central Hudson Gas & Electric Corp. v. Public
Service Comm'n of New York, 447 U. S. 557,
447 U. S. 564-565
(1980).
[
Footnote 2/2]
I agree that Zauderer's "least restrictive means" analysis is
misconceived in the context of commercial speech disclosure
requirements.
See ante at
471 U. S.
651-652, n. 14. Zauderer argues that Ohio's interest in
preventing consumer deception could more effectively be achieved
through direct regulation of contingent fee agreements themselves,
rather than through compelled disclosures in advertising. Brief for
Appellant 41-43. As we repeatedly have emphasized, however, States
have a substantial interest in ensuring that advertising itself is
not misleading,
see Virginia Pharmacy Board v. Virginia
Citizens Consumer Council, Inc., 425 U.S. at
425 U. S.
771-772, and regulation of the underlying substantive
conduct does not remove the potential for deception in the body of
the advertisement. Beyond this, however, a disclosure requirement
is "reasonably related" to truth in advertising only to the extent
that it satisfies the standards set forth above in text.
[
Footnote 2/3]
See, e.g., In re R.M.J., supra, at
455 U. S. 200,
n. 11 (State must justify restriction in light of "experience");
Central Hudson Gas & Electric Corp. v. Public Service
Comm'n of New York, supra, at
447 U. S. 570;
Bates v. State Bar of Arizona, 433 U.
S. 350,
433 U. S. 381
(1977);
Linmark Associates, Inc. v. Willingboro,
431 U. S. 85,
431 U. S. 95
(1977) ("The record here demonstrates that respondents failed to
establish that [their restriction] is needed");
Virginia
Pharmacy Board v. Virginia Citizens Consumer Council, Inc.,
supra, at
425 U. S. 769
(Commonwealth's justifications failed on "close inspection").
See also Metromedia, Inc. v. San Diego, 453 U.
S. 490,
453 U. S. 528
(1981) (BRENNAN, J., concurring in judgment). In evaluating the
necessary form and content of disclosure, courts of course should
be guided by the "enlightenment gained from administrative
experience," because regulatory authorities are "often in a better
position than are courts to determine" such matters.
FTC v
Colgate-Palmolive Co., 380 U. S. 374,
380 U. S. 385
(1965);
cf. In re R.M.J.; supra, at
455 U. S. 200,
n. 11. Particularly in this First Amendment context, however, such
determinations merit deference only to the extent they are
supported by evidence and reasoned explanation.
[
Footnote 2/4]
The Office of Disciplinary Counsel introduced no evidence and
made no arguments concerning this question, and the Board of
Commissioners did not address the issue. The Supreme Court of Ohio
referred in passing to rate disclosure as contributing to "purposes
of clarity." 10 Ohio St.3d 44, 48, 461 N.E.2d 883, 886 (1984). But
there is nothing in this record to suggest that a simple reference
to contingent fees is unclear, and such cursory and "highly
speculative" arguments are an unacceptable substitute for the
reasoned evaluation that is required when regulating commercial
speech.
Central Hudson Gas Electric Corp. v. Public Service
Comm'n of New York, 447 U.S. at
447 U. S. 569;
see also Bates v. State Bar of Arizona, supra, at
433 U. S.
381.
[
Footnote 2/5]
Ohio's failure to make such a demonstration is particularly
troubling in light of Zauderer's persuasive argument that it is
extremely burdensome -- and in fact potentially misleading -- to
attempt to set forth a particular advertised "rate" for personal
injury cases. He argues that his contingent fee rates -- like those
of many attorneys -- vary substantially depending upon the unique
factual and legal needs of a given client and the extent of
representation that is necessary to advance the client's interests.
Zauderer's specific rate information is subject to numerous
qualifications and clarifications, all of which are spelled out in
a lengthy written contract.
See 471
U.S. 626fn2/6|>n. 6,
infra. It was precisely out of
concern that a set "rate" might not accurately encompass the range
of potentially required services that some Members of this Court
objected to any price disclosure by attorneys in the first
instance.
See, e.g., Bates v. State Bar of Arizona, 433
U.S. at
433 U. S. 386
(BURGER, C.J., concurring in part and dissenting in part);
id. at
433 U. S. 392
(POWELL, J., concurring in part and dissenting in part). Our
approval of attorney price advertising has previously extended only
to those services for which fixed rates can "meaningfully be
established."
Id. at
433 U. S.
373.
[
Footnote 2/6]
A representative "Retainer Agreement and Contract of Employment"
provides,
inter alia:
"IV. ATTORNEY FEES"
"I hereby agree to pay P. Q. Z. & A as attorney fees for
such representation, which fees are deemed by me to be
reasonable:"
"
Thirty-Three and One-Third Per Cent of the gross
amount recovered by way of settlement or compromise prior to
trial;"
"
Forty Per Cent of the gross amount recovered by way of
settlement or compromise or judgment if a trial or any part thereof
commences, and an appeal is not necessary;"
"
Forty-Five Per Cent of the gross amount recovered by
way of settlement or compromise or judgment if a trial or any part
thereof commences, and an appeal is necessary."
"The term 'gross amount' shall mean the total amount of money
recovered, prior to any deduction for expenses, and shall include
any interest awarded or recovered."
"IT IS AGREED AND UNDERSTOOD THAT THIS EMPLOYMENT IS UPON A
CONTINGENT FEE BASIS, AND IF NO RECOVERY IS MADE, I WILL NOT BE
INDEBTED TO P. Q. Z. & A FOR ANY SUM WHATSOEVER AS ATTORNEY
FEES (EXCEPT AS PROVIDED IN SECTION VIII HEREOF.)"
"V. COSTS AND OTHER EXPENSES"
"I understand and agree that out-of-pocket costs incurred or
advanced by P. Q. Z. & A in the course of the investigation or
in the handling of any litigation or appeal on my behalf including,
but not limited to, court costs, long distance telephone charges,
court costs, document duplication costs, brief printing costs,
postage, court reporter fees, medical report expenses, witness
fees, costs of obtaining evidence, necessary disbursements and
reasonable travel expenses incurred by P. Q. Z. & A in
advancing my cause, must be borne by me. I, thus, agree to
reimburse P. Q. Z. & A for any such necessary out-of-pocket
expenses it advances on my behalf."
"VI. EMPLOYMENT OF EXPERTS AND INVESTIGATORS"
"P. Q. Z. & A may, in its discretion, employ medical experts
or other necessary experts or investigators in connection with my
case, after consultation with me."
"I understand that all fees and expenses charged by such
experts, including witness fees, are my responsibility, and I agree
to reimburse P. Q. Z. & A for any such fees or expenses which
it advances or incurs on my behalf."
"VI. ASSOCIATE COUNSEL AND LEGAL ASSISTANTS"
"P. Q. Z. & A may, in its discretion, employ associate
counsel (including one or more lawyers outside the office of P. Q.
Z. & A) and law clerks or legal assistants or paralegals to
assist it in representing me. The cost of such assistance shall be
borne by P. Q. Z. & A out of the attorney fees, if any, paid
under Section IV of this contract. (I understand that, if P. Q. Z.
& A employs associate counsel, a division of attorney fees, if
any, paid under Section IV will be made, and I hereby consent to
such employment and division of fees)."
"VII. RETENTION OF ATTORNEY's FEES AND ADVANCED COSTS FROM
SETTLEMENT PROCEEDS"
"P. Q. Z. & A may receive the settlement or judgment amount
and may retain its percentage of attorney's fees from such sum.
Before disbursing the remainder to me, it may deduct therefrom the
amount of costs and expenses advanced or incurred by P. Q. Z. &
A as herein provided."
"VIII. SUBSTITUTION OR DISCHARGE OF ATTORNEY"
"P. Q. Z. & A shall be entitled to the reasonable value of
its professional services (and its costs and other expenses as
provided in Sections V and VI) in the event I discharge P. Q. Z.
& A or obtain a substitution of attorneys before any
settlement, compromise or judgment on any claim for the prosecution
of which P. Q. Z. & A is hereby retained."
"
* * * *"
"X. COMPENSATION IN EVENT OF SETTLEMENT BY CLIENT"
"I agree that, if I settle my claim or cause of action without
the consent of P. Q. Z. & A, I will pay to P. Q. Z. & A:
(a) the fee computed in accordance with the terms of this
agreement, based upon the final recovery received by me in the
settlement, and (b) the costs and expenses as provided in Section V
and VI."
Attachment A to Response of Respondent Zauderer to Relator's
First Set of Interrogatories, No. 454 (Bd. of Commr's on Grievances
and Discipline, S.Ct. Ohio).
[
Footnote 2/7]
Ohio apparently imposes no comparably sweeping disclosure
requirements on advertisements that mention other types of fee
arrangements, such as hourly rates or fixed-fee schedules.
Cf. Ohio DR 2-101(B) (16)-(17). In the absence of any
evidence supporting such extremely disparate treatment -- and there
is none in this record -- one inference might be that contingent
fee advertising is being impermissibly singled out for onerous
treatment.
Cf. Friedman v. Rogers, 440 U. S.
1,
440 U. S. 20-24
(1979) (BLACKMUN, J., concurring in part and dissenting in part);
Ohralik v. Ohio State Bar Assn., 436 U.
S. 447,
436 U. S.
475-476 (1978) (MARSHALL, J., concurring in part and
concurring in judgment).
[
Footnote 2/8]
See also
Buckley v. Valeo, 424 U. S.
1,
424 U. S. 76-82
(1976) (per curiam);
Baggett v. Bullitt, 377 U.
S. 360,
377 U. S. 372
(1964);
Cramp v. Board of Public Instruction, 368 U.
S. 278,
368 U. S. 287
(1961).
[
Footnote 2/9]
Arguably vague regulations may take on "definiteness and
clarity" in the context of the profession's "complex code of
behavior," and an attorney is properly charged with knowledge of
all applicable disciplinary rules and ethical guidelines.
In re
Bithoney, 486 F.2d 319, 324-325 (CA1 1973).
See also
Comment, ABA Code of Professional Responsibility: Void for
Vagueness?, 57 N.C.L.Rev. 671, 676-680 (1979).
[
Footnote 2/10]
In addition to ensuring fair notice, vagueness doctrine also
guards against "
harsh and discriminatory enforcement . . .
against particular groups deemed to merit [official] displeasure.'"
Papachristou v. City of Jacksonville, 405 U.
S. 156, 405 U. S. 170
(1972) (citation omitted); see also Kolender v. Lawson,
461 U. S. 352,
461 U. S. 358
(1983). Some commentators have suggested that vague disciplinary
rules have been used as a tool for singling out unorthodox and
unpopular attorneys for sanction. See, e.g., Comment,
Controlling Lawyers by Bar Associations and Courts, 5 Harv. Civ.
Rights-Civ.Lib.L.Rev. 301, 312-314 (1970); Comment, The Privilege
Against Self-Incrimination in Bar Disciplinary Proceedings: What
Ever Happened to Spevak?, 23 Vill.L.J. 127, 135-136
(1977). See also 471
U.S. 626fn2/11|>n. 11, infra.
[
Footnote 2/11]
No member of the general public has ever complained to the
Office of Disciplinary Counsel about Zauderer's Dalkon Shield
advertisement. Second Stipulation of Fact Between Relator and
Respondent � 38, App. 41. Instead, the Office filed its charges
only as a result of complaints received from other attorneys --
including the local counsel for A. H. Robins Company, manufacturer
of the Dalkon Shield.
Id., �� 39, 40, App. 41.
[
Footnote 2/12]
See, e.g., Brief for Respondent Zauderer In Support Of
His Objections, No. DD 83-19 (S.Ct. Ohio), pp. 129-130 (decision of
the Disciplinary Board of the Supreme Court of Pennsylvania);
id. at 132 (decision of the State Disciplinary Board of
the State Bar of Georgia);
id. at 135 (decision of the
Florida Bar Grievance Committee for the Tenth Judicial Circuit);
Statement of Additional Authorities Upon Which Counsel For
Respondent Zauderer Intends To Rely, No. DD 83-19 (S.Ct.Ohio), pp.
15-16 (decision of the Office of Trial Counsel, State Bar of
California);
In re Discipline of Appert &
Pyle, 315 N.W.2d
204 (Minn.1981).
The Office of Disciplinary Counsel apparently did not initially
view the no-legal-fees statement as deceptive, because it did not
so charge until almost five months after the proceedings had
commenced.
Compare Complaint and Certificate, App. 3,
with Amended Complaint �� 24-27, App. 25. As Zauderer
notes,
"the fact that the charge was not made in the original complaint
suggests that, if appellee found the ad misleading, it was only
after several readings of both the ad and the Code that it reached
this conclusion."
Brief for Appellant 38.
[
Footnote 2/13]
See, e.g., Hoffman Estates v. The Flipside, Hoffman Estates,
Inc., 455 U. S. 489,
455 U. S. 498
(1982);
Joseph E. Seagram & Sons, Inc. v. Hostetter,
384 U. S. 35,
384 U. S. 49
(1966). The Court previously has noted that, because traditional
prior restraint principles do not fully apply to commercial speech,
a State may require "a system of previewing advertising campaigns
to insure that they will not defeat" state restrictions.
Central Hudson Gas & Electric Corp. v. Public Service
Comm'n of New York, 447 U.S. at
447 U. S. 571,
n. 13.
[
Footnote 2/14]
See In re R.M.J., 455 U.S. at
455 U. S. 198
(private reprimand).
See also In re Primus, 436 U.
S. 412,
436 U. S. 421
(1978) (public reprimand);
Bates v. State Bar of Arizona,
433 U.S. at
433 U. S. 358
(censure).
[
Footnote 2/15]
See, e.g., Govt. Bar Rules IV, V(5)(a), V(20)(a); App.
to Juris.Statement 22a-23a. Zauderer also was taxed costs of
$1,043.63.
Ibid.
[
Footnote 2/16]
"Where a person's good name, reputation, honor, or integrity is
at stake because of what the government is doing to him," due
process guarantees must scrupulously be observed.
Wisconsin v.
Constantineau, 400 U. S. 433,
400 U. S. 437
(1971).
See also Board of Regents v. Roth, 408 U.
S. 564,
408 U. S. 573
(1972) (same with respect to "any charge . . . that might seriously
damage [a person's] standing and associations in his community");
Paul v. Davis, 424 U. S. 693,
424 U. S.
722-723 (1976) (BRENNAN, J., dissenting) ("[T]he
enjoyment of one's good name and reputation has been recognized
repeatedly in our cases as being among the most cherished of rights
enjoyed by a free people, and therefore as falling within the
concept of personal 'liberty'").
[
Footnote 2/17]
The First Amendment protects not only the right of attorneys to
disseminate truthful information about the availability of
contingent fee arrangements, but the right of the public to receive
such knowledge as well.
See, e.g., Linmark Associates, Inc. v.
Willingboro, 431 U.S. at
431 U. S. 96-97;
Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council,
Inc., 425 U.S. at
425 U. S. 770.
Many members of the public fail to consult an attorney precisely
out of ignorance concerning available fee arrangements.
See,
e.g., Ohralik v. Ohio State Bar Assn., 436 U.S. at
436 U. S.
473-475 (MARSHALL, J., concurring in part and concurring
in judgment);
Bates v. State Bar of Arizona, 433 U.S. at
433 U. S. 370,
and n. 22. Contingent fee advertising, by providing information
that is relevant to the potential vindication of legal rights,
therefore serves interests far broader than the simple facilitation
of commercial barter.
[
Footnote 2/18]
The Court attempts to distinguish
Ruffalo by explaining
that the absence of fair notice in that case caused the attorney to
give exculpatory testimony that, after it prompted the inclusion of
additional charges, became inculpatory.
Ante at
471 U. S. 655,
n. 18. In the instant case, the Court assures, the absence of fair
notice was not "particularly offensive," because it simply led
Zauderer to refrain from presenting evidence that might have been
exculpatory, rather than to present evidence having an inculpatory
effect.
Ibid. This constricted interpretation of due
process guarantees flies in the face of what I had thought was an
"immutable" principle of our constitutional jurisprudence --
that
"the evidence used to prove the Government's case must be
disclosed to the individual so that he has an opportunity to show
that it is untrue."
Greene v. McElroy, 360 U. S. 474,
360 U. S. 496
(1959)
[
Footnote 2/19]
See generally Govt. Bar Rule V(11)-(20). The attorney
may only file a list of objections to the certified findings and
recommendations along with a supporting brief Rule V(18).
[
Footnote 2/20]
See Brief for Respondent Zauderer In Support Of His
Objections, NO. DD 83-19 (S. Ct. Ohio), pp. 76-78.
[
Footnote 2/21]
The mere opportunity unsuccessfully to bring procedural
violations to the attention of an appellate-type forum obviously
does not constitute the meaningful "chance to be heard" that is
guaranteed by the Due Process Clause.
Cole v. Arkansas,
333 U. S. 196,
333 U. S.
201-202 (1948).
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE
REHNQUIST join, concurring in part, concurring in the judgment in
part, and dissenting in part.
I join Parts I, II, V, and VI of the Court's opinion, and its
judgment except insofar as it reverses the reprimand based on
appellant Zauderer's use of unsolicited legal advice in violation
of DR 2-103(A) and 2-104(A). I agree that appellant was properly
reprimanded for his drunken driving advertisement and for his
omission of contingent fee information from his Dalkon Shield
advertisement. I also concur in the Court's judgment in Part IV. At
least in the context of print media, the task of monitoring
illustrations in attorney advertisements is not so unmanageable as
to justify Ohio's blanket ban. [
Footnote 3/1] I dissent from Part III of the Court's
opinion. In my view, the use of unsolicited legal advice to entice
clients poses enough of a risk of overreaching and undue influence
to warrant Ohio's rule.
Merchants in this country commonly offer free samples of their
wares. Customers who are pleased by the sample are likely to return
to purchase more. This effective marketing technique may be of
little concern when applied to many products, but it is troubling
when the product being dispensed
Page 471 U. S. 674
is professional advice. Almost every State restricts an
attorney's ability to accept employment resulting from unsolicited
legal advice. At least two persuasive reasons can be advanced for
the restrictions. First, there is an enhanced possibility for
confusion and deception in marketing professional services. Unlike
standardized products, professional services are by their nature
complex and diverse.
See Virginia Pharmacy Board v. Virginia
Citizens Consumer Council, Inc., 425 U.
S. 748,
425 U. S. 773,
n. 25 (1976). Faced with this complexity, a layperson may often
lack the knowledge or experience to gauge the quality of the sample
before signing up for a larger purchase. Second, and more
significantly, the attorney's personal interest in obtaining
business may color the advice offered in soliciting a client. As a
result, a potential customer's decision to employ the attorney may
be based on advice that is neither complete nor disinterested.
These risks are of particular concern when an attorney offers
unsolicited advice to a potential client in a personal encounter.
In that context, the legal advice accompanying an attorney's pitch
for business is not merely apt to be complex and colored by the
attorney's personal interest. The advice is also offered outside of
public view, and in a setting in which the prospective client's
judgment may be more easily intimidated or overpowered.
See
Ohralik v. Ohio State Bar Assn., 436 U.
S. 447 (1978). For these reasons, most States expressly
bar lawyers from accepting employment resulting from in person
unsolicited advice. [
Footnote 3/2]
Some States, like the American Bar Association in its Model Rules
of Professional Conduct, extend the prohibition to employment
resulting
Page 471 U. S. 675
from unsolicited advice in telephone calls, letters, or
communications directed to a specific recipient. [
Footnote 3/3] Ohio and 14 other States go a step
further. They do not limit their rules to certain methods of
communication, but instead provide that, with limited exceptions,
a
"lawyer who has given unsolicited legal advice to a layman that
he should obtain counsel or take legal action shall not accept
employment resulting from that advice. [
Footnote 3/4]"
The issue posed and decided in Part III of the Court's opinion
is whether such a rule can be applied to punish the use of legal
advice in a printed advertisement soliciting business. The
majority's conclusion is a narrow one:
"An attorney may not be disciplined for soliciting legal
business through printed advertising containing truthful and
nondeceptive . . . advice regarding the legal rights of potential
clients."
Ante at
471 U. S. 647.
The Court relies on its commercial speech analysis in
Central
Hudson Gas & Electric Corp. v. Public Service Comm'n of New
York, 447 U. S. 557
(1980), and
In re R.M.J., 455 U.
S. 191 (1982). As the Court notes,
Central Hudson
Gas & Electric establishes that a State can prohibit
truthful and nondeceptive commercial speech only if the restriction
directly advances a substantial government interest.
In re
R.M.J. went further, stating that a State cannot 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. 455 U.S. at
455 U. S.
203.
Given these holdings, the Court rejects Ohio's ban on the legal
advice contained in Zauderer's Dalkon Shield advertisement:
Page 471 U. S. 676
"do not assume it is too late to take legal action against the .
. . manufacturer." App. 15. Surveying Ohio law, the majority
concludes that this advice "seems completely unobjectionable,"
ante at
471 U. S. 640.
Since the statement is not misleading, the Court turns to the
asserted state interests in restricting it, and finds them all
wanting. The Court perceives much less risk of overreaching or
undue influence here than in
Ohralik simply because the
solicitation does not occur in person. The State's interest in
discouraging lawyers from stirring up litigation is denigrated
because lawsuits are not evil, and States cannot properly interfere
with access to our system of justice. Finally, the Court finds that
there exist less restrictive means to prevent attorneys from using
misleading legal advice to attract clients: just as the Federal
Trade Commission has been able to identify unfair or deceptive
practices in the marketing of mouthwash and eggs,
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), the States can identify unfair or deceptive
legal advice without banning that advice entirely.
Ante at
471 U. S.
645-646. The majority concludes that "[t]he qualitative
distinction the State has attempted to draw eludes us."
Ante at
471 U. S.
646.
In my view, state regulation of professional advice in
advertisements is qualitatively different from regulation of claims
concerning commercial goods and merchandise, and is entitled to
greater deference than the majority's analysis would permit. In its
prior decisions, the Court was better able to perceive both the
importance of state regulation of professional conduct and the
distinction between professional services and standardized consumer
products.
See, e.g., Goldfarb v. Virginia State Bar,
421 U. S. 773,
421 U. S. 792
(1975). The States understandably require more of attorneys than of
others engaged in commerce. Lawyers are professionals, and as such
they have greater obligations. As Justice Frankfurter once
observed,
"[f]rom a profession charged with [constitutional]
responsibilities there must be
Page 471 U. S. 677
exacted . . . qualities of truth-speaking, of a high sense of
honor, of granite discretion."
Schware v. Board of Bar Examiners of New Mexico,
353 U. S. 232,
353 U. S. 247
(1957). The legal profession has in the past been distinguished and
well served by a code of ethics which imposes certain standards
beyond those prevailing in the marketplace and by a duty to place
professional responsibility above pecuniary gain. While some assert
that we have left the era of professionalism in the practice of
law,
see Florida Bar v. Schreiber, 420 So. 2d 599
(Fla.1982) (opinion of Ehrlich, J.), substantial state interests
underlie many of the provisions of the state codes of ethics, and
justify more stringent standards than apply to the public at
large.
The Court's commercial speech decisions have repeatedly
acknowledged that the differences between professional services and
other advertised products may justify distinctive state regulation.
See Virginia Pharmacy Board, 425 U.S. at
425 U. S. 773,
n. 25;
id. at
425 U. S.
773-775 (opinion of BURGER, C.J.);
Bates v. State
Bar of Arizona, 433 U. S. 350,
433 U. S.
383-384 (1977);
In re R.M.J., supra, at
455 U. S. 204,
n. 15. Most significantly, in
Ohralik, the Court found
that the strong state interest in maintaining standards among
members of licensed professions and in preventing fraud,
overreaching, or undue influence by attorneys justified a
prophylactic rule barring in person solicitation. 436 U.S. at
436 U. S.
460-462. Although the antisolicitation rule in
Ohralik would in some circumstances preclude an attorney
from honestly and fairly informing a potential client of his or her
legal rights, the Court nevertheless deferred to the State's
determination that risks of undue influence or overreaching
justified a blanket ban.
See also Friedman v. Rogers,
440 U. S. 1 (1979)
(upholding Texas prohibition on use of any trade name in the
practice of optometry due to risk of deceptive or misleading use of
trade names). At a minimum, these cases demonstrate that States are
entitled under some circumstances to encompass truthful,
nondeceptive speech within a ban of a type of advertising that
threatens substantial state interests.
Page 471 U. S. 678
In my view, a State could reasonably determine that the use of
unsolicited legal advice "as bait with which to obtain agreement to
represent [a client] for a fee,"
Ohralik, 436 U.S. at
436 U. S. 458,
poses a sufficient threat to substantial state interests to justify
a blanket prohibition. As the Court recognized in
Ohralik,
the State has a significant interest in preventing attorneys from
using their professional expertise to overpower the will and
judgment of laypeople who have not sought their advice. While it is
true that a printed advertisement presents a lesser risk of
overreaching than a personal encounter, the former is only one step
removed from the latter. When legal advice is employed within an
advertisement, the layperson may well conclude there is no means to
judge its validity or applicability short of consulting the lawyer
who placed the advertisement. This is particularly true where, as
in appellant's Dalkon Shield advertisement, the legal advice is
phrased in uncertain terms. A potential client who read the
advertisement would probably be unable to determine whether "it is
too late to take legal action against the . . . manufacturer"
without directly consulting the appellant. And at the time of that
consultation, the same risks of undue influence, fraud, and
overreaching that were noted in
Ohralik are present.
The State also has a substantial interest in requiring that
lawyers consistently exercise independent professional judgment on
behalf of their clients. Given the exigencies of the marketplace, a
rule permitting the use of legal advice in advertisements will
encourage lawyers to present that advice most likely to bring
potential clients into the office, rather than that advice which it
is most in the interest of potential clients to hear. In a recent
case in New York, for example, an attorney wrote unsolicited
letters to victims of a massive disaster advising them that, in his
professional opinion, the liability of the potential defendants is
clear.
Matter of Von Wiegen, 101 App.Div.2d 627, 474
N.Y.S.2d 147,
modified, 63 N.Y.2d 163, 470 N.E.2d 838
(1984),
cert. pending,
Page 471 U. S. 679
No. 84-1120. Of course, under the Court's opinion, claims like
this might be reached by branding the advice misleading or by
promulgating a state rule requiring extensive disclosure of all
relevant liability rules whenever such a claim is advanced. But
even if such a claim were completely accurate -- even if liability
were in fact clear and the attorney actually thought it to be so --
I believe the State could reasonably decide that a professional
should not accept employment resulting from such unsolicited
advice.
See Ohralik, supra, at
436 U. S. 461
(noting that DR 2-104(A) serves "to avoid situations where the
lawyer's exercise of judgment on behalf of the client will be
clouded by his own pecuniary self-interest"). Ohio and other States
afford attorneys ample opportunities to inform members of the
public of their legal rights.
See, e.g., Ohio DR
2-104(A)(4) (permitting attorneys to speak and write publicly on
legal topics as long as they do not emphasize their own experience
or reputation). Given the availability of alternative means to
inform the public of legal rights, Ohio's rule against legal advice
in advertisements is an appropriate means to assure the exercise of
independent professional judgment by attorneys. A State might
rightfully take pride that its citizens have access to its civil
courts,
ante at
471 U. S. 643,
while at the same time opposing the use of self-interested legal
advice to solicit clients.
In the face of these substantial and legitimate state concerns,
I cannot agree with the majority that Ohio DR 2-104(A) is
unnecessary to the achievement of those interests. The Ohio rule
may sweep in some advertisements containing helpful legal advice
within its general prohibition. Nevertheless, I am not prepared to
second-guess Ohio's longstanding and careful balancing of
legitimate state interests merely because appellant here can invent
a less restrictive rule. As the Iowa Supreme Court recently
observed,
"[t]he professional disciplinary system would be in chaos if
violations could be defended on the ground the lawyer involved
could think of a better rule."
Committee On Professional
Page 471 U. S. 680
Ethics and Conduct of Ohio State Bar Assn. v.
Humphrey, 355 N.W.2d 565,
569 (1984),
cert. pending, No. 84-1150. Because I would
defer to the judgment of the States that have chosen to preclude
use of unsolicited legal advice to entice clients, I respectfully
dissent from Part III of the Court's opinion.
[
Footnote 3/1]
Like the majority, I express no view as to whether this is also
the case for broadcast media. As the Court observed in
Bates v.
State Bar of Arizona, 433 U. S. 350,
433 U. S. 384
(1977), "the special problems of advertising on the electronic
broadcast media will warrant special consideration."
[
Footnote 3/2]
See, e.g., Alaska DR 2-104(A); Ariz.DR 2-104(A); Ark.
DR 2-104(A); Colo.DR 2-104(A); Conn.DR 2-104(A); Del.DR 2-104(A);
D.C. DR 2-104(A); Ga.DR 2-104(A); Ind.DR 2-104(A); Kan.DR 2-104(A);
Mo.DR 2-104(A); Mont.DR 2-104(A); Nev.DR 2-104(A); N.M.DR 2-104(A);
N.C.DR 2-104(A); N.D.DR 2-104(A); Okla.DR 2-104(A); Tenn.DR
2-104(A); Utah DR 2-104(A); Wash.DR 2-104(A); W.Va.DR 2-104(A);
Wyo.DR 2-104(A).
[
Footnote 3/3]
See ABA Model Rule of Professional Conduct 7.3 (1983);
Haw.DR 2-103, DR 2-104; Me.Rule 3.9(F); Minn.DR 2-103(A) (in person
and telephonic solicitation); S.D.DR 2-103, DR 2-104(A).
[
Footnote 3/4]
See Idaho DR 2-104; Ky.DR 2-104(A); Md.DR 2-104(A);
Mich.DR 2-104(A); Miss.DR 2-104(A); Neb.DR 2-104(A); N.J.DR
2-104(A); N.Y.DR 2-104(A); Ohio DR 2-104(A); Ore.DR 2-104(A); Pa.DR
2-104(A); R.I.DR 2-104(A); Tex.DR 2-104(A); Vt.DR 2-104(A); Wis.DR
2-104(A).