Christopher R. Lavoie, Have You Been Injured in an Accident? The Problem of Lawyer Advertising and Solicitation, 30 Suffolk U. L. Rev. 413 (1997)

Over the last eighteen years lawyer advertising has become increasingly prevalent. Lawyers advertising the entire gamut of legal services frequently appear on television and radio, as well as in the yellow pages and newspapers. In addition, stories abound of "ambulance chasing" lawyers distributing cards at accident sites and directly soliciting personal injury victims. The problem in lawyer advertising and solicitation arises from how the public, and other attorneys, view this conduct. Critics view attorney advertising tactics as totally abhorrent behavior beyond all bounds of professionalism and perhaps beyond the limits of ethics. Supporters, however, view advertising as an intelligent and aggressive strategy for marketing services in an increasingly competitive profession. Moreover, supporters also perceive lawyer advertising and solicitation as important methods for satisfying the public's need for information about, and access to, legal advice. Finally, the pro-advertising group argues that restrictions on advertising and solicitation violate an attorney's right to free speech.

I. Introduction

Lawyer advertising has a short, yet tortured, history. <=2> n1 Both supporters and opponents of attorney advertising raise compelling and legitimate issues regarding its propriety. <=3> n2 Proponents view attorney advertising as a child of the consumer movement. <=4> n3 Recognizing that certain sectors of the public would not have access to legal information without attorney adver- [*414] tising, supporters argue that advertising serves as an important medium for educating and disseminating legal information to the public. <=5> n4 In addition to providing the public with access to a specific lawyer, proponents claim that advertising and solicitation provide the public with the threshold level of knowledge necessary to determine if a legal claim actually exists. <=6> n5 Proponents further argue that advertising generally helps assure informed and reliable decision-making through open access to information. <=7> n6 Finally, they argue that advertising constitutes commercial speech, which the First Amendment protects. <=8> n7

Conversely, opponents of attorney advertising claim that such activity detracts from the professional image of lawyers. <=9> n8 Critics also cite the public interest as a reason for protecting people from unwanted intrusions by lawyers, individuals who possess training in the art of persuasion. <=10> n9 Finally, opponents claim that sixty-nine years of tradition supports the building of lawyer-client relationships through personal contacts rather than through the impersonal method of advertising. <=11> n10 [*415]

Recently, this debate has intensified due to the emergence of allegedly tacky and unprofessional advertisements and methods of solicitation. <=12> n11 Additionally, during the 1994 Term, the Supreme Court of the United States upheld a restriction on solicitation that, prior to the decision, appeared to be an unconstitutional regulation. <=13> n12 This decision has opened the door for increased regulation of attorney advertising which, if enacted, will have a dramatic effect on the way the public perceives the profession and the way attorneys attract business. <=14> n13

This Note discusses the current trend towards increased restrictions on lawyer advertising and solicitation and how it will effect the legal profession in Rhode Island. The first part of this Note discusses the Supreme Court of the United States' historical rulings relating to attorney advertising. The second part outlines the limited Rhode Island law on attorney advertising. The third section discusses the Supreme Court's most recent ruling on attorney advertising. The fourth section reviews a recent case relating to solicitation by professionals other than attorneys. The fifth section discusses the ABA Model Rules of Professional Conduct. The final sections explore the goals of attorney advertising and the emerging role of the Internet in attorney advertising. Finally, this note urges the adoption of a new market-based rule for regulation of attorney advertising.

II. History

During the nineteenth century the American bar viewed attorney advertising favorably. <=15> n14 In 1908, however, the American Bar Association first [*416] banned attorney advertising. <=16> n15 This ban continued until 1976 when attorneys John Bates and Van O'Steen placed an advertisement for their legal clinic in the Arizona Republic. <=17> n16 This advertisement violated the Arizona state disciplinary rules, providing the impetus for the Supreme Court of the United States' first ruling on attorney advertising. <=18> n17 In Bates v. State Bar, <=19> n18 the Court deemed attorney advertising commercial speech and thus applied a balancing test to determine whether the First Amendment provides protection for attorney advertising. <=20> n19 The Court weighed the [*417] public's need for accurate information concerning the cost and availability of legal services against the State's interest in maintaining professionalism among attorneys. <=21> n20 The Court held that advertising serves individual and societal interests by promoting informed and reliable decision-making and that attorney advertising did not have an adverse effect on the public's perception of lawyers. <=22> n21 Writing for the Court, Justice Blackmun noted that although a total ban on all attorney advertising violated the First Amendment, states could enact limited regulations. <=23> n22

In the opinion, Justice Blackmun described some of the permissible regulations on attorney advertising. <=24> n23 He noted that states may restrict false, deceptive, or misleading advertising. <=25> n24 In addition, he noted that the Bates holding permitted states to restrict advertising in which attorneys make claims about the quality of their legal services, and also permitted regulation of attorney in-person solicitation. <=26> n25 The Court left regulation of these types of attorney self-marketing to the states because of the difficulty in measuring claims regarding the quality of service and the difficulty in regulating in-person contact. <=27> n26

One year after the Bates decision, the Court ruled for the first time on attorney solicitation. <=28> n27 In the first of two companion cases, Ohralik v. Ohio State Bar Ass'n, <=29> n28 the Ohio State Bar Association brought an action [*418] against an attorney for violating the Ohio Code of Professional Responsibility. <=30> n29 The attorney, Albert Ohralik, personally contacted two accident victims and offered to represent them on a contingent fee basis. <=31> n30 The Court held that the State could constitutionally discipline Ohralik for violating the Ohio rule against in-person solicitation. <=32> n31 In support of this holding, the Court noted that states have an interest in protecting the lay public from the potential overreaching that could result from attorney inperson solicitation. <=33> n32 The Court distinguished lawyers who solicit clients for their own pecuniary gain from lawyers motivated by other interests, and found a greater likelihood of overreaching in cases where money served as the prime motivator. <=34> n33

The second case, In re Primus, <=35> n34 which the Court decided on the same day as Ohralik, compounded the confusion over the permissible boundaries of attorney solicitation of clients. <=36> n35 A South Carolina attorney [*419] brought the case after the state disciplinary board reprimanded her for sending a letter to a potential client. <=37> n36 A cooperating lawyer with a local branch of the American Civil Liberties Union (ACLU), Edna Smith Primus mailed a letter to a woman informing her that the ACLU provided free legal assistance. <=38> n37 The Court held that the application of the state disciplinary rule against attorney solicitation to the facts of this case violated Primus' First Amendment rights. <=39> n38 The Court distinguished In re Primus from Ohralik by classifying attorney Primus' conduct as political expression rather than commercial speech. <=40> n39 Additionally, the Court noted that the letter presented a lesser chance of overreaching or invasion of privacy than in-person solicitation. <=41> n40

The Court next reviewed the Missouri rules regulating advertising in In re R.M.J. . <=42> n41 In R.M.J., the Advisory Committee of the Missouri Supreme Court reprimanded an attorney for violating three of the state rules regulating advertising. <=43> n42 The committee imposed a private reprimand because the attorney listed areas of practice other than those that the rules allowed, sent announcement cards to people other than those listed in the rules, and [*420] stated the courts in which the attorney was admitted to practice. <=44> n43 The Court held that all of these restrictions violated the attorney's First Amendment rights. <=45> n44 Moreover, the Court noted that the State did not have a substantial interest in prohibiting any of this information in advertisements. <=46> n45

A drawing in a newspaper served as the subject of the Court's next ruling on attorney advertising. <=47> n46 In Zauderer v. Office of Disciplinary Counsel, <=48> n47 the Disciplinary Counsel of the Supreme Court of Ohio reprimanded a lawyer for an advertisement that contained a picture of the Dalkon Shield intrauterine device. <=49> n48 The Court held that the Ohio rule prohibiting illustrations in attorney advertisements violated the First Amendment. <=50> n49 The Court decided that the drawing did not constitute false or deceptive advertising and that the restriction served no substantial governmental interest. <=51> n50 The Court also noted that illustrations serve as a particularly effective method of communicating ideas in the realm of commercial speech. <=52> n51

Returning to the area of targeted solicitation, the Court held in Shapero v. Kentucky Bar Ass'n <=53> n52 that states could not totally ban all direct-mail solicitation of prospective clients with a particular legal problem. <=54> n53 The Court drew a distinction between in-person and direct-mail solicitation, [*421] noting that direct-mail solicitation has a lesser potential than in-person solicitation for overreaching or difficulty of regulation. <=55> n54 The Court reasoned that the recipient of a letter could simply discard it like any other unwanted written advertisement, while greater difficulty exists in disposing of an actual attorney who confronts someone in person. <=56> n55

The trend towards freedom of advertisement continued with the Court's decision in Peel v. Attorney Registration & Disciplinary Commission. <=57> n56 In Peel, the Illinois Disciplinary Commission attempted to reprimand an attorney for noting "Certified Civil Trial Specialist By the National Board of Trial Advocacy" on his letterhead because the notation violated an Illinois disciplinary rule that prevented lawyers from holding themselves out as specialists. <=58> n57 The Court held that Peel's letterhead did not contain actually or inherently misleading statements. <=59> n58 Justice Stevens noted that the chance that Peel's letterhead might mislead someone did not justify a total ban on the use of specialties in advertising. <=60> n59 A. Rhode Island Law

A paucity of Rhode Island case law exists on the subject of attorney advertising. <=61> n60 The Supreme Court of Rhode Island revised the State's [*422] Code of Professional Responsibility following the Bates decision. <=62> n61 Today the Rhode Island Rules of Professional Conduct mirror the American Bar Association Model Rules with very few differences. <=63> n62 Even with the lack of case law and Rhode Island's almost verbatim adoption of the Model Rules, active debate on the topic of attorney advertising and solicitation still exists in Rhode Island. <=64> n63

Recently the Rhode Island Bar Association Committee on Advertising asked Rhode Island practitioners to respond to an advertising survey. <=65> n64 The results demonstrate that the popular consensus among Rhode Island lawyers favors increased restrictions on attorney advertising. <=66> n65 The Supreme Court's decision in Florida Bar v. Went For It, Inc. <=67> n66 and a desire by the Rhode Island Bar Association to determine the views of its members prompted the survey. <=68> n67 Although no trend towards tighter restrictions on attorney advertising existed prior to the survey, the overwhelming results in favor of more restriction may lead the Committee on Advertising to propose stronger regulation. <=69> n68 [*423]

B. The Trend Towards Tighter Restrictions

The Supreme Court of the United States' most recent decision on attorney advertising and solicitation reverses the trend towards allowing attorneys to advertise and solicit business freely. <=70> n69 In Florida Bar v. Went For It, Inc., <=71> n70 the Court held that a thirty-day ban on direct-mail solicitation of accident victims did not violate the First Amendment. <=72> n71 The Court noted the state's interest in protecting the privacy and tranquility of personal injury victims. <=73> n72 In upholding the thirty-day ban, the Court applied the commercial speech test and held that the state's restriction satisfied the narrowly tailored requirement. <=74> n73 In the seven years since Shapero, a letter had become intrusive enough to warrant restriction. <=75> n74

Florida Bar was a five-to-four decision with Justice Kennedy writing an eloquent dissent joined by Justices Stevens, Souter, and Ginsburg. <=76> n75 Justice Kennedy posited simply that the First Amendment protected the direct-mail solicitation involved in this case. <=77> n76 He stated that this ban might prove detrimental to personal injury victims due to the possibility that they would be unable to obtain representation during the thirty days that the defense worked against them for a settlement. <=78> n77 Justice Kennedy disagreed with the majority because it distinguished Florida Bar from Shapero. <=79> n78 He stated that the purported state interest in protecting the privacy of victims was insufficient to warrant a restriction on commercial speech. <=80> n79 Justice Kennedy persuasively argued, "we do not allow restrictions on speech to be justified on the ground that the expression might [*424] offend the listener." <=81> n80 In conclusion, he noted that this ban amounts to censorship of truthful and nondeceptive information. <=82> n81

C. Restrictions On Whom?

Since Ohralik, in-person solicitation had generated little debate. <=83> n82 It has been well accepted that lawyers may not solicit business in person. <=84> n83 The recent case of Edenfield v. Fane, <=85> n84 however, brings that well-accepted maxim into question. <=86> n85 In Edenfield, a Certified Public Accountant (CPA) filed suit challenging the Florida ban on CPA in-person solicitation. <=87> n86 The Court struck down the ban as a violation of the First Amendment. <=88> n87 Justice Kennedy held that CPA in-person solicitation amounted to commercial speech and that the blanket ban failed the third prong of the Central Hudson test. <=89> n88 While Justice Kennedy accepted that the state had a substantial interest in preventing CPA fraud and overreaching, he found that the ban did not advance these substantial state interests in any direct and material way. <=90> n89

Justice Kennedy specifically distinguished Ohralik as applying only to attorney in-person solicitation. <=91> n90 He stated that the Court did not mean Ohralik to signify that all bans on in-person solicitation, by any type of professional, pass constitutional muster. <=92> n91 The specific circumstances in Ohralik, not the general constitutionality of in-person solicitation, led to its holding. <=93> n92 Attorney Ohralik approached prospective clients at a time of weakness while CPA Fane met with people at their own offices at a time of their own choosing. <=94> n93 Justice Kennedy held that the First Amendment protected Fane's right to solicit in person even though the First Amendment did not protect Ohralik's similar rights. <=95> n94 [*425]

Justice O'Connor, the sole dissenter in Edenfield, found no difference between the ban on attorney in-person solicitation upheld in Ohralik and the ban on CPA in-person solicitation. <=96> n95 She noted that both CPA and attorney in-person solicitation inherently carry the danger of overreaching. <=97> n96 The legislature, O'Connor posits, could have enacted the ban for the same reasons envisioned in Ohralik; that is, to prevent a CPA from using his professional expertise to mislead or coerce a naive potential client. <=98> n97

D. The ABA Rules and Differences in State Regulation

Interestingly, attorneys file most of the complaints for violations of attorney advertising rules. <=99> n98 The rules differ substantially from state to state although the ABA Model Rules serve as the starting point for most states' regulations. <=100> n99 The comment to Rule 7.2 of the Model Rules tersely describes the goals of attorney advertising. <=101> n100 The comment's tone, how- [*426] ever, is incredibly liberal compared to the language of some states' rules. <=102> n101 The first line of the comment expressly states that lawyers should be allowed to advertise. <=103> n102 Additionally, the comment specifically mentions the power of television advertising and that a ban would keep legal information from many sectors of the public. <=104> n103 Finally, the rule itself requires the advertising attorney to keep a copy of the advertisement and a record of each time the attorney disseminates it to the public. <=105> n104

E. The Limits of the First Amendment

Settled case law clearly establishes that the First Amendment does not protect false or misleading communications about lawyers or their services. <=106> n105 Courts have distinguished some features and methods of attorney advertising that are inherently misleading and others that are not. <=107> n106 Inherently misleading statements include those stating that the client will not be charged unless the attorney wins the suit, unless accompanied by a [*427] disclosure that the client will be liable for fees, while statements found not inherently misleading include the prices charged for routine legal services. <=108> n107

The rules also specifically define three categories that make attorney advertising information misleading. <=109> n108 First, the rules designate attorney advertising as misleading when the advertising contains a material misrepresentation of fact; <=110> n109 second, when it is likely to create an unjustified expectation about results the lawyer can achieve; <=111> n110 and finally, when it compares the lawyer's services with other lawyer's services without factual substantiation. <=112> n111 Although false statements are usually easily identifiable, a misleading statement may be much harder to recognize. <=113> n112

F. The Limits of Solicitation

Courts have established that the ban on attorney in-person solicitation, when the attorney's pecuniary gain motivates the solicitation, does not violate the First Amendment. <=114> n113 A problem arises, however, in determining where advertising ends and solicitation begins. <=115> n114 The Model Rules first classified targeted mailing as solicitation, but in light of the Shapero decision the rules reclassified targeted mailing as advertising. <=116> n115 The [*428] comment to Model Rule 7.3 articulately describes the difference by defining targeted mail as "particularized mailings discussing specific types of legal services to people known to need those services." <=117> n116 The comment also claims that advertising provides an alternate method for conveying the same information without the potential for abuse inherent in solicitation. <=118> n117 Strangely, Model Rule 7.3 equates live telephone contact with inperson solicitation rather than with advertising and targeted mail. <=119> n118 Finally, the prohibition on solicitation hinges on the attorney's motivation rather than on any objective factors of the solicitous message. <=120> n119

G. The Goals of Attorney Advertising

In 1988 the ABA adopted ten aspirational goals for attorney advertising. <=121> n120 The goals address arguments on both sides of the attorney advertising debate. <=122> n121 In addition, the ABA Commission on advertising has set [*429] out a list of eighteen considerations and forty strategies in an attempt to solve the wide variety of problems relating to attorney advertising. <=123> n122 The ABA based these considerations and strategies on a number of competing premises and attempted to balance all the interests involved. <=124> n123 The drafters realized that the evolving nature of the practice of law combined with the changing mores of the country preclude any easy answers. <=125> n124

H. Methods of Regulation

The ABA has articulated three categories of regulation into which each state's attorney advertising rules fall. <=126> n125 The ABA defines the first as an abolitionist model designed to make television advertising infeasible because of strict regulation. <=127> n126 States designed the second category to in [*430] form the public while precluding emotional and dramatic advertising. <=128> n127 The final category, on which the ABA based its Model Rules, prohibits false or misleading advertising and makes consumer protection its main focus. <=129> n128 Although individual states have utilized different methods of regulating attorney advertising, the goals of all states remain identical: To provide information to the public without overreaching while, at the same time upholding the dignity of the profession. <=130> n129

I. Advertising in the Twenty-First Century

The ubiquitous nature of computers and the Internet provide novel issues for those interested in attorney advertising. <=131> n130 The Texas State Bar has become the first state bar to specifically regulate law firm homepages on the Internet as advertising. <=132> n131 The Texas rules require submission of [*431] all proposed advertisements to the bar's advertising review committee. <=133> n132 Although every different print and television advertisement must be resubmitted for approval, only material changes to the homepages require resubmission. <=134> n133 Even in states where there are no specific rules on Internet advertising, some firms have recognized that their homepages may fall within the scope of regulated communication. <=135> n134 In Texas, the bar based the decision that Internet homepages can be regulated on the finding that the homepages sell a service just like television or print advertisements. <=136> n135

III. Analysis

The Supreme Court of the United States has addressed both the goals of and problems with attorney advertising and solicitation. <=137> n136 The Court has failed, however, to set coherent boundaries on the limits of permissible attorney marketing methods. <=138> n137 This patchwork of decisions and the broad spectrum of state regulation leaves attorneys in the dark as to what individual Bar Associations allow as advertising. <=139> n138 Finally, all these regulations collide with attorney's First Amendment right to commercial speech. <=140> n139 Therefore, a new rule is necessary that allows unfettered use [*432] of advertising so long as it is truthful. <=141> n140

A. The Misplaced Efforts of the Florida Bar

All parties to the Florida Bar debate understand and agree with the interests purportedly advanced by the thirty-day restriction on direct-mail solicitation. <=142> n141 At this point, however, the parties' views diverge. <=143> n142 As the dissenters in Florida Bar realized, the thirty-day ban simply fails to advance the interests the Bar put forth. <=144> n143 In addition to failing to advance those interests at all, much less in a direct and material way, the thirty-day ban blatantly abridges Florida attorneys' fundamental First Amendment right to advertise. <=145> n144 Although the public and the legal profession should admire the Florida Bar's purported paternal interest in protecting the public from conniving lawyers, these groups should not overlook the real effect of the thirty-day ban. <=146> n145 Contrary to the assertions of the Florida Bar, the ban actually harms the public by cutting off one possible avenue of access to information. <=147> n146 Moreover, the other reason given for the ban also fails to pass muster when examined closely. <=148> n147 Upholding the professionalism of the Bar and preserving public confidence in the administration of justice would, in spite of the Bar's allegations, be furthered rather than hindered by the free dissemination of legal information. <=149> n148 These solicitation letters sent within thirty days after the accident [*433] inform people of their legal rights and remedies and plainly explain how the legal system works at a time when the injured party may especially need such information. <=150> n149 Thus, the solicitation letter could increase public confidence in the administration of justice by informing the public about how the legal system administers justice. <=151> n150 The fatal flaw of the Florida Bar holding results from the failure to recognize the overbreadth of the restriction. <=152> n151

B. A Market-Based Solution to Attorney Advertising

Research has shown that the public accepts lawyer advertising and many lawyers have used advertising successfully. <=153> n152 The public, however, prefers dignified and tastefully presented lawyer advertisements over tacky, greedy, or unrealistic ones. <=154> n153 A free market approach to attorney advertising could serve to naturally and effectively weed out advertising that the public finds offensive. <=155> n154 Many other service providers advertise without any regulation other than truthfulness. <=156> n155 If the bar allowed lawyers to advertise freely the public would have greatly increased access to legal information, while lawyers who offended the public through their advertising would suffer through loss of business. <=157> n156 Groups are always [*434] judged by their best or their worst members; if some lawyers want to vie for the position of worst lawyer, through tacky or tasteless advertisements, the bar should allow them that freedom. <=158> n157 The market will naturally force unsuccessful advertising out of circulation. <=159> n158 The bar's efforts should turn away from worrying about advertising as a detriment to the professional image of lawyers and shift towards instilling a sense of that professionalism into the lawyers themselves. <=160> n159 The bar requires a new approach to the regulation of attorney marketing because the professional image of lawyers has been, and remains, very low. <=161> n160

C. Solicitation and Pecuniary Gain

Scholars have questioned the propriety of basing the ban on in-person solicitation on the lawyer's motivation. <=162> n161 The purported reason for the ban, preventing overreaching by attorneys, could occur regardless of what motivates the attorney. <=163> n162 The totally subjective nature of motivation also presents a problem. <=164> n163 An attorney could have many different reasons for soliciting a client, all of which could have equally entered into the equation when the attorney decided to pursue representation of a specific client. <=165> n164 Rule 7.3 prohibits solicitation when the pecuniary gain is a "significant motive" in the decision to solicit. <=166> n165 In addition to the difficulty in defining "significant motive," the term "pecuniary gain" also [*435] offers no easy definition. <=167> n166 This ambiguity demonstrates how the present rules provide no assistance to lawyers wishing to solicit business and, in fact, unfairly penalizes attorneys who honestly admit their motivation. <=168> n167 A better rule would only prohibit solicitation when it actually involved overreaching or undue influence on the part of the attorney. <=169> n168 A rule based on actual overreaching would serve the same interests as the present rule while being easier to regulate and providing a benefit to small firms that could use solicitation to generate business. <=170> n169

D. Goals, Problems, and Rules

How well do these three aspects of the debate surrounding attorney advertising fit together? First, the goals of attorney advertising and solicitation are to educate and disseminate legal information to the public, to assist individuals in determining if a legal claim actually exists, to promote informed and reliable decision-making, and to help attorneys obtain business. <=171> n170 The major perceived problems with attorney advertising and solicitation are, first, that they detract from the professional image of lawyers; second, that tradition dictates that attorneys do not advertise; and finally, the fear that the public will be misled or unduly influenced by attorney advertising. <=172> n171 Finally, the Model Rules, in an attempt to address these concerns, have dictated that lawyers shall not make false or misleading communications and that lawyers generally may advertise and may not solicit business. <=173> n172 [*436]

1. Goals

As a means of advancing the goals of attorney advertising, any restriction, except restrictions on false communications, detracts from the stated objectives. <=174> n173 The more truthful information that enters the marketplace, the more informed the public. <=175> n174 Even restrictions on misleading communications block possible avenues of access to information because what one person finds misleading may appear perfectly clear to another. <=176> n175

2. Problems

Both the rules and the bar could better address the perceived detraction from the professional image of attorneys caused by advertising and solicitation by allowing the market to regulate itself rather than through the piecemeal regulations now in place. <=177> n176 Free advertising and solicitation by attorneys would solve the image problem by driving offensive attorneys out of business. <=178> n177 The bar could advance the goal of protecting the public, which translates into the fear of the public being unduly influenced by attorney advertising and solicitation, by punishing attorneys who actually harm the public rather than through preemptive regulation of the attorneys' speech. <=179> n178 Lastly, tradition simply falls in light of all the other interests surrounding attorney advertising and solicitation. <=180> n179

IV. Conclusion

The following proposal would replace Model Rules 7.1, 7.2, and 7.3: "A lawyer may advertise or solicit business in any truthful method that does not involve overreaching or undue influence." This new rule would address all the concerns presently surrounding attorney advertising while better serving the public and less established attorneys. This new rule would render the commercial speech debate surrounding attorney advertis- [*437] ing moot because the rule would allow any true statement. The practice of law is a business as well as a profession, and courts and the bar should allow it to behave as one.

FOOTNOTES:

n1 See Bates v. State Bar, 433 U.S. 350, 383 (1977) (holding blanket ban on attorney advertising unconstitutional). Until the Bates decision in 1977, etiquette and tradition, as well as the regulations of individual states, prevented lawyers from advertising. Id. at 371. In the 18 years since Bates, the Supreme Court of the United States has addressed the narrow question of attorney advertising and solicitation an additional seven times. See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2375 (1995) (discussing case history of lawyer advertising). See generally Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91 (1990); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); In re R.M.J., 455 U.S. 191 (1982); In re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978).

n2 See Florida Bar, 115 S. Ct. at 2380 (holding restriction on direct-mail solicitation helps prevent loss of respect for legal profession); Louise L. Hill, Lawyer Advertising 150 (1993) (stating public needs information regarding available legal services); Tape of Interview with attorney James Sokolove held by Professors Gerald Clark and Bernard Ortwein, Suffolk University Law School (1984) (on file with interviewers) [hereinafter Tape] (stating advertising fills unmet legal needs).

n3 See Tape, supra note 2 (claiming attorney advertising resulted from 1970's consumer movement).

n4 See Alan S. Flink, Legal Advertising Facts, Myths and Recommendations--Report of the ABA Commission on Advertising, R.I. B.J., June 1995, at 13, 18 (stating advertising brings legal services to uninformed); Louise L. Hill, Solicitation By Lawyers: Piercing the First Amendment Veil, 42 Me. L. Rev. 369, 421 (1990) (stating unrestricted in-person solicitation would allow lawyers to convey information to "underserved public"); Geoffrey C. Hazard, Jr. et al., Why Lawyers Should Be Allowed To Advertise: A Market Analysis of Legal Services, 58 N.Y.U. L. Rev. 1084, 1084 (1983) (stating advertising results in improved product information about legal services); Lauren Dobrowalski, Comment, Maintaining the Dignity of the Profession: An International Perspective on Legal Advertising and Solicitation, 12 Dick. J. Int'l L. 367, 368 (1994) (claiming advertising aids public in awareness of legal issues); Jeffrey K. Hollis, Comment, Peel v. Attorney Registration and Disciplinary Commission and the Present Scope of Allowable Attorney Advertising, 14 Am. J. Trial Advoc. 335, 361 (1990) (stating advertising informs public of available legal services).

n5 See Barbara A. Curran, The Legal Needs of the Public 261 (1977) (stating lawyers consulted for less than one-third of all legal problems); Flink, supra note 4, at 18 (concluding advertising provides legal services to those who otherwise might go without).

n6 See Mylene Brooks, Lawyer Advertising: Is There Really a Problem?, 15 Loy. L.A. Ent. L.J. 1, 32 (1994) (claiming advertising useful in fostering choice); James Podgers, Image Problem, A.B.A. J., Feb. 1994, at 66, 67 (stating advertising educates public about legal services); Tape, supra note 2 (describing how advertising serves to educate public).

n7 See Bates v. State Bar, 433 U.S. 350, 384 (1977) (holding blanket prohibition of attorney advertising violates First Amendment). Attorney advertising has also become big business, with the top advertiser, Injury Help Line, spending $3.6 million between January and June, 1995. It All Ads Up, Nat'l L.J., Sept. 18, 1995, at A5. Jacoby & Meyers finished a distant second, spending $1.5 million over the same period. Id.; see R. Kelly Sheridan, Lawyer Advertising-Where Do We Go From Here?, R.I. B.J., Jan. 1996, at 3, 3 (noting over $125 million spent on attorney television advertising in 1993).

n8 See Jonathan K. Van Patten, Lawyer Advertising, Professional Ethics, and the Constitution, 40 S.D. L. Rev. 212, 212 (1995) (claiming advertising causes lawyer image problem); Dobrowalski, supra note 4, at 368 (stating advertising causes loss of public respect for lawyers).

n9 See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 465 (1978) (noting lawyers trained in art of persuasion); Flink, supra note 4, at 15 (claiming lawyers artful at persuasion); Robert B. Reich, Preventing Deception in Commercial Speech, 54 N.Y.U. L. Rev. 775, 783 (1979) (stating speech deceptive to some while not deceptive to others).

n10 See Hill, supra note 4, at 369 (discussing lawyer advertising as historically inappropriate); Van Patten, supra note 8, at 214 (listing different personal methods used to get clients). But see Flink, supra note 4, at 17 (describing traditionally acceptable solicitation); Katherine A. LaRoe, Comment, Much Ado About Barratry: State Regulation of Attorneys' Targeted Direct-Mail Solicitation, 25 St. Mary's L.J. 1513, 1544 (1994) (calling attraction of business solely by personal contacts unrealistic and hypocritical).

n11 See This Legal Appeal in Dispute, Boston Globe, Oct. 10, 1995, at 39 (showing nontraditional lawyer advertisement). This advertisement from Great Neck, New York, depicts mortgage lawyer Rosalie Osias, lying on her desk in a miniskirt, with the text, "Does this law firm have a reputation? You bet it does!!!" Id. Osias claims the advertisement attempts to attract a male market for her mortgage services. Id. She also claims that she needed to try something sexual to break into the oldboy network of mortgage banking. Id.

n12 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2381 (1995) (holding 30-day ban on direct-mail solicitation of accident victims within constitutional limits); see also infra notes 70-81 and accompanying text (providing detailed analysis of Florida Bar).

n13 See Hill, supra note 4, at 421 (concluding continued restrictions on solicitation will have negative effect on legal profession).

n14 See Lori B. Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation 1 (1980) (describing Abraham Lincoln's advertisement of legal services from 1838); see also Brooks, supra note 6, at 6-10 (discussing history of attorneys in United States). In the nineteenth century, the organized bar had a very liberal admission policy. Brooks, supra note 6, at 6. The liberal bar admission policy led to increased competition for client business, which created the perceived need for attorney advertising and solicitation. Id. at 6-7.

n15 See American Bar Association, Opinions of the Committee on Professional Ethics 75 (1967) (providing text of original Canon 27 of American Bar Association Cannons of Professional Ethics). Canon 27 originally read:

The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. The publication or circulation of ordinary simple business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not per se improper. But solicitation of business by circulars or advertisements, or by personal communications, or interviews, not warranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters of any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning causes in which the lawyer has been or is engaged, or concerning the manner of their conduct, the magnitude of the interests involved, the importance of the lawyer's positions, and all other like self-laudation, defy the traditions and lower the tone of our high calling, and are intolerable.

Id.; see also Andrews, supra note 14, at 1 (mentioning original American Bar Association ban); Terry Calvani et al., Attorney Advertising and Competition at the Bar, 41 Vand. L. Rev. 761, 763 n.7 (1988) (referring to Canon 27 of original Canons of Professional Ethics).

n16 See Andrews, supra note 14, at 89 (displaying picture of Bates' advertisement). The advertisement listed five legal services and the fee that Bates and O'Steen charged for each. Id. At the top of the advertisement in large, bold lettering it read, "Do you need a lawyer?" Id. Accompanied by a picture of the scales of justice, the text below read, "Legal services at very reasonable fees." Id. Finally, the advertisement gave the address and telephone number of Bates and O'Steen's legal clinic. Id. O'Steen still remains at the forefront of attorney advertising by running his own attorney marketing firm. See Are You Losing Clients?, Trial, Jan. 1996, at 34, 34 (advertising assistance by O'Steen in creating dignified and effective attorney television marketing).

n17 See Bates v. State Bar, 433 U.S. 350, 383 (1977) (holding blanket ban on attorney advertising unconstitutional); see also Andrews, supra note 14, at 3-4 (describing Bates holding); Hill, supra note 2, at 58-59 (stating Bates holding). Professor Hill articulately describes the commercial speech balancing test that the Court used in Bates. Hill, supra note 2, at 58-60. See generally Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 870-72 (4th ed. 1995) (providing Arizona's reasons for forbidding lawyer advertising).

n18 433 U.S. 350 (1977).

n19 See id. at 364 (describing factors balanced); see also Central Hudson Gas & Elec. Corp. v Public Serv. Comm'n, 447 U.S. 557, 564 (1980) (articulating commercial speech balancing test). Decided three years after Bates, Central Hudson, clearly set forth the test for determining the constitutionality of commercial speech stating:

If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial governmental interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.

Central Hudson, 447 U.S. at 564. In 1989 the Court modified the last prong of this test from a least restrictive means standard to a "reasonable fit standard." Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). Refusing to impose a burden on the State to demonstrate the least restrictive means to meet the government's objective, the Court announced that the State must employ only narrowly-tailored means. Id. The Court will apply this hybrid test to restrictions on commercial speech in future attorney advertising cases. Id.

n20 See Bates, 433 U.S. at 364-65 (weighing various policy factors); see also Hill, supra note 2, at 58-60 (analyzing Bates reasoning and balancing test).

n21 Bates, 433 U.S. at 368-69.

n22 Id. at 383. The Court also mentioned that both advertising as to the quality of services and inperson solicitation may be so likely to mislead in some cases as to warrant restriction. Id.

n23 Bates v. State Bar, 433 U.S. 350, 383-84 (1977).

n24 Id. at 383.

n25 Id. at 383-84.

n26 Id. Justice Blackmun concluded, "in sum, we recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly." Id. at 384.

n27 See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 467 (1978) (holding rule preventing inperson solicitation of accident victims did not violate constitution); In re Primus, 436 U.S. 412, 439 (1978) (holding rule preventing direct-mail solicitation violates First Amendment).

n28 436 U.S. 447 (1978).

n29 See id at 453 n.9 (citing pertinent parts of Ohio Code of Professional Responsibility). At the time, the Ohio Code of Professional Responsibility read in pertinent part: "A lawyer shall not recommend 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." Id.

n30 See id. at 449-51 (describing Ohralik's conduct). Ohralik visited one woman in her hospital room, where she was in traction. Id. at 450. He visited the other woman at home after receiving her address from the family of the first woman, and he kept a tape recorder concealed in his coat for the entire meeting. Id. at 451. Ohralik later used the tape recording to attempt to bind the woman after her mother tried to repudiate their oral agreement. Id. at 451-52.

n31 See id. at 467 (holding court could constitutionally apply disciplinary rules to attorney Ohralik); see also Andrews, supra note 14, at 7 (describing Ohralik's conduct); Hill, supra note 2, at 60-63 (comparing and contrasting holdings in Primus and Ohralik).

n32 See Ohralik, 436 U.S. at 464-65 (noting possibility of attorney's overreaching during in-person solicitation); see also supra note 9 (noting lawyers as trained in art of persuasion). The Court feared that the people from whom lawyers would solicit business would be unable to make informed, unbiased, and objective decisions because of the stress that their putative legal problem caused coupled with the lawyer's persuasive presence. Ohralik, 436 U.S. at 465. The Court noted that in-person solicitation posed the danger of distressed lay people's "uninformed acquiescence." Id.

n33 See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 461 n.19 (1978) (stating lawyer's pecuniary gain can lead to problems of conflict of interest). Compare Ohralik, 436 U.S. at 449 (noting pecuniary gain requirement for disciplinary action), with In re Primus, 436 U.S. 412, 414-15 (1978) (noting attorney Primus received no compensation for her ACLU work). The Ohralik Court realized that the problem of a lawyer's pecuniary gain could occur in any lawyer-client relationship but believed that in-person solicitation posed a particularly strong potential for subordination of the client's interests. Ohralik, 436 U.S. at 461 n.19. The Court mentioned the difficulty in objectively determining the legal merit of a claim when the lawyer considers his or her own remuneration. Id.

n34 436 U.S. 412 (1978).

n35 See id. at 434 (holding Ohralik reasoning cannot properly apply to Primus facts). In his dissent, Justice Rehnquist opined that the Court should base its First Amendment inquiry on the conduct that the state seeks to regulate rather than on the motive behind the conduct. Id. at 443 (Rehnquist, J., dissenting). Justice Rehnquist suggested that future lawyers could avoid disciplinary action by claiming that any solicitation was actually "political association." Id. at 442 (Rehnquist J., dissenting). Rehnquist states that Ohralik could have avoided sanction by claiming "political association" with accident victims so as to keep insurance companies from taking advantage of them. Id. Justice Rehnquist concurred in the Ohralik holding by referring to his dissent in Primus. Ohralik, 436 U.S. at 477 (Rehnquist, J., concurring).

n36 See Primus, 436 U.S. at 416 n.6 (providing text of letter). A local businessman invited attorney Edna Smith Primus to speak to a group of women sterilized as a requirement for continued receipt of Medicaid benefits. Id. at 415. After the speech, the businessman, Gary Allen, informed Primus that one of the women present desired to sue the doctor who performed the sterilization. Id. at 416. Primus then wrote to the woman informing her of the ACLU's offer of free representation. Id. At the time, Primus was in private practice and worked as a "legal consultant" for the South Carolina Council on Human Relations, in addition to her work for the ACLU. Id. at 414-15. The Council on Human Relations paid Primus for her work, but she received no reimbursement from the ACLU. Id. The Council on Human Relations originally organized Primus' speech after Allen requested it to do so. Id. at 415.

n37 Id. at 416 n.6. Primus wrote the letter on her private practice stationary. Id. The name of the firm was the "Carolina Community Law Firm." Id. The lower court defined the firm as "an expense sharing arrangement with each attorney keeping his own fees." See id. at 414 n.1 (quoting lower court).

n38 Id. at 439. The South Carolina disciplinary rules that Primus allegedly violated stated in pertinent part: "A lawyer shall not knowingly assist a person or organization that recommends, furnishes, or pays for legal services to promote the use of his services or those of his partners or associates" and "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." Id. at 418 n.10, 420 n.11. The Court articulated the protected First Amendment right as expression "intended to advance 'beliefs and ideas.'" Id. at 438 n.32.

n39 See In re Primus, 436 U.S. 412, 422 (1978) (stating Primus sent letter to express personal political beliefs); see also supra notes 30-33 and accompanying test (discussing Ohralik and Primus holdings).

n40 See Primus, 436 U.S. at 435 (stating transmittal of letter not invasion of privacy or opportunity for overreaching or coercion). Justice Powell stated that Primus' letter "cannot be characterized as a pressure tactic." Id. at 435 n.28. The Court reached this conclusion, in part, because one month had passed since Primus' speech. Id. Under these circumstances Primus did not surpass the limits of constitutional protection. Id. But see Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2381 (1995) (upholding 30-day ban on direct-mail solicitation).

n41 455 U.S. 191 (1982).

n42 Id. at 197-98.

n43 Id. The advertisement in question stated that the appellant attorney was "Admitted to Practice Before THE UNITED STATES SUPREME COURT." Id. at 197. The advertisement also did not contain the terminology for areas of practice that were listed in the state rule. Id. The attorney had listed "personal injury" instead of the required "tort law," and "real estate" instead of "property law." Id. Further, the attorney listed several areas of law not covered by the rules, such as, "contract" and "zoning & land use." Id.

n44 Id. at 206.

n45 See id. at 205 (recognizing restrictions against nonmisleading speech invalid). The Court went on to note that States "retain the authority to regulate advertising that is inherently misleading or that has proved to be misleading in practice." Id. at 207.

n46 See American Bar Association, Lawyer Advertising at the Crossroads 19 (1995) (displaying picture of Zauderer's advertisement).

n47 471 U.S. 626 (1985).

n48 Id. at 634-35. At the time, Ohio Disciplinary Rule 2-101(B) prohibited the use of illustrations in attorney advertisements. Id. at 632. The advertisement also violated advertising Disciplinary Rules prohibiting an attorney from recommending himself and from mentioning contingent fee arrangements without disclosing if the client would be liable for costs. See id. at 633 (discussing Ohio's disciplinary rules).

n49 Id. at 655-56.

n50 Id. at 641.

n51 Id. at 647. The Court noted that the Central Hudson test entitled commercial illustrations to the same protection as verbal commercial speech. Id. Recognizing the power of the visual image, the Court discussed a picture's force in attracting attention and directly imparting information. Id.

n52 486 U.S. 466 (1988).

n53 Id. at 476. The Court explicitly classified direct-mail solicitation as protected commercial speech. Id. But see Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2381 (1995) (affirming 30-day ban on direct-mail solicitation).

n54 Shapero, 486 U.S. at 475-77. The Court noted that requiring attorneys to file solicitation letters with a state agency could accomplish the regulatory goals. Id. at 476. Justice Brennan classified such an agency as "far less restrictive" and "more precise" than a blanket ban. Id. He also saw a registration agency as the "obvious" choice of other possible regulatory means. Id.

n55 Id. at 475-76. The Court realized a letter can easily "be put in a drawer to be considered later, ignored, or discarded." Id.

n56 496 U.S. 91 (1990).

n57 Id. at 91, 96-97. The rule, DR 2-105, entitled "Limitation of Practice," simply states "a lawyer shall not hold himself out publicly as a specialist." See id. at 97 n.8 (providing text of rule). The only exceptions are for patent, trademark, and admiralty lawyers. Id.

n58 Id. at 110. The National Board of Trial Advocacy (NBTA) actually issued Peel a "Certificate in Civil Trial Advocacy" in 1981. Id. at 96. NBTA also listed Peel in its directory of "Certified Specialists and Board Members." Id. The Court recognized NBTA certification as a difficult procedure. Id. at 95. The Supreme Court of Minnesota noted that "NBTA applies a rigorous and exacting set of standards and examinations on a national scale before certifying a lawyer as a trial specialist." Johnson v. Director of Prof'l Responsibility (In re Johnson), 341 N.W.2d 282, 283 (Minn. 1983). NBTA received a stronger endorsement from the Supreme Court of Alabama, which stated "a certification of specialty by NBTA would indicate a level of expertise with regard to trial advocacy in excess of the level of expertise required for admission to the bar generally." Howell v. Alabama State Bar (Ex parte Howell), 487 So. 2d 848, 851 (Ala. 1986).

n59 Peel, 496 U.S. at 106-07. The Court reasoned that certification as a specialist does not pose more chance of misleading than advertising admission to practice before the United States Supreme Court, as in R.M.J.. Id.

n60 See Lovett & Linder, Ltd. v. Carter, 523 F. Supp. 903, 909-10 (D.R.I. 1981) (holding restriction barring lawyer advertising in telephone directory except under heading "lawyers" violates First Amendment); Carter v. Lovett & Linder, Ltd., 425 A.2d 1244, 1245 (R.I. 1981) (limiting attorney advertising in telephone directory to yellow-colored pages under heading "lawyers"). These cases arose out of a law firm's advertisement on the inside back cover of a telephone directory. Carter, 425 A.2d at 1245. In the wake of Bates, the Supreme Court of Rhode Island issued a Provisional Order allowing advertisements in "newspapers, periodicals and the yellow pages of telephone directories." In re Provisional Order No. 11, 382 A.2d 194, 195 (R.I. 1978). The Rhode Island Disciplinary Counsel brought an action against the law firm of Lovett & Linder, Ltd. alleging a violation of the Provisional Order because the yellow pages of telephone directories included only the pages colored yellow, not the inside back cover. Carter, 425 A.2d at 1245. In the Carter opinion, the court clarified the Provisional Order by explicitly stating that advertisements could only be in the pages actually colored yellow. Id. Lovett & Linder then brought a class action in the United States District Court for the District of Rhode Island challenging the yellow page limitation. Lovett & Linder, 523 F. Supp. at 904. The court held that the limitation to the actual yellow pages violated the First Amendment. Id. at 910.

n61 See supra note 60 (discussing In re Provisional Order No. 11).

n62 Compare Model Rules of Professional Conduct Rule 7.2 (1992) (stating guidelines for advertising), with R.I. Rules of Professional Conduct Rule 7.2 (1995) (stating similar guidelines for advertising). The ABA promulgated the Model Rules of Professional Conduct in 1983. Model Rules of Professional Conduct (1983); see American Bar Association, supra note 46, at 10305 (discussing evolution of ABA advertising regulations). Before 1983, the Model Code of Professional Responsibility, which was the predecessor to the Model Rules, contained the ABA's suggested guidelines on advertising. American Bar Association, supra note 46, at 103-05. In light of the Bates decision, the ABA amended the Model Code to allow advertising in 1977. Id.

n63 See Sheridan, supra note 7, at 3-5 (requesting submission of survey on advertising by Rhode Island attorneys); see also American Bar Association, supra note 46, 130-31 (discussing Rhode Island attorney advertisement). Some firms in Rhode Island have recently reduced contingency fees. Id. The Providence firm of Gidley, Sarli & Marusak made their fee reduction, from 33% to 25%, a central part of their advertising campaign. Id.

n64 See Sheridan, supra note 7, at 3-5 (providing copy of survey).

n65 See R. Kelly Sheridan, President's Message, R.I. B.J., Apr. 1996, at 3, 3 (providing results of survey).

n66 115 S. Ct. 2371 (1995).

n67 Telephone Interview with John A. Tarantino, Chairperson of the Ad Hoc Committee on Lawyer Advertising of the Rhode Island Bar Association (Apr. 1, 1996).

n68 See Sheridan, supra note 65, at 3 (noting committee reviewing information to make recommendation).

n69 Id. See Moore v. Morales, 63 F.3d 358, 363 (5th Cir. 1995) (upholding Texas' 30-day ban on attorney direct-mail solicitation of accident victims); Maria Shao, Dial-a-suit, Boston Globe, Oct. 10, 1995, at 37 (listing proposed Massachusetts advertising rule changes). The article mentions proposed regulations banning dramatizations and testimonials in attorney advertisements. Shao, supra, at 37.

n70 115 S. Ct. 2371 (1995).

n71 Id. at 2381; see The Supreme Court, 1994 Term--Leading Cases, 109 Harv. L. Rev. 190, 190-200 (1995) (reviewing Florida Bar case). But see Terrance C. Mead, Writing the Law of Lawyer Advertising, 23 Ariz. St. L.J. 191, 206-07 (1991) (discussing Court holdings that state cannot deny potential litigant right to receive information).

n72 Florida Bar, 115 S. Ct. at 2379.

n73 Id. at 2380; see supra note 19 and accompanying text (providing Central Hudson test for commercial speech).

n74 Compare Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 476 (1988) (striking down blanket ban on direct-mail solicitation), with Florida Bar, 115 S. Ct. at 2381 (upholding 30-day ban on directmail solicitation of accident victims).

n75 Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2381 (1995) (Kennedy, J., dissenting).

n76 See id. (stating majority "undercuts" and "unsettles" First Amendment protections).

n77 See id. at 2381-82 (Kennedy, J., dissenting) (stating better informed parties gain head start when direct-mail solicitation banned).

n78 See id. at 2382 (Kennedy, J., dissenting) (stating majority incorrect in declaring Florida Bar implicates different privacy interest than Shapero).

n79 Id. at 2383 (Kennedy, J., dissenting).

n80 Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2383 (1995) (Kennedy, J., dissenting).

n81 Id.

n82 See Jeffrey M. Brandt, Note, Attorney In-Person Solicitation: Hope For A New Direction And Supreme Court Protection After Edenfield v. Fane, 25 U. Tol. L. Rev. 783, 795 (1994) (stating attorney in-person solicitation not reviewed since Ohralik).

n83 See supra notes 27-33 and accompanying text (discussing Ohralik).

n84 507 U.S. 761 (1993).

n85 See id. at 763 (holding ban on CPA in-person solicitation violates First Amendment).

n86 Id. at 764.

n87 Id. at 777.

n88 Id. at 771; see supra note 19 and accompanying text (discussing Central Hudson test).

n89 Edenfield v. Fane, 507 U.S. 761, 770-72 (1993).

n90 Id. at 774.

n91 Id.

n92 Id. The Court noted that lawyer in-person solicitation has unique features that are not present in any other circumstances. Id. For example, attorneys are trained in the art of persuasion while CPAs are not. Id.

n93 See id. at 775-76 (discussing Ohralik); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 449-52 (1978) (describing attorney Ohralik's conduct).

n94 Compare Edenfield v. Fane, 507 U.S. 761, 777 (1993) (holding ban on CPA in-person solicitation violates First Amendment), with Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 467 (1978) (holding ban on lawyer in-person solicitation does not violate First Amendment).

n95 Edenfield, 507 U.S. at 779-80 (O'Connor, J., dissenting).

n96 Id.

n97 Id.

n98 See Alexandra Varney, Lawyers Turning in Peers for Ad Violations, Mass. Bar Ass'n Law. J., Oct. 1995, at 1 (stating most complaints come from other lawyers). The article quotes the general counsel of the Massachusetts Board of Bar Overseers (BBO) as stating "I don't think the public cares about lawyer advertisements as much as other lawyers do." Id. The chairman of the BBO believes these increasing complaints are the result of the increasingly competitive legal market. Id. at 16. Massachusetts admonished only one attorney for advertising infractions in 1994, and five by October, 1995. Id. at 1.

n99 See Model Rules of Professional Conduct (Amendments 1995) (noting 37 jurisdictions have adopted some form of Model Rules since 1983). Compare Ga. Code of Professional Responsibility DR 2-101(C)(4)(d) (1993) (banning all communication prompted by specific occurrence that could lead to personal injury action), with R.I Rules of Professional Conduct Rule 7.3(a) (1995) (banning solicitation where significant motive lawyer's pecuniary gain). Professor Stephen Gillers believes that Georgia's prohibition of targeted mailings in personal injury and wrongful death cases almost certainly violates the First Amendment. See Gillers, supra note 17, at 900 (discussing Georgia's rules). Georgia still bases its attorney advertising regulations on the older Code of Professional Responsibility. Ga. Code of Professional Responsibility (1993).

n100 Model Rules of Professional Conduct Rule 7.2 cmt. (1992). The first paragraph of the comment states:

To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. This interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

Id.

n101 Compare Model Rules of Professional Conduct Rule 7.2 cmt. (1992) (stating interest in expanding public information should prevail over tradition), with Fla. Rules of Professional Conduct Rule 4-7.2 (1995) (requiring extensive restrictions on attorney advertising). The Florida Rule requires television or radio advertisements to have only a single voice of a full-time employee of the firm; no celebrity voices are allowed. Fla. Rules of Professional Conduct Rule 4-7.2(b) (1995). It also bans dramatizations and allows only illustrations containing information that can be factually substantiated. Id. Rule 4-7.2(e)-(f).

n102 See supra note 100 and accompanying text (providing first paragraph of comment).

n103 Model Rules of Professional Conduct Rule 7.2 cmt. (1992). The third paragraph of the comment states:

Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about a lawyer, or against "undignified" advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant.

Id.

n104 Id. Rule 7.2(b).

n105 See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (1985) (observing both state and federal government may ban false, deceptive, or misleading commercial speech); see also Friedman v. Rogers, 440 U.S. 1, 15 (1979) (holding state has substantial, well-demonstrated interest in protecting public from deceptive, misleading trade names).

n106 See Model Rules of Professional Conduct Rule 7.2 cmt. (1992) (listing misleading and non-misleading statements from attorney advertisements). The comment mentions the statement from R.M.J. that the attorney was a member of the United States Supreme Court Bar. Id. The ABA lists this statement under the heading "statements found misleading." Id. Writing for the Court in R.M.J., Justice Powell noted only that such a statement could be misleading to someone unfamiliar with the Supreme Court Bar admission requirements. In re R.M.J., 455 U.S. 191, 205 (1982). Justice Powell concluded that nothing in the record before the Supreme Court indicated that the information in the advertisement misled the public. Id.

n107 Model Rules of Professional Conduct Rule 7.2 cmt. (1992).

n108 Id. Rule 7.1.

n109 Id. Rule 7.1(a). Section (a) of this rule also prohibits omitting a fact necessary to make the statement considered as a whole not materially misleading. Id.

n110 Id. Rule 7.1(b). Also prohibited are communications that state or imply that, "the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law." Id.

n111 Id. Rule 7.1(c). The ABA intended this section to apply to comparisons of fees charged. See id. Rule 7.1 cmt. (offering examples of price comparison claims in attorney advertisements). The Supreme Court has not ruled on whether statements about the quality of legal services can be factually substantiated and therefore would be allowed under this rule. Id.

n112 See supra note 106 and accompanying text (distinguishing misleading from non-misleading statements); see also Hill, supra note 2, at 133-36 (discussing subjective nature of false and misleading statements).

n113 See Model Rules of Professional Conduct Rule 7.3(a) (1992) (codifying ban on attorney in-person and live telephone solicitation for pecuniary gain); Louise L. Hill, A Lawyer's Pecuniary Gain: The Enigma of Impermissible Solicitation, 5 Geo. J. Legal Ethics 393, 408 (1991) (asserting emphasis on motivation by pecuniary gain misplaced in determining impermissible solicitation); supra notes 27-33 and accompanying text (analyzing Ohralik holding).

n114 See Merriam Webster's Collegiate Dictionary 18 (10th ed. 1993) (defining advertising); id. at 1118 (defining solicitation). The dictionary defines "advertise" as, "to announce publicly esp. by a printed notice or a broadcast . . . to call public attention to esp. by emphasizing desirable qualities so as to arouse a desire to buy or patronize." Id. at 18. It defines "solicit" as, "to approach with a request or plea . . . to urge (as one's cause) strongly . . . to try to obtain by usu. urgent requests or pleas." Id. at 1118.

n115 See Model Rules of Professional Conduct Rule 7.3 cmt. (1996) (discussing shift in classification of targeted mailing); American Bar Association, supra note 46, at 117-18 (considering Rule 7.3 in light of Shapero). This shift had the effect of removing targeted mailing from the list of prohibited methods of contact and including it in the regulatory scheme of all other advertisements. Model Rules of Professional Conduct Rule 7.3 cmt. (1996).

n116 Model Rules of Professional Conduct Rule 7.3 cmt. (1996). Before Shapero, lawyers could send general mailings to the public but could not send notices discussing specific legal problems to people known to have those problems. Id.

n117 Id. The comment states:



There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

This potential for abuse inherent in direct in-person or live telephone solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services."

Id.

n118 Id.

n119 Id. See Hill, supra note 113, at 393-94 (noting trouble discerning lawyer's motivation). Professor Hill notes the difficulty in determining when financial interest gives way to other interests like associational freedom. Id. at 413.

n120 See American Bar Association, supra note 46, at 212-13 (listing 10 aspirational goals for lawyer advertising).

n121 Id. The first goal states, "lawyer advertising should encourage and support the public's confidence in the individual lawyer's competence and integrity as well as the commitment of the legal profession to serve the public's legal needs in the tradition of the law as a learned profession." Id. The second goal states, "since advertising may be the only contact many people have with lawyers, advertising by lawyers should help the public understand its legal rights and the judicial process and should uphold the dignity of the legal profession." Id. The remaining goals read as follows:

3. While "dignity and "good taste" are terms open to subjective interpretation, lawyers should consider that advertising which reflects the ideals stated in these Aspirational Goals is likely to be dignified and suitable to the profession.

4. Since advertising must be truthful and accurate, and not false or misleading, lawyers should realize that ambiguous or confusing advertising can be misleading.

5. Particular care should be taken in describing fees and costs in advertisements. If an advertisement states a specific fee for a particular service, it should make clear whether or not all problems of that type can be handled for that specific fee. Similar care should be taken in describing the lawyer's areas of practice.

6. Lawyers should consider that the use of inappropriately dramatic music, unseemly slogans, hawkish spokespersons, premium offers, slapstick routines or outlandish settings in advertising does not instill confidence in the lawyer or the legal profession and undermines the serious purpose of legal services and the judicial system.

7. Advertising developed with a clear identification of its potential audience is more likely to be understandable, respectful and appropriate to that audience, and, therefore, more effective. Lawyers should consider using advertising and marketing professionals to assist in identifying and reaching an appropriate audience.

8. How advertising conveys its message is as important as the message itself. Again, lawyers should consider using professional consultants to help them develop and present a clear message to the audience in an effective and appropriate way.

9. Lawyers should design their advertising to attract legal matters which they are competent to handle.

10. Lawyers should be concerned with making legal services more affordable to the public. Lawyer advertising may be designed to build up client bases so that efficiencies of scale may be achieved that will translate into more affordable legal services.

Id.

n122 Id. at 135-56.

n123 Id. at 136. In formulating the considerations the ABA elevated the interests of the public above all other interests. Id. The ABA, however, did attempt to balance the public interest against an attorney's First Amendment right to advertise and the goal of upholding the dignity of the profession. Id.

n124 Id. at 135.

n125 See American Bar Association, supra note 46, at 106-10 (describing three paradigms).

n126 Id. at 106-07. Only Iowa has adopted this abolitionist model. Id. at 106. Commentators believe that the Iowa rules relating to attorney advertising would not withstand scrutiny by the Supreme Court of the United States. Id. at 107. The Court, however, has specifically refused to hear the challenge to the Iowa rules. See Humphrey v. Committee on Prof'l Ethics & Conduct, 475 U.S. 1114 (dismissing for lack of federal question), reh'g denied, 476 U.S. 1165 (1986). The Supreme Court of Iowa upheld the regulatory rules in 1984, deciding that the restrictions directly advanced the State's interest in assisting the public in choosing a lawyer. See Committee on Prof'l Ethics & Conduct v. Humphrey, 355 N.W.2d 565, 571 (Iowa 1984) (upholding advertising restrictions), vacated, 472 U.S. 1004 (1985). The Supreme Court of the United States vacated the judgment in light of Zauderer, but the Supreme Court of Iowa reached the same result on remand. See Committee on Prof'l Ethics & Conduct v. Humphrey, 377 N.W.2d 643, 647 (Iowa 1985) (upholding Iowa attorney advertising rules in light of Zauderer), appeal dismissed, 475 U.S. 1114, reh'g denied, 476 U.S. 1165 (1986). The Iowa rule prohibited "self laudatory" statements in electronic advertisement and required the spoken words to be in a "nondramatic voice." Iowa Code of Professional Responsibility DR 2-101(B)(5) (1996); see Humphrey, 377 N.W.2d at 655 (Larson, J., dissenting) (articulating Iowa rules). In upholding the restriction, the Iowa court recognized the unique problems inherent in electronic advertising and noted that the restrictions did not amount to a blanket ban. Humphrey, 377 N.W.2d at 646-47. The distinctive problems with electronic advertisement arose from its strong potential for abuse and unique potential for persuasion and intrusion. Id. at 647; see FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (noting pervasive qualities of broadcast media); CBS v. Democratic Nat'l Comm., 412 U.S. 94, 127-28 (1973) (recognizing captive nature of broadcast media audience).

n127 See American Bar Association, supra note 46, at 107-09 (discussing limited educational model). The attorney advertising rules in both Florida and Mississippi fit into this model. Id. at 108. Rules in these types of states prohibit testimonials in advertising and require most advertisements to carry a disclaimer stating: "The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask us to send you free written information about our qualifications and experience." Id. Attorneys in both Florida and Mississippi have challenged their state's advertising rules. See Jacobs v. Florida Bar, 50 F.3d 901, 906 (11th Cir. 1995) (holding state must demonstrate real harm from advertising to justify restrictions); Schwartz v. Welch, 890 F. Supp. 565, 575-76 (S.D. Miss. 1995) (stating Mississippi advertising rules violate lawyer's First Amendment rights). The future of this model seems dubious at best in light of the these rulings, although the Supreme Court of the United States upheld other aspects of the Florida rules. See supra notes 71-81 and accompanying text (discussing Florida Bar).

n128 See American Bar Association, supra note 46, at 109-10 (discussing third paradigm). Problems develop in determining what would mislead the public. Id.; see supra notes 105-112 and accompanying text (discussing misleading advertising).

n129 See supra notes 2-13 and accompanying text (discussing pros and cons of attorney advertising).

n130 See Andromeda L. Weissman, Lawyer Ads on the Internet Regulated in Texas, Law. Wkly. U.S.A., Jan. 29, 1996, at B3 (discussing lawyer advertisement on Internet); David L. Yas, Do Web Pages Violate Disciplinary Rules?, Mass. L. Wkly., Apr. 22, 1996, at 1 (discussing confusion about Internet advertising).

n131 See Weissman, supra note 130, at B3 (observing Texas first state to regulate lawyers on Internet).

n132 Id.

n133 Id.

n134 See Hale and Dorr Homepage (visited Jan. 16, 1997) <http://www.haledorr.com> (recognizing Massachusetts advertising rules may regulate homepage); see also Yas, supra note 130, at 1 (mentioning Hale and Dorr homepage). In addition to homepages on the Internet, there are also a good number of attorney lists on which attorneys may advertise. See Lawlinks Homepage (visited Jan. 7, 1997) <http://www.lawlinks.com> (listing attorneys by region); Attorney Link Homepage (visited Jan. 16, 1997) <http://www.lawyerlink.com> (listing attorneys by geographic location); LEGAL dot NET Homepage (visited Jan. 16, 1997) <http://www.legal.net> (listing information about attorneys).

n135 Weissman, supra note 130, at B3.

n136 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2377 (1995) (concluding direct-mail solicitation immediately following accident viewed poorly by public); Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 109 (1990) (noting misleading potential of attorney advertising); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 476 (1988) (finding personalized letter from attorney carries risk of inadvertent deception); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 644 (1985) (recognizing difficulty in determining accuracy of statements about legal services).

n137 Compare Florida Bar, 115 S. Ct. at 2381 (upholding Florida rules banning direct-mail solicitation of accident victims within 30 days of accident), and In re Primus, 436 U.S. 412, 429 (1978) (concluding state disciplinary rules cannot properly restrict solicitation on behalf of ACLU), with Shapero, 486 U.S. at 479 (holding state has no substantial interest in restricting truthful and nondeceptive lawyer solicitations), and Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 468 (1978) (holding disciplinary rules can properly restrict solicitation of accident victims).

n138 Compare Iowa Code of Professional Responsibility DR 2-101(B)(5) (1996) (banning dramatizations), with R.I. Rules of Professional Conduct Rule 7.2 (1995) (allowing advertising as long as not false or misleading).

n139 See Florida Bar, 115 S. Ct. at 2375-81 (discussing case history of commercial speech).

n140 See infra Part IV (proposing new rule).

n141 See Brief for Petitioner at 7, Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995) (No. 94226) (arguing existence of state interest in maintaining professionalism of profession); Brief for Respondents at 5, Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995) (No. 94-226) (agreeing state has interest in maintaining professionalism). The other interest advanced by the Bar concerns the familiar argument of protecting the public from overreaching and being unduly influenced by attorneys. Brief for Respondents at 6, Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995) (No. 94-226).

n142 See Brief for Respondents at 6, Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995) (No. 94-226) (alleging nothing in record supports view that 30-day ban serves to protect personal privacy). The Respondent's brief also states that the ban does not serve to increase or maintain the professionalism of attorneys or uphold public confidence in the administration of justice. Id.

n143 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2384 (1995) (Kennedy, J., dissenting) (noting insufficiency of regulation to advance state interests).

n144 See id. at 2386 (Kennedy, J., dissenting) (acknowledging majority opinion's major departure from previous rulings on commercial speech).

n145 See id. at 2385 (Kennedy, J., dissenting) (noting ban will only effect those most in need of legal representation).

n146 See id. (stating restriction deprives accident victims of information critical to filing legal claim). Justice Kennedy mentions that the ban harms both those seriously injured and those with minor injuries. Id. The ban harms those with minor injuries because the victims may not know that any attorney would be interested in their case, while those with serious injuries may not know that time is of the essence and may be enticed into settling by the opposing party. Id.

n147 See id. at 2383 (Kennedy, J., dissenting) (noting second interest in protecting reputation and dignity of profession).

n148 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2386 (1995) (Kennedy, J., dissenting) (recognizing real progress furthered by increase in rational speech). Official regulation in this area should not even be necessary because people do not hire lawyers who offend them. Id. at 2385 (Kennedy, J., dissenting). The problem, of course, arises from the subjective nature of offensive materials: What one person finds offensive may not necessarily offend someone else. See supra note 11 and accompanying text (discussing nontraditional lawyer advertisement). Attorney Rosalie Osias' advertisement, which many would call offensive and deleterious to the professional image of lawyers, has drastically increased her business. Id.

n149 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2385 (1995) (Kennedy, J., dissenting) (listing ways solicitation can aid those most in need).

n150 See id at 2383 (Kennedy, J., dissenting) (discussing effect of solicitation letters on public perception).

n151 See id. at 2384-85 (1995) (Kennedy, J., dissenting) (articulating third prong of Central Hudson test). Here, the relationship between the restriction and the purported state interests is not a "reasonable fit." See id. at 2384 (Kennedy, J., dissenting) (recognizing lack of reasonable fit).

n152 See American Bar Association, Legal Advertising: The Illinois Experiment 33 (1985) (indicating results of survey show public acceptance of lawyer advertising); see also American Bar Association, supra note 46, at 3 (finding attorney advertising not a factor in declining public view of lawyers); Tape, supra note 2 (noting growth of advertising budget because of success).

n153 See American Bar Association, Report on the Survey on the Image of Lawyers in Advertising 55 (1990) (concluding consumers of legal services and lawyers prefer tasteful advertising).

n154 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2385 (1995) (Kennedy, J., dissenting) (noting people do not hire lawyers who offend them).

n155 See Bates v. State Bar, 433 U.S. 350, 369-70 (1977) (noting bankers and engineers advertise without adverse effect on professionalism); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (holding restrictions on pharmacist advertising violate First Amendment).

n156 See American Bar Association, supra note 46, at 2 (articulating Court created obligation to assure advertising provides free and clean dissemination of information).

n157 See supra note 154 and accompanying text (realizing market will correct itself).

n158 Id. (realizing market will correct itself).

n159 See Gerry Spence, With Justice For None 221-34 (1989) (proposing training new justice motivated lawyers).

n160 American Bar Association, supra note 46, at 63-71 (discussing public image of lawyers).

n161 See Hill, supra note 113, at 393 (concluding emphasis on pecuniary gain in lawyer solicitation misplaced).

n162 Id. at 417 (reasoning lawyer motivated by personal conviction as likely to overreach as fee motivated lawyer).

n163 Id. at 413 (realizing motivation subjective and difficult to discern and monitor).

n164 Id. at 417 (listing possible motivations for attorney solicitation). Professor Hill mentions contacts the lawyer hopes to gain, publicity the lawyer hopes to receive, experience the lawyer hopes to gain, political causes, and humanitarian concerns as other possible motivations. Id.

n165 See Model Rules of Professional Conduct Rule 7.3 cmt. (1992) (mentioning decreased likelihood of abusive practices when lawyer not motivated by pecuniary gain). The comment to Rule 7.3, however, fails to clarify why the Supreme Court views pecuniary gain as the root of the perceived evil of solicitation. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464 (1978) (noting employment for pecuniary gain inherently conducive to overreaching). The comment specifically states, "inperson solicitation for pecuniary gain is basically impossible to regulate," but the rule neglects to explain why this is so. Model Rules of Professional Conduct Rule 7.3 cmt. (1992). Solicitation motivated by humanitarian reasons poses the same difficulties of regulation, as well as overreaching, but strangely this does not cause the Court or the ABA as much concern. See id. (recognizing greater constitutional protection for solicitation based on a group right or interest). Solicitation of class members in federal class actions and solicitation of groups to join prepaid legal services plans also, contrary to the stated purposes of solicitation regulations, do not fall under the ban. Id.

n166 See Hill, supra note 113, at 416 (noting lack of case law defining what constitutes pecuniary gain). Professor Hill concisely sums up the problem by stating, "the problem with solicitation is not that a lawyer gets paid, or wants to get paid, but that a lawyer may overpower an individual and use pressure tactics to capture a potential client." Id. at 417.

n167 Id. at 418-21 (discussing how solicitation rules disproportionately impact small firms).

n168 Id. at 422 (concluding ban should extend only to actual overreaching).

n169 Id. (assessing possible benefits of unregulated solicitation). The Supreme Court has defined the State's interest in banning in-person solicitation as a prophylactic one designed to prevent harm before it occurs. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464 (1978). Therefore a modification of the ban on in-person solicitation would require a fundamental change in the Court's view of the State's interest. See id. (articulating State's present interest). The interest in preventing harm before it occurs by banning in-person solicitation, however, directly collides with another state interest: That of providing the public with free and open access to information. See Bates v. State Bar, 433 U.S. 350, 364 (1977) (stating commercial speech serves indispensable role in free market system). Balancing these interests and adding the attorney's First Amendment rights leads to the conclusion that unregulated solicitation would best lead to the accomplishment of all these goals with relatively little increase in regulation. See Hill, supra note 113, at 422 (addressing interests of attorney in-person solicitation). This new rule, banning only solicitation involving actual overreaching, would do away with theoretical debates about motivation and pecuniary gain, and look only at objective overreaching and undue influence. Id.

n170 See supra note 100 and accompanying text (discussing goals of attorney advertising).

n171 See supra notes 8-10 and accompanying text (discussing problems with attorney advertising).

n172 See Model Rules of Professional Conduct Rules 7.1-7.3 (1992) (articulating rules on attorney advertising).

n173 See Calvani et al., supra note 15, at 778 (discussing how liberal advertising rules lower prices and improve quality of legal services).

n174 See Bates v. State Bar, 433 U.S. 350, 364 (1977) (noting how commercial speech informs public).

n175 See Model Rules of Professional Conduct Rule 7.2 cmt. (1992) (feeling need to articulate between misleading and non misleading advertisements).

n176 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2385 (1995) (Kennedy, J., dissenting) (stating individuals will not hire offensive lawyers).

n177 Id.

n178 See Hill, supra note 113, at 422 (opining actual overreaching or undue influence best test for attorney solicitation).

n179 See American Bar Association, supra note 46, 212-13 (listing goals of permissible attorney advertising).

Copyright (c) Tennessee Law Review Association, Inc. 1982.

The University of Tennessee

FALL, 1982

50 Tenn. L. Rev. 175

LENGTH: 11815 words

RECENT DEVELOPMENT: LEGAL ETHICS -- LAWYER ADVERISING -- ADVERTISING THAT IS NOT MISLEADING MAY NOT BE PROSCRIBED

In re R.M.J., 102 S. Ct. 929 (1982)

Joanne G. Caldwell

SUMMARY: ... In the first of these cases, Bigelow v. Virginia, the Court extended first amendment protection to commercial speech. ... Consolidated Edison's companion case, Central Hudson Gas and Electric Corporation v. Public Service Commission of New York, refined this standard further into a test to establish first amendment limits on the regulation of the content of commercial speech. ... The Court said that though "[i]n most other contexts, the First Amendment prohibits regulation based on the content of the message . . . . [T]wo features of commercial speech permit regulation of its content." ... These forms of commercial speech are outside the scope of the first amendment because of their content. The Court said that beyond regulations prohibiting deceptive advertising and advertising of illegal activities, "the government's power [to restrict the content of commercial speech] is more circumscribed." ... This indicates that the Court did not make a distinction in Central Hudson between the rule applicable to regulation of content and the rule applicable to regulation of time, place, and manner of commercial speech. ... Thus the Court in R.M.J. seemed to apply the Central Hudson test to determine the first amendment validity of the commercial speech regulation at issue regardless of whether the regulation concerned content-based restrictions or time, place, or manner restrictions. ...

TEXT:

[*175] Defendant, an attorney in St. Louis, Missouri, placed an advertisement in a local newspaper <=3> n1 and in the yellow pages of the local telephone directory <=4> n2 that violated Disciplinary Rule (DR) 2-101(B) of Missouri Supreme Court Rule 4 <=5> n3 governing advertising by [*176] lawyers. <=6> n4 The advertisement included the fact that defendant was licensed to practice in Missouri and Illinois and the statement in block letters that he was "admitted to practice before the United States Supreme Court." Such information is outside that permitted to be published by DR 2-101(B). The advertisement also listed fourteen areas of practice <=7> n5 in violation of an addendum to DR 2-101(B), <=8> n6 which contains a listing of twenty-three fields of law <=9> n7 that [*177] may be advertised and the statement that "[n]o deviation from the above phraseology will be permitted. . . ." <=10> n8 Defendant used wording outside that prescribed in the addendum <=11> n9 in his advertisement and included some areas not in the list of approved fields of specialty. <=12> n10 Defendant also mailed out cards announcing the opening of his office, a violation <=13> n11 of DR 2-102(A)(2), which stipulates that announcement cards may be mailed only to "lawyers, clients, former clients, personal friends, and relatives." <=14> n12 Disbarment proceedings were brought by members of the Advisory Committee of the Missouri Bar <=15> n13 before the Supreme Court of Missouri. <=16> n14 The Court privately reprimanded defendant, upholding DR 2-101(B) of Rule 4 against defendant's constitutional challenge. <=17> n15 On appeal to the United [*178] States Supreme Court, held, reversed. The Supreme Court of Missouri's rules governing lawyer advertising, which prohibit the identification of jurisdictions in which an attorney is licensed to practice, deviation from the precise wording required to list areas of practice in an advertisement, and mailing announcement cards to any persons other than "lawyers, clients, former clients, personal friends, and relatives," violates the first amendment in the absence of a finding that the speech is misleading or that there is a special regulatory need. In re R.M.J., 102 S. Ct. 929 (1982).

In Bates v. State Bar of Arizona, <=19> n16 the United States Supreme Court held that absolute prohibition of advertising by lawyers was unconstitutional under the first amendment. Since Bates, all states and the District of Columbia have passed new rules on lawyer advertising. <=20> n17 These rules range in degree from rules that strictly delineate what lawyers may or may not include in advertisements <=21> n18 to regulations merely prohibiting false, misleading, or deceptive advertising. <=22> n19 The Supreme Court of Missouri's rules represent a more restrictive approach to the regulation of lawyer advertising. In R.M.J. the Court was presented with the question whether certain aspects of Missouri's revised ethical rules, as applied to the advertisement at issue in this case, represented invalid restrictions on first amendment rights. <=23> n20

In the early days of the bar, lawyers considered themselves above the competitive spirit characteristic of trade. <=24> n21 In addition to a general distaste for advertising and solicitation, some traditional reasons for their prohibition <=25> n22 were fear of encouraging [*179] litigation, fear of misleading the ignorant, and fear that "lawyers who advertise and solicit would use improper means to make good their extravagant inducements." <=26> n23 It was not until 1977 that the Supreme Court finally addressed the constitutional issue implicit in the ban against advertising.

The defendants in Bates were two young attorneys who, after working several years for a legal aid service, perceived a need for low priced, standardized legal services. <=27> n24 Accordingly, they opened a legal clinic in Pheonix, Arizona, which depended upon a high volume of clients because of the modest fees charged. <=28> n25 To generate this volume, the defendants ran an advertisement of their fees in a local newspaper, <=29> n26 which violated the State's prohibition against advertising. <=30> n27 Consequently, the State Bar of Arizona instigated disciplinary proceedings against the defendants. <=31> n28

The defendants, conceding a violation of DR 2-101(B), relied on two previously decided Supreme Court cases to support a challenge to the validity of the rule under the first amendment. <=32> n29 In the first of these cases, Bigelow v. Virginia, <=33> n30 the Court extended first amendment protection to commercial speech. <=34> n31 The Court restated this [*180] rule in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., <=35> n32 which involved the advertisement of prescription drug prices. <=36> n33 The Court in Virginia Pharmacy qualified its holding by stating that though "commercial speech . . . is protected, we of course do not hold that it can never be regulated in any way." <=37> n34 The Court said that restrictions on time, place, and manner of advertising had been "often approved . . . provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information." <=38> n35 The Court also said that restrictions on false or misleading advertisements, or advertisements proposing illegal transactions were not prohibited by the first amendment. <=39> n36

The Court in Virginia Pharmacy expressly reserved the question whether the holding extended first amendment protection to the advertisement of professional services such as those of physicians and lawyers. <=40> n37 In Bates, the Supreme Court of Arizona [*181] held that it did not, thus upholding the constitutionality of DR 2-101(B). <=41> n38

In the landmark decison of Bates v. State Bar of Arizona, <=42> n39 the United States Supreme Court held that advertising by attorneys may not be subjected to blanket suppression. <=43> n40 In reaching this decision, the majority <=44> n41 considered each of the traditional justifications for the prohibition of advertising and found them lacking as reasons for complete suppression.

Rather than tainting "the dignified public image of the profession," <=45> n42 the Court pointed out that advertising of legal fees might work to dispel public disillusionment about the profession by helping people to find affordable legal services. <=46> n43 Other professions, such as banking and engineering, allowed advertising with no damage to their dignity. <=47> n44

Nor did the Court feel that advertisement of fees for clearly defined routine legal services <=48> n45 was inherently misleading as long as the lawyer did the work advertised at the promised price, <=49> n46 informed the client on the front end of possible complications [*182] requiring more than the standard service and possible additional cost, <=50> n47 and included in the advertisement enough information to allow the potential client to make an informed choice about legal services. <=51> n48

The Court noted that advertising, rather than encouraging frivolous litigation, would make information available to those in need of legal services who are uninformed about how to obtain those services. <=52> n49 The Court also remarked that advertising should reduce legal fees through competition rather than raise them through higher overhead costs <=53> n50 and provide a benefit to lawyers entering the legal profession by giving them a more effective way to reach potential clients than slow penetration of the established market. <=54> n51

The Court indicated that proponents of the prohibition of advertising underestimated the public; <=55> n52 the argument that the public is too susceptible to deceptive advertising to provide the proper market restraints on misleading advertisements was based on the assumptions of an ignorant public as well as exploitive lawyers. <=56> n53

The Court concluded that none of these reasons justified blanket suppression of advertising by lawyers. <=57> n54 The Court also concluded that the advertisement at issue in Bates was not misleading, as argued by the State Bar, and thus fell within the protection of the first amendment. <=58> n55 The Court held that the State may not prevent the publication in a newspaper of a truthful advertisement concerning the availability and terms of routine legal services. <=59> n56

The Court in Bates reiterated the limitations of the Virginia [*183] Pharmacy holding. <=60> n57 States may prohibit false, misleading, or deceptive advertising <=61> n58 or advertising concerned with illegal activities, <=62> n59 and reasonable restrictions may be imposed on time, place, and manner of advertising. <=63> n60 The Bates Court gave as an example of possibly deceptive advertising claims of quality, which are not easily verifiable and may be "so likely to be misleading as to warrant restriction." <=64> n61 The Court said that states may constitutionally require some sort of disclaimer or explanation to eliminate possible deception, even of an advertisement such as the one at issue in Bates. <=65> n62 The only example of an activity that the Court indicated might merit a time, place, or manner restriction was in-person solicitation, but this issue was not before the Court in Bates. <=66> n63

Thus, after the Bates decision, the extent to which states could restrict the content of advertisements, beyond the restriction of false, misleading, or deceptive advertising or the restriction of advertising of illegal transactions, was unclear. The Court suggested that claims of quality could be restricted due to the inherently misleading nature of such claims, but beyond this the Court did not clearly define the extent of its holding. The Court noted, "[W]e recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly." <=67> n64

The limitations on time, place, and manner restrictions of commercial speech, which were left open by the Court in Bates were [*184] discussed in the context of in-person solicitation in Ohralik v. Ohio State Bar Association. <=68> n65 In Ohralik, the defendant approached two automobile accident victims who were still recovering from injuries sustained in the accident. <=69> n66 Defendant, an attorney, pressed his employment upon the two women, eventually obtaining both women's signatures on contracts employing him to represent them. <=70> n67 Defendant was suspended indefinitely from practice by the Supreme Court of Ohio, which found that he had violated DR2-103(A)("A lawyer shall not recommend employment . . . of himself. . . .") and 2-104(A) ("A lawyer who has given unsolicited advice to a layman that he should obtain counsel . . . shall not accept employment resulting from that advice. . . ."). <=71> n68 The United States Supreme Court noted probable jurisdiction "to consider the scope of protection of a form of commercial speech, and an aspect of the State's authority to regulate and [*185] discipline members of the bar, not considered in Bates." <=72> n69 The Court affirmed the judgment of the Ohio Supreme Court. <=73> n70

The Court stated that though commercial speech had been extended constitutional protection in Virginia Pharmacy, <=74> n71 it had "a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values . . . allowing modes of regulation that might be impermissible in the realm of noncommercial expression." <=75> n72 In-person solicitation involved commercial speech that was "an essential but subordinate component" <=76> n73 of the transaction, lowering "the level of appropriate judicial scrutiny." <=77> n74 Because in-person solicitation conveyed commercial information in a manner that might discourage persons who needed counsel from making an informed decision about legal services through undue influence and pressure to provide an immediate response, <=78> n75 the state had important interests at stake which justified regulation. <=79> n76 The Court, while finding that first amendment protection extended to in-person solicitation, ruled that the degree of protection afforded in-person solicitation for pecuniary gain <=80> n77 was outweighed by the interest of the state in protecting its citizens from the evils inherent in it, such as "stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation." <=81> n78

The Court thus held that disciplining an attorney for in-person solicitation of clients, under circumstances likely to pose dangers that the State has a right to prevent, was a constitutionally valid time, place, and manner restriction. <=82> n79

[*186] The clearest statement by the Court distinguishing between the rule for time, place, and manner restrictions and the rule applicable to content-based regulations came in Consolidated Edison Company of New York, Inc. v. Public Service Commission of New York. <=83> n80 In Consolidated Edison, plaintiff, who had sent written material stating its views on nuclear power in monthly electric bills, <=84> n81 sought review of an order by defendant barring utility companies from including inserts in controversial issues. <=85> n82 The Supreme Court held the regulation [*187] invalid <=86> n83 after finding that it was neither a reasonable time, place, or manner restriction <=87> n84 nor a permissible regulation of content. <=88> n85 The Court stated that "[a] restriction that regulates only the time, place or manner of speech may be imposed as long as it is reasonable," <=89> n86 serves "a significant governmental interest," <=90> n87 and leaves "ample alternative channels for communication," <=91> n88 but it "may not be based upon either the content or subject matter of speech." <=92> n89 The Court set the standard for content-based regulation of speech: it must be shown "that the regulation is a precisely drawn means of serving a compelling state interest." <=93> n90

Consolidated Edison's companion case, Central Hudson Gas and Electric Corporation v. Public Service Commission of New York, <=94> n91 refined this standard further into a test to establish first amendment limits on the regulation of the content of commercial speech. The case arose because of an order issued by the defendant during the fuel shortage of 1973 banning all advertising designed to promote the use of electricity. <=95> n92 The Court found that this was protected commercial speech <=96> n93 that was neither inaccurate nor involved illegal activity, <=97> n94 that the government's interest in the conservation of energy was both clear and substantial, <=98> n95 and that there was a direct link between the state interest and conservation <=99> n96 but held that the regulation prohibiting advertising in this case could not be justified because the regulation was more extensive than necessary to serve the state interest. <=100> n97

The Court in Central Hudson first noted the value of commercial speech: "Commercial expression not only serves the economic interest [*188] of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information." <=101> n98 Nevertheless, the Court said, commercial speech is afforded a "lesser protection" by the Constitution than "other constitutionally guaranteed expression . . . . The protection available for particular expression turns on the nature both of the expression and of the governmental interests served by its regulation." <=102> n99

The Court said that though "[i]n most other contexts, the First Amendment prohibits regulation based on the content of the message . . . . [T]wo features of commercial speech permit regulation of its content." <=103> n100 Those features are the speaker's ease in verifying his message and in assessing the legality of the underlying activity and the hardiness of commercial speech because of the economic value to the speaker. <=104> n101

The Court noted that the government has an interest in banning both deceptive advertising <=105> n102 and the advertising of illegal activities. <=106> n103 These forms of commercial speech are outside the scope of the first amendment because of their content. <=107> n104 The Court said that beyond regulations prohibiting deceptive advertising and advertising of illegal activities, "the government's power [to restrict the content of commercial speech] is more circumscribed." <=108> n105 The Court said, "The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest." <=109> n106 Thus, the following considerations constitute the rule laid down by the Court in Central Hudson:

In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation [*189] directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. <=110> n107

The Court in Central Hudson was faced with an issue involving a content-based regulation of commercial speech (advertising designed to promote the use of electricity) and the opinion was phrased in terms of the content of commercial speech. Mr. Justice Blackmun, however, wrote a concurring opinion in which he said that he agreed that the enuciated four-part test was appropriate for a regulation related to the time, place, and manner of commercial speech. <=111> n108 This indicates that the Court did not make a distinction in Central Hudson between the rule applicable to regulation of content and the rule applicable to regulation of time, place, and manner of commercial speech.

In In re R.M.J., <=112> n109 the Supreme Court was presented with a constitutional challenge to a regulation that restricted both the content and the time, place, and manner of attorney advertising. The regulation as applied in this case was a restriction on content. The defendant was prosecuted for including in his advertisement the jurisdictions in which he was licensed to practice, a method of advertising not expressly permitted by the regulation. The regulation prescribed the exact words to be used in listing areas of specialty, which is a restriction both on the content (because of the meaning inherent in the required wording) and the manner (because the same meanings could be communicated through the use of words differing from the mandatory terms). The regulation also required that announcement cards sent out by attorneys be mailed only to "lawyers, clients, former clients, personal friends, and relatives," which is a time, place, and manner restriction. The Court, in a unanimous decision, held that the Missouri rules governing advertising by lawyers as applied in this case violated the first amendment rights of defendant. The Court used the test of Central Hudson <=113> n110 to determine the constitutional validity of the regulation of lawyer advertising without differentiating between [*190] content-based restrictions and restrictions on time, place, and manner.

First, the Court said that it must be determined whether or not the advertising was protected by the first amendment. If the advertising is "inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive," the Court said that regulation is permissible. <=114> n111 In other words, advertising that is deceptive either because of its content or its form is not protected by the first amendment. But if the advertisement conveys "potentially misleading information" that may also be "presented in a way that is not deceptive," the Court said that the states may not absolutely prohibit the advertising based on its content. <=115> n112

Second, the Court said that if the communication is not misleading, the state must assert a substantial interest in its regulation. <=116> n113 The Court in R.M.J. said that the Bates Court recognized the legitimate state interest in controlling advertising by attorneys because of "the special possibilities for deception presented by advertising for professional services." <=117> n114 The Court listed the factors creating this "special possibility" as "[t]he public's comparative lack of knowledge, the limited ability of professionals to police themselves, and the absence of any standardization in the 'product.'" <=118> n115

Third, the Court said that the state may not regulate advertising if that regulation will not directly advance a substantial interest of the state. <=119> n116 The R.M.J. Court said that "in Bates, the Court found that the potentially adverse effect of advertising on professionalism and the quality of legal services was not sufficiently related to a substantial state interest to justify so great an interference with speech." <=120> n117

Fourth, the Court in R.M.J. said that the state may only interfere with speech in proportion to the interest served. <=121> n118 Thus, the Court said that the state may require the use of disclaimers or explanatory statements if the speech is potentially deceptive, rather than prohibiting it entirely. <=122> n119 Speech that is not inherently deceptive nor proved deceptive in the past may be regulated, but through narrowly drawn restrictions which limit speech "only to [*191] the extent regulation furthers the state's substantial interest." <=123> n120

The Court then turned to "apply these generalizations to the circumstances of the case." <=124> n121 The Court found that because defendant's published list of specialties had not been found to be misleading and no substantial state interest had been demonstrated that would be promoted by the restriction, the application of the Missouri rule to this advertisement was an invalid restriction. <=125> n122 For the same reasons, the Court found that the prohibition of a listing of jurisdictions in which an attorney is licensed to practice could not be sustained in this case. <=126> n123 The Court was somewhat troubled by the defendant's listing, in large type, that he was a member of the bar of the Supreme Court of the United States because this was potentially misleading. But, the Court said, the Missouri Supreme Court did not find that this was in fact misleading and the regulation in question did not "specifically identify this information as potentially misleading, or, for example, place a limitation on type size or require a statement explaining the nature of the Supreme Court bar." <=127> n124 The Court also said that the restriction on mailing announcement cards to "lawyers, clients, former clients, personal friends, and relatives" was not shown to advance a substantial government interest, nor was it demonstrated that absolute prohibition was the least restrictive path available to advance whatever interest would be served by this restriction. <=128> n125 Thus the Court in R.M.J. seemed to apply the Central Hudson test to determine the first amendment validity of the commercial speech regulation at issue regardless of whether the regulation concerned content-based restrictions or time, place, or manner restrictions.

The holding of R.M.J. may be read narrowly to say that because of a silent record concerning whether or not a defendant's speech was misleading, DR 2-101(B) of Missouri Supreme Court Rule 4 <=129> n126 was unconstitutionally applied. The Court emphasized in part IV of the opinion the silence of the record from the lower court. Among other things, the Court noted:

[T]he listing . . . has not been shown to be misleading. . . . <=130> n127

Such information is not misleading on its face. <=131> n128

[*192] There is nothing in the record to indicate that the inclusion of this information was misleading. <=132> n129

But again we have a silent record. <=133> n130

There is no finding that [defendant's] speech was misleading. <=134> n131

The wording used by the Court also indicated that the Advisory Committee (plaintiff) failed to indicate in its arguments a substantial state interest in either the use of the specific words required to list areas of practice in the addendum to DR 2-101(B) <=135> n132 or the prohibition of identification of jurisdiction in which an attorney is licensed to practice. <=136> n133 The Committee also failed to state a reason for the prohibition against mailing announcement cards to persons other than "lawyers, clients, former clients, personal friends and relatives." <=137> n134

The holding in R.M.J. may be that the restrictions imposed by Missouri were valid, and it was only their application to this record that was an invalid restriction on speech. <=138> n135 The Court might uphold requiring strict adherence to prescribed terminology if it were shown, for example, that the public did not know that the prescribed terms and the terms used by the defendant were the same, and that the state had an interest in communicating the exact definition inhering in the prescribed words. <=139> n136

In a similar vein, the Court said of the defendant's proclamation in large boldface type that he was licensed to practice before the United States Supreme Court that "such a statement could be misleading to the general public unfamiliar with the requirements of admission to the bar of this Court. Yet there is no finding to that effect by the Missouri Supreme Court." <=140> n137

The Court also pointed out that "[m]ailings and handbills may [*193] be more difficult to supervise than newspapers. Again, however, we deal with a silent record. There is no indication that an inability to supervise is the reason the State restricts the potential audience of announcement cards." <=141> n138

The holding of the case may be read more broadly as an example of the application of the Central Hudson test to the regulation of attorney advertising. The opinion may be read to say that, first of all, the defendant's advertisement was not misleading and therefore it was protected by the first amendment. Second, the Bates decision demonstrated that the state has a substantial interest in protecting its citizens from deceptive advertising. <=142> n139 Because the listing of areas of practice and the listing of jurisdictions in which an attorney may practice is potentially deceptive, the state does have an interest in regulating the advertisement of this information. The Court said, however, that the Advisory Committee failed to show that its list was any less deceptive than the one used by defendant; <=143> n140 therefore, that portion of the regulation did not advance the state's interest. Identification of jurisdictions in which an attorney is licensed to practice is "factual and highly relevant information. . . ." <=144> n141 Consequently, its prohibition also failed to advance any state interest.

The Advisory Committee also filed to assert a substantial interest in the identity of recipients of an attorney's announcement cards. The Court suggested that the reason for this restriction was difficulty of supervision. <=145> n142 But even though this reason was omitted from the Committee's argument and hence the record, the Court indicated that absolute prohibition failed the last element of the Central Hudson test -- the regulation was more extensive than necessary to serve that interest. <=146> n143

The Court failed to give much clear guidance in R.M.J. beyond a statement of the "general principles" <=147> n144 involved in regulating attorney advertising, which it gave in dicta, and the holding of the case, which is limited to the facts. The Court said,

We recognize, of course, that the generalizations summarized above do not afford precise guidance to the Bar and the courts. They do represent the general principles that may be distilled from our decisions in this developing area of the law. As they are applied on a case by cases [sic] basis -- as in Part IV of this opinion -- more specific guidance will be available. <=148> n145

[*194] The holding of the R.M.J. case is that states may not prohibit advertising that is not found to be misleading nor regulate advertising unless the regulation is carefully drawn to serve a substantial state interest. <=149> n146 This holding does not differentiate between content-based regulations or time, place, and manner restrictions. For example, the restriction on the mailing of announcement cards to persons other than "lawyers, clients, former clients, personal friends, and relatives," which is clearly a time, place, and manner restriction, failed in this instance because there was no assertion of a substantial interest that would be served by the regulation <=150> n147 and because absolute prohibition would be too extensive a restriction in proportion to any interest served. <=151> n148 This was the standard enunciated in Consolidated Edison, <=152> n149 and refined in Central Hudson, <=153> n150 as that which must be met to establish the validity of content-based regulation of speech. From this, one could infer that the same rule (the Central Hudson test) is applicable to both content-based and time, place, and manner restrictions. Unfortunately, the Court restricted this holding to the facts of the case with such care <=154> n151 that it is difficult to derive clear direction from the case. <=155> n152

FOOTNOTES:

n1 The advertisement appeared in the West End Word, a newspaper published in St. Louis, Missouri, in November 1977 and January 1978. Statement of Jurisdiction, app. G. at A-23-A-24, In re R.M.J., 102 S. Ct. 929 (1982).

n2 The February and August 1978 issues of the St. Louis Suburban West Telephone Directory carried defendant's advertisement. Id. at A-24.

n3 DR 2-101. Publicity

(B) In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish, subject to DR 2-103, the following information in newspapers, periodicals and the yellow pages of telephone directories distributed in the geographic area or areas in which the lawyer resides or maintains offices or in which a substantial part of the lawyer's clientele resides, provided that the information disclosed by the lawyer in such publication complies with DR 2-101(A), and is presented in a dignified manner:

(1) Name, including name of law firm and names of professional associates; addresses and telephone numbers;

(2) One or more particular areas or fields of law in which the lawyer or law firm practices if authorized by and using designations and definitions authorized for that purpose by The Advisory Committee;

(3) Date and place of birth;

(4) Schools attended, with dates of graduation and degrees;

(5) Foreign language ability;

(6) Office hours;

(7) Fee for an initial 30-minute consultation;

(8) Availability upon request of a schedule of fees;

(9) Credit Arrangements for payment of fees will be given consideration;

(10) The fixed fee to be charged for the following specific routine legal services:

1. An uncontested dissolution of marriage;

2. An uncontested adoption;

3. An uncontested personal bankruptcy;

4. An uncomplicated change of name;

5. A simple warranty of quitclaim deed;

6. A simple deed of trust;

7. A simple promissory note;

8. An individual Missouri or federal income tax return;

9. A simple power of attorney;

10. A simple will;

11. Such other services as may be approved by The Advisory Committee; the description of which would not be misunderstood or be deceptive, provided that the statement discloses that the quoted fee will be available only to clients whose matters fall into the services described and that the client is entitled without obligation to a specific 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.

Mo. Ann. R. 4, DR 2-101(B) (Vernon 1981).

n4 Prior to the United States Supreme Court decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), in which the Court held that truthful advertising by attorneys of prices for certain routine legal services may not be subjected to blanket suppression, see text accompanying notes 24-62 infra, the Missouri Canons of Ethics prohibited all advertising by attorney except "the establishment of a well-merited reputation for professional capacity and fidelity to trust." Mo. Ann. Stat 4.27 (Vernon 1953). The Committee on Professional Ethics and Responsibility drafted amendments to the Missouri Code of Professional Responsibility which were effective January 1, 1978. Mo. Ann. R. 4 (Vernon 1981). The amendments were an attempt to "strike a midpoint between prohibition and unlimited advertising." Statement of Jurisdiction, Report of Committee (Sept. 9, 1977), at A-27, A-30, In re R.M.J., 102 S. Ct. 929 (1982).

n5 The defendant included the following: Corporate; Partnership; Tax; Securities-Bonds; Pension-Profit-Sharing; Trials and Appeals; Criminal; Real Estate; Wills, Estate-Planning, Probate; Bankruptcy; Personal Injury; Divorce, Separation, Custody, Adoption; Workman's Compensation; and Contracts. In re R.M.J., 102 S. Ct. 929, 940 app. A (1982).

n6 Addendum to DR 2-101(B)(2), 34 J. MO. B. 51 (1978) (effective Jan. 1, 1978).

n7 The addendum gives a choice of advertising of one of the three general areas of law or one or more of 23 specific areas. The general areas are the following: "General Civil Practice"; "General Criminal Practice"; or "General Civil and Criminal Practice." The twenty-three specific areas are: "Administrative Law"; "Anti-trust Law"; "Appellate Practice"; "Bankruptcy"; "Commercial Law"; "Corporate Law and Business Organizations"; "Criminal Law"; "Eminent Domain Law"; "Environmental Law"; "Family Law"; "Financial Institution Law"; "Insurance Law"; "International Law"; "Labor Law"; "Local Government Law"; "Military Law"; "Probate and Trust Law"; "Property Law"; "Public Utility Law"; "Taxation Law"; "Tort Law"; "Trial Practice"; and "Workers Compensation Law." Id.

n8 Id.

n9 In re R.M.J., 609 S.W.2d 411, 415 (Mo. 1981). For example, defendant used "Personal Injury" rather than "Tort Law" and "Tax" rather than "Taxation Law." See notes 5 and 7 supra.

n10 Defendant also failed to include in his advertisement a statement disclaiming certification of expertise as required by the addendum:

If one or more of these specific areas of practice are used in any advertisement, the following statement must be included in the same advertisement in print size at least equivalent to the largest print used in setting forth the areas of practice: "Listing of the above areas of practice does not indicate any certification of expertise therein."

Addendum to DR 2-101(B)(2), 34 J. Mo. B. 51 (1978).

The Court in Bates mentioned the possibility of requiring some sort of disclaimer "so as to assure that the consumer is not misled." 433 U.S. at 384. This reflects a policy consideration of the Bates decision: promotion of the free flow of information concerning legal services between lawyers and the public. In keeping with this policy, the Court in Bates said: "Although, of course, the bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, the preferred remedy is more disclosure, rather than less." 433 U.S. at 375. In other words, the preferable approach would be to allow more information to be conveyed in an advertisement, supplemented by a warning or disclaimer. See 433 U.S. at 384.

Defendant in R.M.J., dropped his challenge to the disclaimer requirement before appeal and thus the Court was not presented with the question of its constitutionality. See 102 S. Ct. at 938 n.18.

n11 Defendant mailed announcements to persons with whom his wife was casually acquainted but whom he apparently did not know. Statement of Jurisdiction, app. G, at A-25, In re R.M.J., 102 S. Ct. 929 (1982).

n12 Mo. Ann. R. 4, DR 2-102 (A)(2) (Vernon 1981).

n13 Statement of Jurisdiction at ii, In re R.M.J., 102 S. Ct. 929 (1982).

n14 In re R.M.J., 609 S.W.2d 411 (Mo. 1981).

n15 The majority of the court failed to explain the rationale of its decision, merely commenting:

It can truthfully be stated that a constitutional study in depth was made before DR 2-101 was adopted. On October 24, 1977, there was every reason to believe that the good-faith efforts made by the Committee [on Ethics and Responsibility] and this Court to follow Bates . . . would pass constitutional muster.

Id. at 411-12.

There were two dissenting opinions. Both concluded that the charges against defendant should have been dropped. Chief Justice Bardgett primarily stressed that the State had no significant interest in prohibiting the conduct at issue and therefore the attorney should not have been disciplined absent a showing that the advertisement was misleading to the public. Id. at 414 (Bardgett, C.J., dissenting). Judge Seiler stated that Bates prohibited only commercial speech which is false or misleading, deals with quality of service, concerns in-person solicitation, or involves illegal activity. Because the facts at issue did not concern any of these factors, the attorney should not have been disciplined. Id. at 416 (Seiler, J., dissenting).

n16 433 U.S. 350 (1977).

n17 Andrews, The Model Rules and Advertising, 68 A.B.A. J. 808 (1982).

n18 Id. at 809.

n19 Id. at 809-10.

n20 102 S. Ct. at 938.

n21 H. Drinker, Legal Ethics 210 (1953) [hereinafter cited as Legal Ethics].

n22 The ban against advertisement and solicitation was codified in 1908 by the American Bar Association in Canon 27, which prohibited any type of advertisement (except for professional cards) and all types of solicitation. Legal Ethics at 215. Canon 27 was redrafted in 1937 to provide for law lists. Id. at 216.

n23 Id. at 212.

n24 See 433 U.S. at 354.

n25 Id.

n26 Id.

n27 Ariz. Sup. Ct. R. 29(a), DR 2-101(B), Ariz. Rev. Stat. (Supp. 1976). This rule was similar to those of other States at that time and was modeled after the Model Code of Professional Responsibility. Model Code of Professional Responsibility DR 2-101(B) (1976).

n28 In re Bates, 113 Ariz. 394, 555 P.2d 640 (1976).

n29 Defendants' challenges that DR 2-101(B) was unconstitutionally vague and a violation of the right of equal protection of the law under the fourteenth amendment and a challenge of the State Bar disciplinary procedure as a violation of due process were dropped on appeal. 433 U.S. at 358 n.9.

The defendants retained a challenge to the validity of DR 2-101(B) under the Sherman Act, asserting that the prohibition against advertising inhibited competition among lawyers. Id. at 358. A plurality of the Arizona Supreme Court felt that the rule fell within the state action exception to the Sherman Act under the holding of Parker v. Brown, 317 U.S. 341 (1943), because it was enacted by the State acting as sovereign through the Arizona Supreme Court. 113 Ariz. at 396-97, 555 P.2d at 642-43. The United States Supreme Court affirmed on this issue. 433 U.S. at 359-63.

n30 421 U.S. 809 (1975).

n31 The Court had defined commercial speech as "expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas and Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561 (1980). Until the Bigelow decision in 1975, this type of speech was not accorded first amendment protection. See Valentine v. Chrestensen, 316 U.S. 52 (1942) ("purely commercial advertising" is outside scope of the first amendment). The court in Bigelow rejected the so-called "commercial speech" exception to the first amendment: "[commercial] speech is not stripped of First Amendment protection merely because it appears in that form." 421 U.S. at 818.

The rationale of extending first amendment protection to commercial speech was best expressed in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), where the Court said that commercial speech performs an important societal function by promoting the free flow of information between buyers and sellers. The Virginia Pharmacy Court said that this is essential to "a predominantly free enterprise economy [in which] the allocation of our resources in large measure will be made through numerous private economic decisions." 425 U.S. at 765.

The Court in Virginia Pharmacy also noted, however, that because commercial speech is more easily verified by the speaker than other forms of speech and because it may be more durable due to the commercial profit derived from it, it will be "less necessary to tolerate inaccurate statements for fear of silencing the speaker." Id. at 772. n.24.

n32 425 U.S. 748 (1976).

n33 The Court took this opportunity to restate the rule for fear that the facts of Bigelow might distinguish the case and limit the applicability of its holding. The publication at issue in Bigelow contained information concerning the availability of abortions, a matter of public interest as well as commercial interest. The advertisement of drug prices was described by the Court as "'ommercial speech.'" 425 U.S. at 760-61.

n34 Id. at 770.

n35 Id. at 771.

n36 Id. at 771-72.

n37 Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising.

Id. at 773 n.25.

n38 113 Ariz. at 395-400, 555 P.2d at 643-45.

n39 433 U.S. 350 (1977).

n40 Id. at 383.

n41 Chief Justice Burger, Justice Powell and Justice Stewart each agreed with the disposition of the antitrust issue but disagreed with the majority's view of the first amendment issue. Justice Rehnquist dissented on both issues.

Chief Justice Burger expressed the view that legal services are not by their nature "standard" and thus not fungible. Id. at 386 (Burger, C.J., concurring in part and dissenting in part). He also was concerned that advertising might create a trap for most clients, who do not always know in advance what services they will need or at least they do not know to what extent they will need legal services. Id. at 386-87 (Burger, C.J., concurring in part and dissenting in part). He suggested a program to publish a range of fees to the public to make them more knowledgeable about the price of legal services, making clear that the fee will vary from this range according to the degree of complexity involved in the legal problem. Id. at 388 (Burger, C.J., concurring in part and dissenting in part).

Justice Powell, who was joined by Justice Stewart, felt that the facts of Virginia Pharmacy rendered that holding totally inapplicable to advertising by lawyers. The great potential for deceptive advertising and the difficulty of regulation distinguish even "routine" legal services from prepackaged prescription drugs. Id. at 390-91 (Powell, J., joined by Stewart, J., concurring in part and dissenting in part).

Justice Rehnquist expressed the opinion that first amendment protection should not be extended to commercial speech. Id. at 404 (Rehnquist, J., dissenting).

n42 433 U.S. at 368.

n43 Id. at 370.

n44 Id. at 369-70.

n45 The Court said: "Although many services performed by attorneys are indeed unique, it is doubtful that any attorney would or could advertise fixed prices for services of that type." Id. at 372. The Court also discussed the fact that the bar retains the power to decide what services must be included in the "package" offered. Id. at 373 n.28.

n46 Id. at 372-73.

n47 Id. at 373 n.28.

n48 Id. at 374-75.

n49 "Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action." Id. at 376.

n50 Id. at 377.

n51 Id. at 378.

n52 Id. at 375.

n53 Id. at 379.

n54 Id.

n55 The State Bar (plaintiff) argued that the advertisement was misleading in that it made use of the term "legal clinic" (an allegedly undefined term), advertised legal services for "very reasonable fees" though the fees advertised were not really that much lower than would be charged elsewhere, and advertised that the defendants would do a name change without informing the reader that he could obtain a name change without the services of a lawyer. The Court found none of these assertions persuasive as evidence of deceit because "legal clinic" was a self-explanatory term, the fees advertised were at the lower range of fees charged in the area, and most legal services may be performed legally by the client for himself. Id. at 381-82.

n56 Id. at 384.

n57 See notes 34-36 supra and accompanying text.

n58 433 U.S. at 383.

n59 Id. at 384.

n60 Id.

n61 Id. at 383-84.

n62 See id. at 384.

n63 Id.

n64 Id. After the Bates decision, all of the states adopted new rules allowing advertising by attorneys to some extent. Andrews, The Model Rules and Advertising, 68 A.B.A. J. 808 (1982).

Eighteen states plus the District of Columbia have taken what is known as the "directive approach," merely prohibiting all adverising that is misleading, false, or deceptive. A total of 30 states have taken the "regulatory approach," which means that they have rules which clearly delineate what may or may not be included in advertising by lawyers. These approaches were embodied by the American Bar Association in two proposals (proposals "A" and "B") from which most of the states' rules were modeled. See generally L. Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation (1980).

The state rules vary in strictness, but most continue to show a general disfavor of advertising by lawyers. For example, the advertisement at issue in Bates would not be allowed in 27 states. Andrews, The Selling of a Precedent, Student Lawyer, March 1982, at 12, 14.

n65 436 U.S. 447 (1978). The companion case of In re Primus, 436 U.S. 412 (1978), involved an attorney who wrote a letter to a woman who had been sterilized as a condition of the continued receipt of public medical assistance, advising her that the A.C.L.U. wanted to file suit on her behalf against the doctor who performed the operations. Id. at 416-17 n.6. The Court reversed a public reprimand ordered by the Supreme Court of South Carolina, holding that the state's application of its rule against solicitation by lawyers violated the right of associational freedom guaranteed by the first amendment.

The Court, in describing permissible limits to regulation of solicitation by states, drew a line between speech which is purely commercial and speech that is also related to political expression and association. Id. at 437-38. The state may not unnecessarily abridge the rights of nonprofit organizations or their members, for which litigation is a form of political expression and political association protected by the first amendment. Id. at 427-28. See NAACP v. Button, 371 U.S. 415 (1963).

Primus may be distinguished from Ohralik in that the form of speech was a letter rather than in-person solicitation (where there is a greater potential for overreaching) and the attorney in Primus was motivated by the political objectives of the A.C.L.U. rather than by pecuniary gain (which may cloud an attorney's judgment). 436 U.S. at 422.

A pecuniary motive alone is not enough to distinguish the two cases, however. See In re Teichner, 75 Ill. 2d 88, 387 N.E.2d 265 (1979), where an attorney's visiting of victims in the wake of two railroad disasters to solicit business was held to be constitutionally protected because his "activities [were] tinged with the sort of associational values strongly protected by the first and fourteenth amendments." 75 Ill. 2d at 103, 387 N.E.2d at 271. Though these considerations were coupled with a pecuniary motive, his conduct was found by the court to further the interests of a large number of the black community of Laurel, Mississippi, which otherwise might have received a less fair settlement from the accident. 75 Ill. 2d at 104, 387 N.E.2d at 271.

n66 One victim, Carol McClintock, was still in traction in the hospital when defendant approached her, and the other, Wanda Lou Holbert, had just been released from the hospital. 436 U.S. at 450.

n67 Id. at 450-51.

n68 Id. at 453 n.9.

n69 Id. at 454.

n70 Id.

n71. Id. at 455.

n72 Id. at 456.

n73 Id. at 457.

n74 Id.

n75 Id.

n76 Id. at 459.

n77 Id. at 456.

n78 Id. at 461.

n79 Id. at 449. Another form of time, place, and manner restriction is the restriction of the mailing of letters by lawyers. The disposition of the cases concerning this issue epitomizes the confusion created by the gaps left in the law after Bates and Ohralik. States have varied considerably in their rulings on the consitutionality of prohibiting this form of commercial speech.

In Kentucky Bar Ass'n v. Stuart, 568 S.W.2d 933 (Ky. 1978), a unanimous Supreme Court of Kentucky held that the prohibition of the mailing of letters by defendant to two real estate agencies advising them of his availability and fees for legal services was not a valid time, place, and manner restriction. The court said that letters are a form of advertisement and as such protected by the rule of Bates "unless [plaintiff] can justify prohibition of such speech by an interest which will outweigh individual and societal interests in the commercial speech." 568 S.W.2d at 934. The court found that these letters were not substantially different from the newspaper advertisement of Bates in the likelihood of overreaching or deception nor in the ease of enforcement of ethical standards, particularly if a rule were adopted requiring a copy of the letter to be submitted to the Kentucky Bar Association. See also Foley v. Alabama State Bar, 481 F. Supp. 1308, 1312 (N.D. Ala. 1979) (disciplinary rule requiring submission of copy of advertisement to Alabama State Bar after publication is "a reasonable restriction on the manner of advertising designed to enable the State Bar to determine which advertising is false and misleading").

In contrast, the Supreme Court of Louisiana in Allison v. Louisiana State Bar Ass'n, 362 So. 2d 489 (La. 1978), held that certain letters mailed by attorneys could be prohibited. The letters were sent to employees in the state describing certain legal services that plaintiffs would perform for employees. The court said that privately made offers such as this would be more difficult to regulate than the advertisement in Bates and more closely resembled the in-person solicitation of Ohralik in the difficulty of supervision. The court found that prohibition of this form of solicitation "would have no adverse impact upon constitutional rights (except the lawyer's own right to speak as he pleases in commercial solicitation)," 362 So. 2d at 496, and upheld the rule against direct mailings.

The Supreme Court of New York in In re Koffler, 70 A.D.2d 252, 420 N.Y.S.2d 560 (1979), held that letters mailed by attorneys to homeowners and real estate brokers advertising their fee for real estate closings could be prohibited because they were mailed to specific individuals (similar to in-person solicitation) rather than to the general public (as in a published advertisement). The New York Court of Appeals reversed this decision in Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140, 412 N.E.2d 927, 432 N.Y.S.2d 872 (1980), and said: "Direct mail solicitation of potential clients by lawyers is constitutionally protected commercial speech which may be regulated but not proscribed." 51 N.Y.2d at 143, 412 N.E.2d at 929, 432 N.Y.S.2d at 873.

See also Bishop v. Committee on Professional Ethics, 521 F. Supp. 1219 (S.D. Iowa 1981) (prohibition of direct mailing unconstitutional under Central Hudson test); In re Apper, 315 N.W.2d 204, 212 (Minn. 1981) (disciplinary rules unconstitutional "to the extent they prescribe discipline for distribution of the written materials involved"); Greene v. Grievance Comm. for the Ninth Judicial Dist., 54 N.Y.2d 118, 429 N.E.2d 390, 444 N.Y.S.2d 883 (1981) (restrictions imposed upon direct mailings unconstitutional). But cf. Florida Bar v. Schreiber, 407 So. 2d 595 (Fla. 1981) (letter not constitutionally protected speech).

For a discussion of this issue, see Note, Mail Advertising by Attorneys and the First Amendment, 46 Alb. L. Rev. 250 (1981).

n80 447 U.S. 530 (1980).

n81 Id. at 532.

n82 Id. at 533.

n83 Id. at 544.

n84 Id. at 537.

n85 Id. at 540-43.

n86 Id. at 536.

n87 Id. at 535.

n88 Id.

n89 Id. at 536.

n90 Id. at 540. The Court described the determination of the validity of restrictions on speech in terms of three inquiries: (1) whether the prohibition is a valid time, place, or manner restriction, which depends on whether the restriction is reasonable and content-neutral, Id. at 535-37; (2) whether the prohibition is a permissible subject-matter regulation, Id. at 537-40, examples of which are commercial speech, libel, obscenity and fighting words, Id. at 538 n.5; or (3) whether the prohibition is a "narrowly tailored means of serving a compelling state interest," Id. at 535, i.e., a permissible content-based restriction.

n91 447 U.S. 557 (1980).

n92 Id. at 558-59.

n93 Id. at 556-68.

n94 Id. at 566.

n95 Id. at 568-69.

n96 Id. at 569.

n97 Id. at 569-72.

n98 Id. at 561-62.

n99 Id. at 562-63.

n100 Id. at 564 n.6.

n101 Id.

n102 See, e.g., Friedman v. Rogers, 440 U.S. 1 (1979) (use of tradename in the practice of optometry is a form of commercial expression that has no intrinsic meaning and carries significant possibility of deception); In re Oldtowne Legal Clinic, 285 Md. 132, 400 A.2d 1111 (1979) (prohibits use of tradename by professional corporation organized for practicing law).

n103 447 U.S. at 564.

n104 Id. at 563-64. See also text accompanying notes 58-59 supra.

n105 447 U.S. at 564.

n106 Id.

n107 Id. at 556. For an interesting discussion of the Central Hudson text, see Comment, Advertising Restrictions on Health Care Professionals and Lawyers: The First Amendment Limitations, 50 UMKC L. Rev. 82 (1981), in which it is argued that the second inquiry (whether the government interest is substantial) is of no use in the application of the rule to advertising because it has been held that the government's interest in protecting the public is substantial, and the third inquiry (whether the regulation advances that interest), has already been answered by the Court's finding of no direct link between advertising and ethical standards for pharmacists (in Virginia Pharmacy) or lawyers (in Bates).

n108 Central Hudson Gas and Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 573 (1980) (Blackmun, J., concurring).

n109 102 S. Ct. 929 (1972).

n110 See text accompanying note 107 supra.

n111 102 S. Ct. at 937.

n112 Id.

n113 Id.

n114 Id.

n115 Id.

n116 Id. at 938.

n117 Id.

n118 Id. at 937.

n119 Id.

n120 Id. at 938.

n121 Id.

n122 Id.

n123 Id.

n124 Id. at 939.

n125 Id.

n126 See note 3 supra.

n127 102 S. Ct. at 938.

n128 Id.

n129 Id. at 939.

n130 Id.

n131 Id.

n132 Id. at 938.

n133 Id.

n134 Id. at 939.

n135 As one commentator has said:

The Court seemed to say that R.M.J. could have been disciplined, for exactly what he did, on exactly the rules in question, had Missouri found that his ads were in fact misleading, or if it had uttered some plausible statement of reasons for prohibiting, as inherently misleading, the sort of promotion involved.

Lumbard, Court Fails to Bite the Bullet on Lawyer Advertising, Legal Times of Wash., Feb. 22, 1982, at 14, col. 2. See also Note, Lawyer Advertising in Kansas: Expanding Marketing of Legal Services, 21 Washburn. L.J. 626, 644 (1982) (absence of lower court reasoning meant Court could only follow Bates and reverse).

n136 See Franck, Lawyer Advertising After the R -- M. J -- Case, Prac. Law., April 15, 1982, at 53.

n137 102 S. Ct. at 939.

n138 Id.

n139 See text accompanying note 114 supra.

n140 102 S. Ct. at 938.

n141 Id.

n142 Id. at 939.

n143 Id.

n144 Id. at 938 n.16.

n145 Id.

n146 Id. at 939.

n147 See text accompanying note 142 supra.

n148 See text accompanying note 143 supra.

n149 See text accompanying notes 80-90 supra.

n150 See text accompanying notes 91-107 supra.

n151 See text accompanying note 145 supra.

n152 For example, the definition of "misleading" or "deceptive" advertising is still not completely clear. The R.M.J. decision will, however, give courts a better idea of how to determine whether or not speech is deceptive through its characterization of advertising as "inherently deceptive," "found deceptive in the past," or "potentially deceptive." 102 S. Ct. at 937.

The proposed Model Rules of Professional Conduct, if followed by the states, would be helpful in deciding this issue:

Rule 7.1 Communications Concerning a Lawyer's Services

A lawyer shall not make any false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.1 (Final Draft 1982).

Copyright (c) 1997 The School of Law Texas Tech University

Texas Tech Law Review

1997

28 Tex. Tech L. Rev. 801

LENGTH: 17718 words

ARTICLE: PROFESSIONAL IMAGE AND LAWYER ADVERTISING

by Elizabeth D. Whitaker * and David S. Coale **

* Partner, Carrington, Coleman, Sloman & Blumenthal, L.L.P., Dallas, Texas. B.A. 1975, Wheaton College; J.D. 1980, Southern Methodist University.

** Associate, Carrington, Coleman, Sloman, & Blumenthal, L.L.P., Dallas, Texas. B.A. 1990, Harvard College; J.D. 1993, University of Texas. The authors were part of a team of attorneys that represented the State Bar of Texas in Texans Against Censorship v. State Bar of Texas, 888 F. Supp. 1328 (E.D. Tex. 1995), aff'd, 100 F.3d 953 (5th Cir. 1996), which involved a challenge to the constitutionality of the Texas Disciplinary Rules governing lawyer advertising. All opinions expressed in this article are the authors' alone, and in no way represent the opinion of the State Bar of Texas or any other party to the Texans Against Censorship litigation. The authors thank Lonny Morrison for his inspiration.

SUMMARY: ... Twenty years have passed since the Supreme Court struck down Arizona's prohibition of lawyer advertising in Bates v. State Bar of Arizona. ... As the governing test for commercial speech regulation, Fox provided the analytical framework for today's lawyer advertising cases. ... This concern was directed toward advertising generally in Bates, and toward the Dalkon Shield advertisement at issue in Zauderer. ... Bates also mentioned some other rationales for regulation advanced by the Arizona Bar: claims that attorney advertising is inherently misleading because all legal services are unique to the client; that advertising costs will create financial barriers to entering the legal profession while increasing the cost of legal services; and that advertising will encourage the use of standardized packages of services that will slight the needs of individual clients. ... Ohralik allowed a ban on the in-person solicitation of a prospective client by an attorney. ... In the context of commercial speech regulation, it is thus difficult to sustain a facial challenge based on the vagueness and overbreadth doctrines. ... This Article has analyzed the two recurrent questions of lawyer advertising regulation standards for solicitation and standards for claims of quality with an eye toward how the "image" rationale can be incorporated into existing law. ...

TEXT: [*801]

I. Introduction



Twenty years have passed since the Supreme Court struck down Arizona's prohibition of lawyer advertising in Bates v. State Bar of Arizona. <=2> n1 The legacy of Bates, in one word, was "growth": it created a multimillion dollar industry, <=3> n2 encouraged extensive regulatory programs by state bar associations, <=4> n3 and inspired a series of further Supreme Court

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opinions on lawyer advertising and related commercial speech issues. <=5> n4 The activity generated by Bates has in no way abated today, as advertising lawyers, regulators and the courts continue to build on Bates and its progeny. <=6> n5



The Supreme Court recently added a new issue to the mix. In its post-Bates cases, the Court identified a number of reasons why a bar association could regulate lawyer advertising. Foremost among them was the prevention of deception; other rationales included checking overreaching conduct by attorneys, the protection of privacy, and helping bar associations overcome the difficulty of monitoring ads to check their compliance with regulations. <=7> n6 Then, in the 1995 decision of Florida Bar v. Went For It, Inc., the Supreme Court affirmed a Florida rule barring the sending of letters to accident victims for thirty days after an accident. <=8> n7 This rule was based on the bar's demonstration that such letters were invasive, and through their invasiveness demeaned the image of the legal profession. <=9> n8



Florida Bar's justification of this regulation introduces a new element into the law of lawyer advertising. This article addresses ways to fit the "image" rationale for regulation into the existing law. It does so by focusing on two issues identified but not addressed in Bates proper standards for client solicitation and standards for claims about the quality of legal services and shows how the Court has analyzed these two issues since Bates. It then offers suggestions as to how the concept of image described in Florida Bar can help the analysis of these two issues.



The article concludes that Florida Bar is best read to say that harm to the profession's image may be considered when deciding whether a particular deceptive statement, invasion of privacy, or act of overreaching should be regulated. It also concludes, however, that image should not become an independent basis for regulation in its own right. So read, the image concept frees bar associations to make a powerful argument in favor of certain regulations, but it does not make the concept so strong as to smother advertisements that may seem mildly annoying but nevertheless convey valuable information.



The article also discusses issues that may arise from the procedural posture in which Florida Bar was presented. Unlike Bates and the Supreme Court's other post-Bates advertising cases, Florida Bar was a suit for declaratory judgment, rather than an appeal from a disciplinary proceed-

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ing. <=10> n9 This article analyzes ways in which the doctrines of ripeness, overbreadth and vagueness come into play in that type of suit.

II. The Law of Lawyer Advertising in 1997





This section describes the current law of lawyer advertising. It begins by providing a brief history of the Supreme Court's advertising cases since Bates. <=11> n10 It then gives a snapshot of the law developed by those cases as it stands today.

A. History





During the twentieth century, <=12> n11 bar associations did not allow attorney advertising until the 1977 watershed case of Bates v. State Bar of Arizona. <=13> n12 The advertisement at issue in Bates asked, "Do you need a lawyer?," and stated that the Bates & O'Steen legal clinic offered "legal services at very reasonable fees." <=14> n13 The advertisement went on to list the clinic's fees for various routine legal matters such as uncontested divorces and adoptions. <=15> n14 The Court began its First Amendment <=16> n15 analysis of the ad by characterizing it as commercial speech, <=17> n16 and then identified two issues that were not before it. It first noted "the peculiar problems associated with advertising claims relating to the quality of legal services," observed that no such issue was before it, and "le[ft] that issue for another day." <=18> n17 The Court next found that it did not need to "resolve the problems associated with in-person solicitation of clients at the hospital room or the accident site, or in any other situation that breeds undue influence by attorneys or their agents or 'runners.' " <=19> n18



The Bates Court saw the issue to be whether lawyers "may constitutionally advertise the prices at which certain routine services will be

[*804]





performed." <=20> n19 The court considered six interests advanced by the bar to justify a ban on such advertisement: (1) the adverse effect advertising could have on the image of the bar and the justice system, (2) the "inherently misleading" nature of advertising legal services, (3) the risk that advertising might "stir up litigation", (4) potential increases in the cost of legal services caused by passing on the costs of advertising to the client, (5) harm to the quality of legal services, and (6) difficulty in enforcing advertising rules. <=21> n20 As to each, the Court recognized the legitimacy of the harms about which the bar was concerned, but found that the connection between the clinic's ad and each of these harms was too tenuous to justify a ban. <=22> n21



A series of Supreme Court cases reexamined the two issues reserved in Bates. The Court first revisited Bates in a pair of cases that dealt with the solicitation of clients by attorneys, which was the first issue reserved in Bates. In the first case, In re Primus, the Court allowed an ACLU attorney to write letters offering representation to women who had been sterilized by a state program. <=23> n22 The Court found that such activity was part of the ACLU's protected political work, and was not coercive, misleading or deceptive. <=24> n23 In the second case, Ohralik v. Ohio State Bar Association, the Court upheld the discipline of an attorney who solicited a woman as a client while she was lying in traction in a hospital bed. <=25> n24 The Court found this conduct to be an overreaching abuse of the lawyer's training as an advocate. <=26> n25



In its next advertising case, In re R.M.J., the Court dealt with claims about the quality of legal services, which was the other issue reserved in Bates. <=27> n26 The R.M.J. Court analyzed three state bar rules: (1) a prohibition on lists of areas of practice using terms other than those provided by a rule; (2) a ban on lists of the courts and state bars to which a lawyer was admitted to practice; and (3) a ban on announcement cards to persons other than "lawyers, clients, former clients, personal friends, and relatives." <=28> n27 The Court found for the lawyer on all three claimed violations. <=29> n28 It saw the lawyer's list of practice areas and courts to which he was admitted as

[*805]





a nondeceptive statement about his practice. <=30> n29 The Court also noted, however, that a capitalized reference to membership in the U.S. Supreme Court's bar was in "bad taste" and could be regulated if surveys showed it was confusing to the public. <=31> n30 The Court also saw no reason to restrict the audience for the lawyer's mailings. <=32> n31 All three of the Court's holdings were animated, at least in part, by the absence of a record showing why the forbidden speech was harmful, or why measures short of a ban would not be just as effective. <=33> n32



The Court then turned to new issues in Zauderer v. Office of Disciplinary Counsel, in which a lawyer ran an ad with a picture of a Dalkon Shield and offered to handle Dalkon Shield injury claims on a contingent fee basis. <=34> n33 The Court found no justification for the bar's ban on illustrations, but agreed that the particular way in which the lawyer advertised his contingent fee was potentially deceptive. <=35> n34 The Court found that a bar could constitutionally require an ad about contingent fees to disclose the obligation to pay costs, and found that Zauderer's ad did not adequately explain a client's potential liability for costs if a suit did not succeed. <=36> n35



The Court revisited solicitation in Shapero v. Kentucky Bar Association, this time in the context of targeted direct mail. <=37> n36 The Court held that absent a showing that a particular mailing was deceptive, the "regulatory difficulties" and potential for overreaching were not present. Therefore, a blanket ban on direct mail could not be sustained. <=38> n37



Then, in Peel v. Attorney Registration & Disciplinary Commission, the Court revisited R.M.J.'s treatment of an attorney's claims about specialization and certification. <=39> n38 Peel's letterhead identified him as a "Certified Civil Trial Specialist by the National Board of Trial Advocacy," a legitimate national organization of trial lawyers. <=40> n39 A fractured Court reversed the discipline imposed on Peel by the bar, but for no one

[*806]





reason. <=41> n40 Five justices agreed that a ban was not justified, four saying that the letterhead was not deceptive, <=42> n41 and one saying that although the letterhead was potentially deceptive, an outright ban was not justified on the record before the Court. <=43> n42 On the other side, three justices voted to affirm the ban on the basis that the letterhead was "inherently likely to deceive," <=44> n43 and a fourth justice reasoned that while the letterhead was potentially deceptive, the burden should be on the lawyer to redesign his ad rather than place the burden on the bar to develop a new ad. <=45> n44



The most recent Supreme Court case about lawyer advertising is Florida Bar v. Went for It, Inc. <=46> n45 In Florida Bar, a Florida rule required lawyers to wait for thirty days after a person's accident before sending direct mail solicitations to them. <=47> n46 The Court held that the state of Florida had shown that lawyers caused real trauma to accident victims and their families by sending solicitation letters immediately after an accident. <=48> n47 The Court further agreed with the bar that these invasions of privacy damaged the reputation of the legal profession, and therefore, affirmed the ban. <=49> n48 The Court's analysis of the precise interests put forward by the Florida Bar, as well as its analysis of the sufficiency of the Bar's proof of harm, will be detailed later in this article.



Significantly, Florida Bar is the product of a different Court from the one that produced most post-Bates law. Justice O'Connor, dissenter in Zauderer, <=50> n49 Shapero, <=51> n50 and Peel, <=52> n51 wrote for the Florida Bar majority. She was joined by Justice Breyer, who replaced Justice Blackmun, the author of Bates and a consistent vote against advertising restrictions. <=53> n52 This new

[*807]





alignment of Justices may produce more affirmances of regulations in the future.

B. The Law Today





The Supreme Court has made clear that "[l]awyer advertising is in the category of constitutionally protected commercial speech." <=54> n53 Until shortly before Bates, such a finding would have been fatal to First Amendment protection, as the Court held that "the Constitution imposes no . . . restriction on government as respects purely commercial advertising." <=55> n54 In the term prior to Bates, however, the Court extended some protection to commercial speech in Virginia State Board of Pharmacists v. Virginia Citizens Consumer Council. <=56> n55 The Court reasoned that because such speech "is indispensable to the proper allocation of resources in a free enterprise system, it is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered." <=57> n56



Soon after Virginia State Board, the Court set forth a four-part test by which to measure restrictions on commercial speech in the case of Central Hudson Gas & Electric Corporation v. Public Service Commission. <=58> n57 As originally stated, the Central Hudson test provided that:

At the outset, we [1] must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, [2] we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must [3] determine whether the regulation directly advances the governmental interest asserted, and [4] whether it is not more extensive than necessary to serve that interest. <=59> n58





The Court blended the third and fourth parts of this test in Board of Trustees v. Fox. <=60> n59 In Fox, the Court elaborated that:

[*808]







What our decisions require is a "fit between the legislature's ends and the means chosen to accomplish those ends," a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is "in proportion to the interest served,". . . ; that employs not necessarily the least restrictive means but, as we have put it in the other contexts discussed above, a means narrowly tailored to achieve the desired objective. Within those bounds we leave it to governmental decisionmakers to judge what manner of regulation may best be employed. <=61> n60

The Court intended this modification to eliminate any suggestion that Central Hudson required regulators to choose the "least restrictive means" of regulating, thereby giving the political branches the "leeway they need" to regulate. <=62> n61



As the governing test for commercial speech regulation, Fox provided the analytical framework for today's lawyer advertising cases. <=63> n62 With this discussion of Fox as a background, this article will go on to explain its application in light of the precedents previously described. 1. Prong One: False or Proposing a Crime?



The first Central Hudson question asks whether the speech at issue receives any First Amendment protection at all. If commercial speech is either false or proposes illegal activity, it enjoys no constitutional protection and a state can ban it. <=64> n63 While it is possible to hypothesize some difficult

[*809]





cases, <=65> n64 or unusual definitions of falsity, <=66> n65 the application of this principle in the great run of cases is straightforward and uncontroversial. <=67> n66



This basic principle has been refined to apply with limited force to two other categories of commercial speech: "inherently misleading" and "potentially misleading" speech. According to the R.M.J. court, a model of "inherently misleading" speech is the in-person solicitation at issue in Ohralik. <=68> n67 Because the circumstances of such speech create a risk of deception, and because "the mode of communication poses a serious danger that lawyers will exploit any such susceptibility," <=69> n68 the speech can be banned or otherwise restricted as if it were overtly false. <=70> n69



On the other hand, "[s]tates may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive." <=71> n70 Numerous examples of potentially misleading speech appeared in Supreme Court cases, including the list of practice areas at issue in R.M.J., <=72> n71 the claims of specialization in Peel, <=73> n72 and the solicitation letter at issue in Shapero. <=74> n73 The Court has repeatedly stated that a ban is not the preferred remedy for the potential deceptive effect of such speech. Whenever possible, regulators should require nondeceptive disclosures to cure it. <=75> n74



The distinction between these two types of speech is grounded in the idea that the cure for misleading speech is presumed to be more speech, <=76> n75

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an idea solidly grounded in the enduring concept of the First Amendment as protector of an open and robust "marketplace of ideas." <=77> n76 Potentially misleading speech may mislead some people, but does not justify a ban because the marketplace can be trusted to minimize and eventually root out the deceptive effect of that speech, although some disclosures may be required to speed the process. <=78> n77 Inherently misleading speech, however, such as in-person solicitation of vulnerable accident victims, so interferes with the exchange of ideas that the marketplace cannot be trusted to mitigate the deceptive effect of such speech. <=79> n78



The first question Fox asked may thus be dispositive of many cases, much as the choice of the standard of review can be in equal protection analysis. <=80> n79 False advertising can be banned outright, along with a limited class of inherently misleading activity. However, potentially misleading advertisement cannot be banned.

2. Prong Two: Substantial Interest





A state must articulate a substantial interest served by its regulation of speech. <=81> n80 Unlike rational basis review in an equal protection case, courts will not make "suppositions" about a state's interest in a commercial speech case. <=82> n81 A state must advocate the precise interest upon which it seeks to justify a regulation. <=83> n82 This section will discuss the Court's treatment of different rationales in advertising cases.



It is important to remember that it is difficult to generalize about the force of a particular rationale, because even the most noble state interest

[*811]





will not save a regulation if its scope is too sweeping. <=84> n83 A state's interest in discouraging fraud and deception is well-recognized as substantial, however. <=85> n84 The real question in these cases is what other rationales will justify a regulation.



Ohralik recognized the state's interest in preventing "overreaching" conduct as strong enough to warrant a ban on in-person solicitation. <=86> n85 The precise definition of overreaching is not clear from Ohralik, and a precise definition may not be possible. <=87> n86 The facts of Ohralik and the Court's discussion of their obvious excess, however, clearly sketch the outlines of the overreaching problem. <=88> n87 Because "[m]ost laypersons are unfamiliar with the law, with how legal services normally are procured, and with typical arrangements between lawyer and client," most prospective clients begin discussions with a lawyer at a disadvantage. <=89> n88 In-person solicitation "strips from the consumer . . . the decision as to when, where, and how he will present himself to the marketplace," and leaves the prospective client at the mercy of "a professional trained in the art of persuasion." <=90> n89 As Ohralik described it, then, the core of overreaching conduct is the exploitation of the disparate bargaining power between an attorney and a prospective client. <=91> n90



Ohralik and subsequent cases have also recognized that the protection of potential clients' privacy is a substantial state interest that justifies regulation. <=92> n91 Despite recognition as an important interest, this rationale was not forceful enough to justify a ban on the Dalkon Shield advertisement involved in Zauderer <=93> n92 or the solicitation letters at issue in Shapero. <=94> n93 In Florida Bar, however, the Court stated the importance of protecting privacy several times and repeatedly emphasized the invasiveness of solicitation letters received soon after an accident. <=95> n94



Florida Bar's discussion of privacy, however, is in the context of a discussion about how invasions of privacy tarnish the public image of the bar. <=96> n95 Despite the importance of image concerns in discussions regarding

[*812]





lawyer advertising, <=97> n96 and despite evidence showing that excesses in advertising hurt the image of the legal profession, <=98> n97 the Court had not previously been overly receptive to image considerations as justifications for regulation. Ohralik noted the general significance of professional regulation; <=99> n98 however, the Court later said in Zauderer that it was unsure whether "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 . . . First Amendment rights." <=100> n99 Florida Bar's reaffirmance of the importance of public image is an important development in this law.



It is important to note that Florida Bar discusses the image of lawyers in the eyes of the public. Bates made clear that a historical distaste for advertising was not a permissible reason for regulation. <=101> n100 Zauderer also criticized restrictions of "advertising that some members of the bar might find beneath their dignity." <=102> n101 Scholarly commentary also has criticized the dislike of nonadvertising lawyers for advertisements as the product of an "ivory tower" firm culture removed from the type of practice that can benefit from advertising. <=103> n102 Florida Bar does not purport to turn back from that criticism. <=104> n103 The focal point of any inquiry into image must thus center on public perception, not the opinions of other lawyers. <=105> n104

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Another rationale discussed by the Court has been the concern that an advertisement-by- advertisement search for wrongful conduct is too taxing on the bar's enforcement machinery. The Court, while expressing sympathy for the burdens facing bar associations, <=106> n105 has not allowed a ban on speech based on this concern. Rather, it has recommended the adoption of filing rules to require attorneys to send copies of ads and letters to an enforcement authority, <=107> n106 and some states have adopted such requirements. <=108> n107



As mentioned earlier, Bates addressed other rationales for regulation, none of which the court found persuasive. <=109> n108 The first of these rationales was the concern that ads create litigation. This concern was directed toward advertising generally in Bates, <=110> n109 and toward the Dalkon Shield advertisement at issue in Zauderer. <=111> n110 The Court held that this concern fails to justify a ban on a type of ad because the state cannot know a priori whether the litigation that such an ad fosters is groundless or not. <=112> n111 Bates also mentioned some other rationales for regulation advanced by the Arizona Bar: claims that attorney advertising is inherently misleading because all legal services are unique to the client; that advertising costs will create financial barriers to entering the legal profession while increasing the cost of legal services; and that advertising will encourage the use of standardized packages of services that will slight the needs of individual clients. <=113> n112 The Court found all three rationales to be unpersuasive in the

[*814]





context of a complete ban on advertising and they have not surfaced in later cases. <=114> n113

3. Prongs Three and Four: The "Fit" of Regulation to Interest





Certain broad guidelines emerge from the Court's cases on the issue of "fit." Because a state can constitutionally ban actually deceptive or inherently misleading speech, a prohibition can properly be used to prevent such speech. <=115> n114 Outside of those categories, the preferred remedy for a perceived problem with commercial speech "in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation." <=116> n115 To be constitutional, a disclosure requirement need only bear a reasonable relation to the state's interest in preventing deception of consumers, and it does not matter if the requirement is over or under-inclusive, or if another tool exists to achieve the same end. <=117> n116



The standard for how much evidence suffices is set forth in several sets of cases. <=118> n117 Several cases found that the record contained no evidence supporting a particular restriction. For example, in Zauderer, the Court found the bar's ban on illustrations to be supported by arguments that "amount to little more than unsupported assertions." <=119> n118 The Court further held that "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' advertisements cannot be combated by any means short of a blanket ban." <=120> n119 Similarly, in R.M.J., the Court saw "no apparent danger of deception" from substituting the word "real estate" for "property" to describe a specialization and characterized the record in support of the restriction as "silent." <=121> n120



The Court's accounting cases have made similar criticisms of records. In Ibanez, the Court found that the "bare" record did not show any evidence that the public would be deceived by an accountant's use of the "CFP" designation, observing that the rule was supported entirely by the "hypothesizing" of regulators. <=122> n121 And in Edenfield v. Fane, the Court

[*815]





found that neither studies nor anecdotal evidence showed that in-person solicitation by CPAs posed a risk of fraud or overreaching. <=123> n122



Despite the Court's expressed distaste for "silent" records, decisions that have affirmed restrictions have done so based on surprisingly little evidence. In some cases, the only evidence is the Court's own conclusion about the facts of the case. In the fractured Peel opinions, five Justices agreed that an ad was potentially misleading based on three facts: the state court's confusion about a board's certification standards, the fact that the word "national" in the board's name implies governmental action, and the fact that part of a definition in Webster's Third New International Dictionary says that "certificate" implies governmental action. <=124> n123 In the same vein, Zauderer found it "self-evident" and "reasonable" that a lay person could confuse costs and fees. <=125> n124 Zauderer went on to observe that a state does not have to conduct a survey of the public before it may determine that an ad has a tendency to mislead, and said that a state can rely on regulators' reasonable observations in drafting rules. <=126> n125 In Ohralik, the Court, having found that Ohio's concern about the effects of in-person solicitation to be well-founded, nonetheless based its opinion solely on the specific facts of the case, its own observations, and an FTC report about direct sales that the Court did not say Ohio ever considered in drafting its rule. <=127> n126 And, in Florida Bar, the Court reaffirmed its power to use its own observations and social science literature search to evaluate advertising restrictions, citing as support a recent opinion that affirmed an election rule based on "history, consensus, and 'simple common sense.' " <=128> n127



Florida Bar also contains the Court's most thorough discussion of what constitutes an adequate record. The bar's study, which took over two years

[*816]





to complete, consisted of a tally of the number of solicitations sent, <=129> n128 a poll of persons who received solicitation letters, which revealed widespread dislike for such letters, <=130> n129 as well as an extensive collection of anecdotal evidence from individuals and commentators such as editorial writers. <=131> n130 The Court found that this record was "noteworthy for its breadth and detail." <=132> n131 The First Amendment did not "require that empirical data come to us accompanied by a surfeit of background information." <=133> n132 Specifically, a study's sample size, selection procedures, and actual survey forms are not required parts of the record in support of a particular rule. <=134> n133 "Anecdotal" evidence can suffice, although the court took care to note and distinguish several cases in which state bars failed to put forward any evidence in support of a particular rule. <=135> n134



The earlier opinion of In re R.M.J. also noted the importance of the drafting process used by the bar. In striking down a ban on mass mailings, it noted that "[t]here is no indication in the record of a failed effort" to use the less restrictive alternative of requiring the filing of all general mailings. <=136> n135 This focus on procedure is consistent with, and is in part based upon, the general focus of administrative law on the importance of a fair process, rather than the minutiae of the evidence before an agency. <=137> n136



The Court has also hinted that federalism concerns require some restraint and deference in the review of the evidence in support of an advertising restriction. In Shapero, a plurality decision offered some observations as to whether the use of large type faces could make an ad deceptive. <=138> n137 A dissent by Justices White and Stevens said such questions were best "left to the state courts in the first instance," <=139> n138 and a dissent

[*817]





by Justices O'Connor, Rehnquist and Scalia said that state decisions about what kinds of material were "potentially misleading" deserved deference. <=140> n139



The Court's lawyer advertising cases thus demonstrate a focus on the sufficiency of the record in support of a particular regulation in determining whether that regulation "fits" the identified problem. Occasionally, the Court will note facts on its own. "Unsupported assertions" and "hypothesizing" will not support a regulation, but an overwhelming amount of empirical material is not required to pass constitutional muster. Florida Bar offers a detailed example of what the Court considered to be a "noteworthy" effort by a state bar association to develop a strong record in support of a regulation.

III. Integrating Image Into the Analysis of Lawyer Advertising Rules





This part of the article focuses on the issues reserved in Bates, namely, the proper standards for solicitation and for claims about the quality of legal services, because these issues have pervaded the Supreme Court's post-Bates lawyer advertising opinions. This section offers guidance as to how the concepts of image can contribute to the creation and analysis of rules in those difficult areas. The article then analyzes the unique procedural posture by which Florida Bar came before the Court, and offers guidance for future cases involving similar preenforcement challenges to a regulatory system.

A. Solicitation





Since Bates, several cases have established rules about different ways of soliciting clients. Ohralik allowed a ban on the in-person solicitation of a prospective client by an attorney. <=141> n140 Shapero, however, allowed a lawyer to send a solicitation letter to a prospective client. <=142> n141 Florida Bar, on the other hand, allowed a bar to impose limits on when a lawyer could send solicitation letters. <=143> n142 Finally, Edenfield held that, absent proof of a risk of overreaching, telephone solicitation by a CPA could not be banned. <=144> n143

[*818]









The Court's cases have not addressed telephone solicitation by an attorney, although such bans have been enacted. <=145> n144 The constitutional issue about a ban on such calls is whether Ohralik would allow a ban, or whether Shapero, with support from Edenfeld, would prevent one. To illustrate the impact of the "image" rationale, this section will focus on how it affects the determination of whether such a ban is constitutional.



If a ban is justified because it prevents deception, it will most likely not be sustained. As discussed earlier, speech must be actually or inherently misleading to be banned. <=146> n145 The speech at issue in a telephone solicitation is not necessarily false; indeed, a phone call to solicit a client could well consist entirely of true statements. The telephone's potential for deception is not so certain that it would justify a ban. <=147> n146



The rationales of protecting privacy and preventing overreaching are more persuasive, yet not dispositive as currently defined. While it is easy to think of invasive or overreaching phone calls, the recipient of a lawyer's phone call can hang up the phone and end the call, just as the solicitation letter at issue in Shapero could be discarded. <=148> n147 This distinction weakens the analogy between a phone call and the in-person solicitation in Ohralik, and reduces the invasiveness and potential for overreaching of such a call. On the other hand, an invasion of privacy occurs when the phone rings and is answered, just as an invasion of privacy occurred in Florida Bar when a letter arrived and was opened. <=149> n148 And, as to overreaching, a skilled telemarketer can adapt his sales pitch to the listener's responses to keep a call from ending, which an author of printed words cannot do. <=150> n149 While there are good analogies to Shapero, then, they are not perfect and a court may not find them persuasive.



The "ease of enforcement" rationale is probably the most persuasive of the current rationales, because a phone call leaves no record, unlike the written words of a solicitation letter. <=151> n150 It is important to note, though, that the Supreme Court has not sustained a ban on speech based solely on the difficulty of enforcing a lesser regulation. While Ohralik mentioned enforcement as a reason to ban in-person solicitation, the Court addressed this rationale only after determining that in-person solicitation was injurious "more often than not." <=152> n151 The persuasive force of this rationale, then,

[*819]





is linked to the persuasiveness of the case that phone calls are deceptive, invasive or coercive. <=153> n152



As in Florida Bar, a discussion of the effect of phone solicitation on the image of the legal profession could have a substantial impact on the persuasiveness of the rationale of invasiveness. <=154> n153 Persons can be identified who have received phone calls from attorneys, and those persons can be asked what their opinions were of those lawyers and the profession they represent. Those answers, if unfavorable toward solicitation, could weigh heavily in favor of a ban.



This same pattern of analysis can be applied to virtually any mode of solicitation as a way of magnifying the rationale of protecting privacy. For example, a rule prohibiting the use of registered mail to send solicitation letters has been held unconstitutional because the court did not see a risk of overreaching or exploitation. <=155> n154 The court, citing Shapero's statement, noted that a letter "can readily be put in a drawer to be considered later, ignored, or discarded." <=156> n155 Chances are that recipients of such letters are angered at having to journey to the post office, worrying on the way that they have been sued or have received some other very significant piece of news, only to discover an advertisement awaiting them. Evidence that the public, because of such inconvenience and annoyance, thinks less of lawyers who use registered mail to send advertisement literature could tip the balance and lead to a different result in another challenge to a similar rule.



This framework for analysis also carries over to the issue of lawyer advertising on the Internet. <=157> n156 While this area of communication is still developing, <=158> n157 at least one recent episode points toward a place to use the "image" rationale. A law firm recently sent a mass advertisement through electronic mail to thousands of recipients, and the resulting outrage by the recipients resulted in thousands of "flame" e-mails sent to that firm in retaliation, eventually disabling the firm's e-mail system. <=159> n158 While the Internet may be too new to have clear communication guidelines, it is clear

[*820]





from this episode that its users can feel invaded by unwanted solicitations, creating a potential for a bar association to use Florida Bar in support of an Internet solicitation restriction.



In any context, when considering how much weight "image" considerations should receive in the overall balance of factors, it is important to recognize the important values it represents. <=160> n159 As Justice Frankfurter eloquently observed in a series of opinions, the authority of the judiciary, "possessed neither of purse nor sword ultimately rests on sustained public confidence in its moral sanction." <=161> n160 Confidence in the integrity of the legal profession is a key foundation of that sustained confidence. As one commentator noted: "When people lose confidence in lawyers, they lose confidence in the rule of law. This loss jeopardizes the justice system and threatens to loosen the glue that holds our society together." <=162> n161 Even a small sapping of the profession's image can thus have great consequences. <=163> n162



The very power of the concept of image, though, means that it must be bounded. <=164> n163 The Florida Bar dissent noted the First Amendment's traditional hostility to regulation of speech simply because it is annoying, or even offensive. <=165> n164 This concept is embodied in several well-known cases. <=166> n165 Allowing regulation, merely because speech hurts the image of attorneys, risks regulating speech that is valuable for its very attention-getting qualities. For example, Zauderer's picture of a Dalkon Shield,

[*821]





while perhaps unsettling, was probably that much more effective because it was noticed.



Florida Bar, though, suggests two limits on the use of the "image" rationale. First, there must be credible evidence showing that a particular technique of solicitation has an effect, and a significant one, on the image of the legal profession. <=167> n166 Ample Supreme Court authority says that the unfounded opinions of bar officials is not adequate proof to support a restriction on speech, and that some level of proof must be put forward in support of a rule. <=168> n167



Second, Florida Bar did not rest its affirmance of Florida's solicitation letter ban solely on the effect on the profession: it first identified a real injury suffered by the vulnerable recipients of the solicitation letters. <=169> n168 That first step is an important boundary on the power of the "image" rationale; indeed, it is debatable whether image, standing alone, could justify a restriction. <=170> n169 By requiring that a traditional basis for regulation first be identified, the power of the image concept can be checked by the court from becoming an end unto itself, and can be channeled onto injuries that are actually felt by members of the public.

B. Quality





The other question reserved by Bates was the problem of claims about the quality of legal services, noting that such claims could often be con- sidered deceptive. <=171> n170 Subsequent cases such as Peel <=172> n171 and R.M.J. <=173> n172 have agreed, as have commentators. <=174> n173



This potential for deception has inspired advertising rules that target claims about quality. <=175> n174 The Model Rules, for example, prohibit a lawyer from creating "unjustified expectations," implying that he or she has illegal influence, or making unsubstantiable comparisons about quality. <=176> n175 A

[*822]





classic example of this kind of claim was one lawyer's claim that he could help clients "when others cannot," for which he was disciplined by the bar. <=177> n176



These rules have been justified on the grounds of preventing deception. <=178> n177 Indeed, the Model Rules declare that several types of statements about quality are deemed false and deceptive. <=179> n178 Fraud and deception, however, are only part of the foundation for these rules, as they are clearly based in part on concerns about image. <=180> n179 For example, a lawyer might be telling the truth when he says he has influence with a corrupt tribunal. Yet, it would be so damaging to the image of the justice system to allow a corrupt attorney to profit from marketing his wrongdoing that such an ad cannot be countenanced. Similarly, a lawyer's claim that he "can get you a million dollars" is not only deceiving about the attorney's ability to prejudge a case, but also deceives about the way the justice system processes claims and by doing so devalues its image.



Recognizing that image is part of the foundation for these rules can help shed light on the recurring, thorny problem of specialization claims addressed by the Court in Peel and R.M.J. <=181> n180 Drafting rules to solve these problems has proven to be a puzzling task, which is likely to grow as specialization increases throughout the profession. <=182> n181



Deception about a particular lawyer's ability is certainly a valid reason for rules regarding specialization. In many jurisdictions, however, the deception runs even deeper. In a jurisdiction that has a formal certification program for specialties, a claim of specialization that is not based on that program undermines the value of that program by confusing the public. Similarly, a jurisdiction that does not have a certification program, instead reasoning that a lawyer is deemed competent to handle any legal problem, has that principle undercut by a claim of specialization. <=183> n182 A claim of specialization that is inconsistent with the state specialization policies and programs is not simply deceptive about that lawyer's ability, but under

[*823]





mines the image of the profession that the bar is trying to

[*824]





foster through its policy about specialization. <=184> n183



Admittedly, this use of the "image" rationale differs from its application in Florida Bar. Florida Bar focused on attorney conduct that was overtly offensive and clearly drew into question the integrity of the attorneys involved. <=185> n184 A claim of specialization is not inherently offensive, nor is it obviously dishonest. Yet, at bottom, the same principles are involved as in Florida Bar. The bar tries to foster an image of honesty; similarly, many bars try to promulgate certain standards about what it means to be a "specialist." In both Florida Bar and the specialization situation, the image the bar seeks to give the public is being undermined.



This use of image is bounded by the need for evidence showing that a particular regulation causes deception about specialization policies. While the needed investigation would be different from most empirical work done on the effect of lawyer advertising, <=186> n185 it could be done in a straightforward manner by asking the public what it knows about a bar association's specialization policies, and where it obtained that information. It is likely that advertising will play a role in the public's knowledge, as evidence shows that the public thinks lawyer advertising teaches about the law, <=187> n186 and it is well-known that media is a powerful teacher. <=188> n187



In sum, while the "image" rationale does not bear so heavily on rules about claims of quality as it does on rules for techniques of solicitation, it does help illuminate at least two areas of the law. First, it can help emphasize the deceptive effect of certain claims about lawyers' skill that undercut the credibility of the judicial system, such as claims of having unusual influence. Second, it can help justify regulatory programs that are motivated by a desire to educate the public. Undermining such a program, and perpetuating a professional image contrary to what the bar is trying to foster could be an important consideration in defending a rule, <=189> n188 particularly one about specialization. <=190> n189

C. Issues Raised By Pre-Enforcement Challenge





Florida Bar is the first post-Bates Supreme Court advertising case to arise as a preenforcement challenge to a rule's constitutionality rather than as a disciplinary proceeding against an attorney. <=191> n190 Two recent district court cases also involved facial challenges to sets of rules in Texas and Mississippi. <=192> n191 This type of challenge adds two new dimensions to litigation about lawyer advertising rules.

1. Ripeness





For a lawsuit to present a justiciable case or controversy, the suit must be ripe for decision, presenting "a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality . . . ." <=193> n192 The purpose of this doctrine is to ensure accurate and efficient decision making. <=194> n193 Requiring a "ripe" controversy insures that a court will have enough facts before it to make an accurate decision. <=195> n194 This avoids the squandering of scarce judicial resources on hypothetical cases that may never actually happen. <=196> n195



A preenforcement challenge raises ripeness issues in two ways. Not only has an ad not been placed that violates a rule, but the bar has not yet

[*825]





disciplined the offending lawyer. <=197> n196 Because of the risk that a court may unnecessarily decide a constitutional issue, <=198> n197 or decide it incorrectly in the absence of full development of the facts, it can be argued that the ripeness doctrine does not allow a challenge to the constitutionality of an advertising rule prior to a disciplinary proceeding based on that rule.



While not strictly an argument based on the ripeness doctrine, the Court has also noted a federalism concern about acting too quickly in an area where a state's grievance and judicial systems are acting. In Zauderer v. Office of Disciplinary Counsel, the Ohio bar argued that a lawyer waived his constitutional challenges to a regulation by not raising them earlier in a federal declaratory judgment action. <=199> n198 The Court stated, "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." <=200> n199 In addition to acting unnecessarily, restraint in issuing a pre-enforcement ruling respects the integrity of the state process for identifying unconstitutional rules. <=201> n200



Despite the theoretical appeal of these arguments, they have not yet been accepted as a reason to refuse hearing a pre-enforcement challenge to a rule's constitutionality. In fact, recent facial challenges to advertising rules in both Texas <=202> n201 and Mississippi <=203> n202 flatly rejected challenges to ripeness. Further, the fact that the Court addressed the merits of Florida Bar and Edenfeld hints at its view of these ripeness arguments, at least on the facts of those cases. <=204> n203



Even if the doctrine itself does not apply, the policies behind it can influence the arguments for and against the constitutionality of advertising

[*826]





rules. For example, in the Texas facial challenge, the court rejected a ripeness challenge as to the entire case. The court also rejected, however, an argument regarding the potential future operation of the state's advertisement filing system as too speculative for decision. <=205> n204 When litigating a facial challenge case, plaintiffs and bar associations alike should be mindful of this use of the policy arguments behind the ripeness doctrine, even if the doctrine itself is not squarely applicable.

2. Facial Challenge





A facial challenge to a law is a natural subject for a preenforcement suit. The two First Amendment doctrines that allow a challenge to a rule on its face are the doctrines of overbreadth and vagueness. The standard for such a facial challenge is demanding; in general, "a holding of facial invalidity expresses the conclusion that the statute could never be applied in a valid manner." <=206> n205



A facial challenge based on the overbreadth doctrine must show that the rule has a substantial overreach, not only as an absolute matter, but judged in relation to the statute's plainly legitimate sweep. <=207> n206 A rule should not be invalidated as facially overbroad where there are a "substantial number of situations to which it might validly be applied." <=208> n207



Even more troubling for a plaintiff is the real question of whether the overbreadth doctrine applies to commercial speech. In Bates v. State Bar of Arizona, the Court stated that commercial speakers are deemed to have enough knowledge about the market and their products to satisfy the requirements of a regulation as to their product. <=209> n208 Further, economic self-interest, the force that produces commercial speech, is considered hardy enough that it cannot be crushed by overbroad regulation. <=210> n209 This law, coupled with the demanding standard on the merits, makes such a challenge very difficult to sustain.



Similar difficulties confront a challenge based on the vagueness doctrine. The test for vagueness in regulatory prohibitions is whether "they are set out in terms that the ordinary person exercising ordinary

[*827]





common sense can sufficiently understand and comply with, without sacrifice to the public interest." <=211> n210 Vagueness in a hypothetical, peripheral application is not enough: the regulation must be "impermissibly vague in all of its applications." <=212> n211 In the context of a lawyer disciplinary rule, such a showing is particularly difficult, as lawyers are considered to be adept at statutory interpretation. <=213> n212



In the context of commercial speech regulation, it is thus difficult to sustain a facial challenge based on the vagueness and overbreadth doctrines. To sustain such an attack, a plaintiff almost has to show that the rules affect noncommercial speech. <=214> n213 With that likely strategy in mind, a bar association may wish to make explicit in its rules that they are not intended to reach such speech. For example, the Texas rules provide that they:

are intended to regulate communications made for the purposes of obtaining professional employment. They are not intended to affect other forms of speech by lawyers, such as political advertisements or political commentary, except insofar as a lawyer's effort to obtain employment is linked to a matter of current public debate. <=215> n214

Such a clarifying statement can work to minimize any suggestion that advertising rules are intended to sweep more broadly than commercial speech, and thereby avoid a facial challenge to the constitutionality of rules. <=216> n215

IV. Conclusion





The Supreme Court's recent Florida Bar opinion revived the idea, largely dormant since Bates, that the image of the legal profession can justify regulation of lawyer advertising. This Article has analyzed the two recurrent questions of lawyer advertising regulation standards for solicitation and standards for claims of quality with an eye toward how the "image" rationale can be incorporated into existing law. It concludes that the image rationale, properly developed with evidence, can be a powerful asset to bar associations in the context of solicitation rules, and can also help justify restrictions on claims of specialization. It also concludes that, while image should be considered in deciding whether a particular statement

[*828]





alleged to be deceptive, overreaching, or invasive of privacy should be regulated, it should not be an independent basis for regulation in its own right.



Florida Bar, a preenforcement challenge to the constitutionality of an advertising rule, also raises some questions about the doctrines of ripeness, overbreadth, and vagueness. The last two carry little weight in the context of commercial speech. The doctrine of ripeness, while potentially a powerful check on preenforcement challenges, is probably of the most use as a source of policy arguments.



At bottom, because the public's perception of the image of lawyers is a matter of ongoing concern, Florida Bar will encourage freer and more straightforward thinking about any regulation of the image of lawyers. For example, the case of In re Anis, a pre-Florida Bar case about the same restriction on solicitation, strains throughout to just talk about privacy and not talk about the image of a profession. <=217> n216 After Florida Bar, even if the insertion of image into the case law does not directly affect any results, it will contribute substantially to the discussion about advertising rules.



Finally, the most important lesson taught by Florida Bar is the importance of ongoing dialogue between the bar and the public. <=218> n217 The evidentiary record required to sustain a regulation on the basis of the image rationale can best be developed by a bar association that cares about the respect with which the public views its members. The very act of thinking about image will play an important role in helping to improve and maintain a positive, honest image.

FOOTNOTES:

n1 433 U.S. 350 (1977).

n2 See American Bar Ass'n Comm'n on Advertising, Lawyer Advertising at the Crossroads: Professional Policy Considerations 47-53 (1995) [hereinafter "1995 ABA Report"].

n3 See William E. Hornsby, Jr. & Kurt Schimmel, Regulating Lawyer Advertising; Public Images and the Irresistible Aristotelian Impulse, 9 Geo. J. Legal Ethics 325, 327-28 (1996).

n4 See infra notes 22-52 and accompanying text.

n5 See 1995 ABA Report, supra note 2, at 1 ("The [Bates] decision set off a debate within the legal profession that has continued unabated and unresolved for 17 years.").

n6 See infra notes 83-94 and accompanying text.

n7 115 S. Ct. 2371, 2381 (1995).

n8 See id. at 2376.

n9 00See id. at 2374.

n10 A number of well-written works provide more historical detail. Three good references are 1995 ABA Report, supra note 2, at 15-39; Louise L. Hill, Lawyer Advertising 57-82 (1993), and Mitchel L. Winick et al., Attorney Advertising on the Internet: From Arizona to Texas Regulating Speech on the Cyber-Frontier, 27 Tex. Tech. L. Rev. 1489, 1497-1527 (1996).

n11 See 1995 ABA Report, supra note 2, at 29-36; see also Gregory H. Bowers & Otis H. Stephens, Jr., Attorney Advertising and the First Amendment: The Development and Impact of a Constitutional Standard, 17 Mem. St. U. L. Rev. 221, 222-34 (1987) (tracing the regulation of attorney advertising from the English common law ban to the Bates decision).

n12 433 U.S. 350 (1977).

n13 Id. at 385.

n14 See id. at 356, 385.

n15 The Court also considered and rejected a Sherman Act antitrust challenge to the rules. See id. at 359-63.

n16 See id. at 365.

n17 Id. at 366 (emphasis omitted); see also id. at 383.

n18 Id. at 366.

n19 Id. at 367-68 (emphasis omitted).

n20 Id. at 368-79.

n21 Id.

n22 436 U.S. 412, 421 (1978).

n23 See id. at 431, 435-36, 439.

n24 436 U.S. 447, 454 (1978).

n25 See id. at 464-67. In the next term, the Court decided a case which upheld a Texas ban on the use of trade names by optometrists. See Friedman v. Rogers, 440 U.S. 1, 16, 19 (1979). While not directly addressing lawyer advertising, Friedman is cited in the area. See, e.g., Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (1985); In re R.M.J., 455 U.S. 191, 202 (1982).

n26 In re R.M.J., 455 U.S. at 200-01.

n27 Id. at 204.

n28 See id. at 206.

n29 See id. at 204-06.

n30 See id. at 206-07.

n31 See id. at 206.

n32 See id. at 206-07.

n33 471 U.S. 626, 630-31 (1985).

n34 See id. at 647-53. Soon after this decision, the Court granted certiorari to the Iowa Supreme Court in a case about a ban on television commercials, but later dismissed the writ. See Committee on Prof'l Ethics & Conduct v. Humphrey, 377 N.W.2d 643 (Iowa 1985). While it did not seem likely that the Court would overrule this part of Zauderer, at least three justices clearly thought about revisiting the issues raised by the use of visual images in television lawyer advertising. See Humphrey v. Committee on Prof'l Ethics & Conduct of the Iowa State Bar Ass'n, 475 U.S. 1114, 1114 (1986).

n35 See Zauderer, 471 U.S. at 650-53.

n36 486 U.S. 466 (1988).

n37 See id. at 475-80 (citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 457-58, 464-65, 466 (1978)).

n38 496 U.S. 91, 99 (1990).

n39 See id. at 95-96.

N40 See id. at 111.

n41 See id. at 93, 111.

n42 See id. at 111-17 (Marshall, J., concurring).

n43 Id. at 121 (O'Connor, J., dissenting).

n44 Id. at 118-19 (White, J., dissenting). In his dissent, Justice White summarized the various opinions. See id. Not long after Peel, the Court decided Edenfield, which disapproved of restrictions on the ability of CPAs to solicit clients in person. Edenfield v. Fane, 507 U.S. 761, 761 (1993). The holding at first glance seems inconsistent with Ohralik, but can be reconciled by reading it to turn on the sufficiency of the evidence presented in support of the restriction. See infra notes 119-52. That same term, the Court decided Ibanez, which struck down restrictions on the use of the designation "CFP." Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 149 (1994). Again, this case is better read not as a disapproval of the discussions about the regulation of claims of specialization in Peel, but rather as a case about the sufficiency of the record. See infra notes 116-41.

n45 115 S. Ct. 2371 (1995).

n46 See id. at 2374.

n47 See id. at 2377-79.

n48 See id. at 2377-78, 2380.

n49 Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 673 (1985).

n50 Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 480 (1988).

n51 Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 118 (1990).

n52 One observer of the Court says that Justice Breyer was the pivotal "swing" vote in this case. Linda Greenhouse, Telling the Court's Story: Justice and Journalism at the Supreme Court, 105 Yale L.J. 1537, 1547-48 (1996).

n53 Shapero, 486 U.S. at 472; see also Peel, 496 U.S. at 99-100 (holding that an attorney's claim to be a "certified trial specialist" was commercial speech); In re R.M.J., 455 U.S. 191, 204 n.17 (1982) (noting that an attorney's description of his services and qualifications was "commercial speech 'expression related solely to the economic interests of the speaker and its audience' " (citation omitted)).

n54 Valentine v. Chrestensen, 316 U.S. 52, 54 (1942).

n55 425 U.S. 748 (1976).

n56 Id. at 765; see 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1505 (1996).

n57 447 U.S. 557, 566 (1980).

n58 Id. (citations omitted).

n59 492 U.S. 469, 480 (1989).

n60 Id. (citations omitted).

n61 Id. at 479-81; see 1995 ABA Report, supra note 2, at 18.

n62 See, e.g., Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2380 (1995); Edenfield v. Fane, 507 U.S. 761, 767 (1993).

n63 See, e.g., Virginia Phar. Bd. v. Virginia Consumer Council, 425 U.S. 748, 771-72 (1976). It is important to note a debate about the value of false statements outside the context of commercial speech. See Laurence H. Tribe, American Constitutional Law 2.13 (2d ed. 1988). Compare New York Times Co. v. Sullivan, 376 U.S. 254, 279 n.19 (1964) ("Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about 'the clearer perception and livelier impression of truth, produced by its collision with error.' " (quoting John Stuart Mill, On Liberty 15 (Oxford: Blackwell, 1947)), with Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) ("[T]here is no constitutional value in false statements of fact."). The Court has not accepted the idea that protection for false statements can be justified in the commercial speech context. See id.

n64 For example, if an attorney boasts that his firm represents "XYZ Company" when in fact its representation was limited to a small matter two years before, is that boast a disciplinable falsehood, or simply puffery? See Hill, supra note 10, at 135-36; see also In re Charges Against 95-30, 550 N.W.2d 616, 617 (Minn. 1996) (declining to impose discipline for unclear use of the word "office" in advertisement).

n65 See Hill, supra note 10, at 135-36 ("[E]xactly what constitutes a false or misleading communication is a matter which will vary on a case-by-case and a jurisdiction-to-jurisdiction basis.").

n66 See, e.g., Oklahoma Bar Ass'n v. Leigh, 914 P.2d 661, 666 (Okl. 1996) (involving a case in which an attorney claimed on letterhead that he was a CPA, when he had in fact failed to pass the CPA exam).

n67 In re R.M.J., 455 U.S. 191, 202 (1982).

n68 Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 474 (1988).

n69 See In re R.M.J., 455 U.S. at 203 ("[W]hen the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely.").

n70 Id.

n71 Id. at 204.

n72 Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 95- 96 (1990).

n73 Shapero, 486 U.S. at 475-79.

n74 See, e.g., Peel, 496 U.S. at 101, 118, 119 (Marshall, J., concurring; White, J., dissenting; and O'Connor, J., Rehnquist, C.J., and Scalia, J., dissenting); In re R.M.J., 455 U.S. at 203; see also Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 344 (1986).

n75 See Bates v. State Bar of Ariz., 433 U.S. 350, 357 (1977) (quoting Virginia Pharm. Bd. v. Virginia Consumer Council, 425 U.S. 748, 770 (1976)); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 644-46, 649 (1985); see also 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1505 (1996) (discussing the importance of the free flow of non- misleading commercial speech).

n76 The essence of this view of the First Amendment was captured by Justice Holmes in Abrams v. United States: But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . . 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); see generally 1 Rodney A.Smolla, Smolla & Nimmer on Freedom of Speech 2:4, 2:14-20 (1996).

n77 See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 457 (1978).

n78 See id.

n79 See Tribe, supra note 63, 16-6, at 1000 ("When expressed as a standard for judicial review, strict scrutiny is, in Professor Gunther's formulation, 'strict' in theory and usually 'fatal' in fact."); see also Burson v. Freeman, 504 U.S. 191, 211 (1992) ("[I]t is the rare case in which we have held that a law survives strict scrutiny."). But see Romer v. Evans, 116 S. Ct. 1620, 1623 (1996) (striking down, under rational basis review, a Colorado law prohibiting the enactment of antidiscrimination laws favoring homosexuals).

n80 See Edenfield v. Fane, 507 U.S. 761, 767 (1993).

n81 See id.

n82 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2375 (1995).

n83 See generally Bates v. State Bar of Ariz., 433 U.S. at 350, 368-80 (1977).

n84 See, e.g., In re R.M.J., 455 U.S. 191, 200-02 (1982); Bates, 433 U.S. at 383.

n85 Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978).

n86 Cf. Kathleen Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1415, 1442-56 (1989) (discussing the difficulty of defining "coercion").

n87 See Ohralik, 436 U.S. at 464-66.

n88 Id. at 465 n.24.

n89 Id. at 464 n.23, 465.

n90 See id. at 464-65 n.24.

n91 See id. at 466; Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2375 (1995); Edenfield v. Fane, 507 U.S. 761, 770 (1993).

n92 Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 647-49 (1985).

n93 Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 475-79 (1988).

n94 See Florida Bar, 115 S. Ct. at 2375-77, 2379.

n95 See id. at 2379.

n96 00See, e.g., 1995 ABA Report, supra note 2, at i (noting the "public's image of the legal profession" as a reason for ABA concern about advertising practices).

n97 00See generally Robert Battey, Loosening the Glue: Lawyer Advertising, Solicitation, and Commercialism in 1995, 9 Geo. J. Legal Ethics 287 (1995) (providing a historical overview of the limitations on lawyer advertising); Mylene Brooks, Lawyer Advertising: Is There Really A Problem?, 15 Loy. L.A. Ent. L.J. 1 (1994) (providing a discussion of case law and policy arguments relevant to the issue of lawyer advertising).

n98 00See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460 (1978) ("The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been 'officers of the courts.' " (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975))); see also Edenfield v. Fane, 507 U.S. 761, 763 (1993) (recognizing substantial government interest in maintaining CPA independence and ensuring against conflicts of interest).

n99 00 Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 648 (1985).

n100 Bates v. State Bar of Ariz., 433 U.S. 350, 368-73 (1977).

n101 Zauderer, 471 U.S. at 648.

n102 See Geoffrey Hazard, et al., Why Lawyers Should be Allowed to Advertise: A Market Analysis of Legal Services, 58 N.Y.U. L. Rev. 1084 (1983). It is interesting to note Akhil Amar's contention that the Fourteenth Amendment changed the focal point of free speech protection from "checking" the central government to protecting minority views. See Akhil Reed Amar, The Case of the Missing Amendments, R.A.V. v. City of St. Paul, 106 Harv. L. Rev. 124, 151-55 (1992). This perspective on the interplay of the First and Fourteenth Amendments adds to the persuasive quality of the "ivory tower" argument set forth in the text.

n103 See Florida Bar, 115 S. Ct. at 2375 ("It is now well established that lawyer advertising is commercial speech and, as such, is accorded a measure of First Amendment protection.").

n104 See id. at 2376 (finding as substantial the Florida State Bar's interest in preventing attorneys from engaging in conduct that "is universally regarded as deplorable and beneath common decency" based on public perception).

n105 See Bates v. State Bar of Ariz., 433 U.S. 350, 379 (1977). But cf. Zauderer, 471 U.S. at 645-46 (stating that "assessment of the validity of legal advice and information contained in attorney advertising is not necessarily a matter of great complexity").

n106 See, e.g., Shapero v. Ky. Bar Ass'n, 486 U.S. 466, 478 (1988); In re R.M.J., 455 U.S. 191, 206 (1982). See generally Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 571 n.13 (1980) (stating that "a system of previewing advertising campaigns" could be a permissible commercial speech regulation).

n107 See Hornsby & Schimmel, supra note 3, at 327. A potential future constitutional challenge to such a requirement is that it could create the kind of de facto censorship board struck down by the Supreme Court in Bantam Books v. Sullivan, 372 U.S. 58, 69 (1963). Such a challenge would require a fairly substantial operational record to be ripe, see infra note 191 and accompanying text, and there is a real question whether the prior restraint doctrine upon which Bantam Books was based has force in the commercial speech context. See Central Hudson, 447 U.S. at 571 n.13 ("We have observed that commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply to it."). To date, however, the only such challenge brought as a preenforcement facial challenge has been rejected. See Texans Against Censorship, Inc. v. State Bar of Tex., 888 F. Supp. 1328, 1363-68 (E.D. Tex. 1995).

n108 See Bates, 433 U.S. at 366-69.

n109 See id. at 375.

n110 Zauderer, 471 U.S. at 642-43.

n111 See id.; Bates, 433 U.S. at 375-76. But cf. Zauderer, 471 U.S. at 645 n.12 (noting that ads designed to stir up nuisance suits may be forbidden because they propose an "illegal transaction").

n112 See Bates, 433 U.S. at 372-75, 378-79.

n113 See id.

n114 See supra note 63 and accompanying text.

n115 In re R.M.J., 455 U.S. 191, 203 (1982).

n116 See Zauderer, 471 U.S. at 651 & n.14. There must, however, be an identifiable connection to the asserted interest. See City of Cincinnati v. Discovery Network Inc., 507 U.S. 410, 424-25 (1993).

n117 See, e.g., Zauderer, 471 U.S. at 648-49; In re R.M.J., 455 U.S. at 205-06; Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 142 (1994); Edenfield v. Fane, 507 U.S. 761, 767 (1993).

n118 Zauderer, 471 U.S. at 648.

n119 Id. at 648-49.

n120 In re R.M.J., 455 U.S. at 205-06.

n121 See Ibanez, 512 U.S. at 146.

n122 507 U.S. 761, 771 (1993). Similarly, the Court recently reversed a ban on liquor ads because no evidence linked the ban to the asserted goal of decreasing liquor consumption. See 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1509 (1996).

n123 See Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 112-13, 118 (1990) (Marshall, J., concurring; White, J., concurring; and O'Connor, J., Rehnquist, C.J., & Scalia, J., dissenting).

n124 See Zauderer, 471 U.S. at 652-53.

n125 See id. (quoting FTC v. Colgate-Palmolive Co., 380 U.S. 374, 391-92 (1965)).

n126 Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-65 (1978).

n127 Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2378 (1995) (citing Burson v. Freeman, 504 U.S. 191, 211 (1992)). An articulate Fifth Circuit opinion characterized the judicial power to make its own observations as the ability to consider "legislative" facts as well as "adjudicative" facts in constitutional cases. Dunagin v. City of Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983). The opinion noted that legislative facts are not "specifically related to this one case or controversy," but are "question[s] of social factors and happenings which may submit to some partial empirical solution but is likely to remain subject to opinion and reasoning." Id. Such reasoning, observed the Fifth Circuit, was historically "the responsibility of legislators and judges, assisted by scholars as well as social scientists." Id. (citing several cases, including Brown v. Board of Education, 347 U.S. 483, 494 n.11 (1954)).

n128 Over 700,000 solicitations were sent during that period, 40% of which went to accident victims or their survivors. See Florida Bar, 115 S. Ct. at 2377.

n129 For example, 45% of the recipients surveyed believed that direct-mail solicitation was "designed to take advantage of gullible or unstable people," 24% said it "made you angry" and 27% said that "their regard for the legal profession and for the judicial process as a whole was 'lower' as a result of receiving the direct mail." Id.

n130 See id.

n131 Id.

n132 Id. at 2378.

n133 See id.

n134 See id.; see also Moore v. Morales, 63 F.3d 358, 362-63 (5th Cir. 1995) (holding that Florida Bar "does not require an overwhelming record," and affirming a 30-day ban based on a number of citizen complaints coupled with expert testimony about the harms of immediate post accident solicitation), cert. denied, 116 S. Ct. 917 (1996).

n135 455 U.S. 191, 203 (1982); see also Friedman v. Rogers, 440 U.S. 1, 13-15(1979)(finding Texas' interest in regulating the use of trade names by optometrists to be "well demonstrated" on the basis of a single Texas Supreme Court opinion providng anecdotal evidence of past abuses of trade names).

n136 See generally 2 Charles H. Koch, Jr., Administrative Law and Practice 83-154 (1985) (explaining the various standards courts use to review the work of administrative agencies).

n137 Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 478-80 (1988).

n138 Id. at 480.

n139 See id. at 481, 486.

n140 Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 468 (1978).

n141 See Shapero, 486 U.S. at 470-72.

n142 See Florida Bar, 115 S. Ct. at 2381.

n143 Edenfield v. Fane, 507 U.S. 761, 762 (1993).

n144 See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering 7.3:101, at 93 (1994).

n145 See supra note 63 and accompanying text.

n146 See Texans Against Censorship, Inc. v. State Bar of Tex., 888 F. Supp. 1328, 1352 (E.D. Tex. 1995).

n147 See Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 476 (1988).

n148 Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2379 (1995).

n149 See Texans Against Censorship, 888 F. Supp. at 1353.

n150 See id. at 1354.

n151 See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 466 (1978).

n152 A ban on phone solicitation was recently affirmed based on the combined effect of "difficulties inherent in regulating telephone communications, and the potential for overreaching and fraud by lawyers during such communications." Texans Against Censorship, 888 F. Supp. at 1354.

n153 See Florida Bar, 115 S. Ct. at 2379-81.

n154 Texans Against Censorship, 888 F. Supp. at 1362.

n155 Id.

n156 See generally Winick et al., supra note 10, at 1500 (discussing regulation of lawyer advertising on the Internet); Brian G. Gilpin, Note, Attorney Advertising and Solicitation on the Internet: Complying with Ethics Regulations and Netiquette, 13 J. Marshall J. Computer & Info. L. 697, 699 (1995) (providing a discussion of attorney advertising and solicitation on the Internet).

n157 See generally Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L.J. 1805, 1807 (1995) (discussing what the likely information networks will become and some of the social consequences of these changes).

n158 See G. Burgess Allison, The Lawyer's Guide to the Internet 40-42 (1996).

n159 Commentators have questioned whether attorneys can meaningfully be distinguished from other professions. See Marc David Lawlor, Note, Ivory Tower Paternalism and Lawyer Advertising: The Case of Florida Bar v. Went For It, Inc., 40 St. Louis L.J. 895, 925 (1996); see also Evan Levy, Note, Edenfield v. Fane: In- Person Solicitation by Professionals Revisited What Makes Lawyers Different? 58 Alb. L. Rev. 261, 282-83, 297-98 (1994) (criticizing the greater protection given solicitation by CPAs than by lawyers); Bernadette Miragliotta, First Amendment: The Special Treatment of Legal Advertising, 1990 Ann. Surv. Am. L. 597, 632 (1992) (advocating "the recognition of legal services as a market commodity and the removal of any distinctions between legal advertising and other forms of commercial speech"). This issue, while not fully resolved in this article, is best left with the observation that, while other forms of commercial speech, such as the advertisements of physicians and accountants, are somewhat analogous to attorney speech, the significance to society of the justice system justifies distinguishing attorney speech from the great run of commercial speech.

n160 Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting).

n161 Battey, supra note 97, at 311-12 (quoting Lynne Liberato, Small Examples, Great Truths, 31 Hous. Law. 6, 6 (1993)).

n162 See generally Ronald K. L. Collins & David M. Skover, Commerce & Communication, 71 Tex. L. Rev. 697 (1993) (discussing the potential for distortions of fact to feed on themselves in the media).

n163 See Todd Mitchell, Note, Privacy and Popularity: The Supreme Court Attempts to Polish the Public Image of the Legal Profession in Florida Bar v. Went for It, Inc., 74 N.C. L. Rev. 1681, 1716-18 (1996).

n164 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2383 (1995) (Kennedy, J., dissenting).

n165 See, e.g., Texas v. Johnson, 491 U.S. 347, 347 (1989) (overturning criminal conviction based on the burning of a United States flag); Cohen v. California, 403 U.S. 15, 22-26 (1971) (overturning criminal conviction based on the wearing of a jacket that said "Fuck the Draft").

n166 See supra notes 116-41 and accompanying text; cf. Moore v. Morales, 63 F.3d at 363 n.6 (remanding a ban on post-accident solicitation by chiropractors because, although the bar had proven its case as to a ban on post accident solicitation by lawyers, it had introduced no evidence justifying a ban on solicitation by chiropractors).

n167 See supra text accompanying notes 119-22.

n168 See Florida Bar, 115 S. Ct. at 2380.

n169 See Bates v. State Bar of Ariz., 433 U.S. 350, 368-72 (1977); Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60, 76 (1983).

n170 See Bates, 433 U.S. at 383-84.

n171 Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91 (1990).

n172 In re R.M.J., 455 U.S. 191 (1982).

n173 See, e.g., Hazard & Hodes, supra note 144, 7.1:401, at 866.

n174 See, e.g., Model Rules of Professional Conduct Rule 7.1(b) (1983).

n175 Id. Model Rule 7.1(b) provides: A communication is false or misleading if it: . . . (b) is likely to create an unjustified expectation about results the lawyer can achieve or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or (c) compares the lawyer's services with other lawyers services unless the comparison can be factually substantiated.

n176 D.C. Bar Comm. on Legal Ethics Op. 249, printed in 10 Lawyers Manual of Professional Conduct 307 (1994).

n177 See Hazard & Hodes, supra note 144, 7.1:103, at 860.

n178 See Model Rules of Professional Conduct Rule 7.1(b) (1983).

n179 For instance, some states have rules prohibiting "undignified" advertising. See id. Rule 7.2 cmt.

n180 See also Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 146-49 (1994) (discussing the propriety of Ibanez's use of "CPA" and "CFP" designations).

n181 See Nathan Aaron Rosen, Lawyer Specialization 1-6 (1990); Hazard & Hodes, supra note 144, 7.4:101, at 93.

n182 See Rosen, supra note 181, at 5-6.

n183 See id. at 5.

n184 See Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2378 (1995).

n185 Cf. Hornsby & Schimmel, supra note 3, at 327-28 (discussing and summarizing current work on whether lawyer advertising produces "favorable" or "unfavorable" images of the legal profession in the minds of the public).

n186 Tom L. Lee, Lawyer Advertising: Consumer Attitudes, Response Patterns and Motivation Factors 85-92 (1985).

n187 See id. at 5. You are not, after all, offering laundry detergent, breakfast cereal or other consumer goods to a frenzied, price-conscious public . . . . You must remember always the absolute persuasive power of the mass communication media, and recognize that a large segment of the public will manifest blind faith in your advertising messages, simply because of the method and medium of communication. Id.

n188 Conversely, a confusing disclosure requirement could also undermine such a program and could be used as a basis for challenging a rule. See 1995 ABA Report, supra note 2, at 111.

n189 Constitutional limits do exist on how strongly the government can speak, which are of muted force in the commercial speech context. See generally Mark G. Yudof, When Government Speaks (1983).

n190 See Edenfield v. Fane, 507 U.S. 761, 771 (1993) (considering a facial preenforcement challenge to solicitation rule by an accountant).

n191 See Texans Against Censorship, Inc. v. State Bar of Tex., 888 F. Supp. 1328, 1337-38 (E.D. Tex. 1995); Schwartz v. Welch, 890 F. Supp. 565, 568 (S.D. Miss. 1995).

n192 Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 506 (1972) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)); see Laurence H. Tribe, American Constitutional Law 3-10, at 77 (2d ed. 1988); 13A Charles A. Wright et al., Federal Practice & Procedure 3532.1 (2d ed. 1984).

n193 See Abbott Lab. v. Gardner, 387 U.S. 136, 148 (1967) (holding that the "basic rationale [of ripeness] is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements").

n194 See, e.g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 146- 47 (1974) (citing Communist Party v. SACB, 367 U.S. 1, 72 (1961)).

n195 See American Fidelity & Cas. Co. v. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., 280 F.2d 453, 461 (5th Cir. 1960) ("But it is not the function of a United States District Court to sit in judgment on these nice and intriguing questions which today may readily be imagined, but may never in fact come to pass."). See Cass R. Sunstein, Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996).

n196 See Tribe, supra note 63, 3-9, at 75 (calling such a preenforcement case "doubly contingent"); see also Alcan Aluminum Ltd. v. Dep't of Or., 724 F.2d 1294, 1295 n.1 (7th Cir. 1984) ("This concern with the contingency of future events is at the core of the ripeness doctrine.").

n197 The Supreme Court held that "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." See Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944). Specifically, if the constitutionality of a law is at issue in a case, "it is a cardinal principle that th[e] Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Ashwander v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring); see Tribe, supra note 63, 3-8, at 71-72.

n198 Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 n.8 (1985).

n199 Id. (citing Younger v. Harris, 401 U.S. 37 (1971)).

n200 See generally Laird v. Tatum, 408 U.S. 1, 15 (1972) (warning against making federal courts "virtually continuing monitors of the wisdom and soundness" of the acts of other governmental branches).

n201 See Texans Against Censorship, Inc. v. State Bar of Tex., 888 F. Supp. 1328, 1338 (E.D. Tex. 1995).

n202 See Schwartz v. Welch, 890 F. Supp. 565, 567-69 (S.D. Miss. 1995).

n203 See id.

n204 See Texans Against Censorship, 888 F. Supp. at 1368.

n205 New York State Ass'n of Realtors, Inc. v. Shaffer, 27 F.3d 834, 839 (2d Cir. 1994) (emphasis in original) (quoting Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 797-98 (1984)).

n206 Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

n207 Howell v. State Bar of Tex., 843 F.2d 205, 208 (5th Cir. 1988) (quoting Parker v. Levy, 417 U.S. 733, 760 (1974)).

n208 433 U.S. 350, 380-81 (1977).

n209 See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564 n.6 (1980); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 462 n.20 (1978); Bates v. State Bar of Ariz., 433 U.S. 350, 383 (1977).

n210 Howell, 843 F.2d at 208 (quoting United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579 (1973)).

n211 Id.

n212 See id.

n213 See, e.g., Texans Against Censorship, Inc. v. State Bar of Tex., 888 F. Supp. 1328, 1341 (E.D. Tex. 1985).

n214 Tex. Disciplinary R. Prof. Conduct 7.02 cmt. 1.

n215 See Texans Against Censorship, 888 F. Supp. at 1343.

n216 In re Anis, 599 A.2d 1265 (N.J. 1992); see also In re Charges Against 95-30, 550 N.W.2d 616, 617 (Minn. 1996) ("Simply because free speech allows us to make fools of ourselves is no reason we should avail ourselves of the opportunity. For then, sadly, it is the whole profession that suffers." (quoting In re Discipline of Kotts, 364 N.W.2d 400, 407 (Minn. 1985) (Simonett, J., concurring specially))).

n217 See generally Roberta Cooper Ramo, Defending American Democracy, A.B.A. J., Sept. 1995, at 8 (inviting a dialogue with the public during her tenure as ABA president).

Copyright (c) Tulane University 1991.

Tulane Law Review

February, 1991

65 Tul. L. Rev. 687

LENGTH: 5339 words

RECENT DEVELOPMENTS: PEEL V. ATTORNEY REGISTRATION & DISCIPLINARY COMMISSION: ALLOWING CLAIMS OF CERTIFICATION IN LAWYER ADVERTISING

W. THIER

SUMMARY: ... In 1983, he changed his professional letterhead to reflect the certification. ... Peel asserted that his use of the certification on the letterhead was protected as commercial speech under the first amendment of the United States Constitution. ... First, the Court found that the advertisement was not actually misleading. ... Under the first amendment, states are limited to "particularized restriction[s]" on commercial speech that would "directly advance" a substantial state interest. ... In the noted case, the Court again applied the Central Hudson test to attorney advertising, this time in reference to claims of certification. ... Finally, the Court concluded that a blanket ban was broader than necessary to prevent potentially misleading advertising; the state interest could be protected by "less restrictive regulation of commercial speech." ... Thus, in the Court's view, because the "letterhead was neither actually nor inherently misleading," a blanket ban by the state on claims of certification by attorneys is unconstitutional under the first amendment. ... Not only did the Court accept the constitutionality of inferences about the quality of the attorney created by truthful and verifiable claims of certification, but also approved of and encouraged the use of such claims. ...

TEXT:

[*687] Gary E. Peel, an attorney practicing in Illinois, was certified as a civil trial specialist by the National Board of Trial Advocacy (NBTA) in 1981. <=2> n1 In 1983, he changed his professional letterhead to reflect the certification. <=3> n2 In 1987, the Administrator of the Attorney Registration and Disciplinary Commission of Illinois filed a complaint, alleging that Peel's use of the NBTA certification in the letterhead was in violation of Disciplinary Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. Rule 2-105(a)(3) prohibited lawyers from designating themselves as certified legal specialists. <=4> n3 The complaint also alleged that the use of the certification in the letterhead was misleading or deceptive, which was a violation of Disciplinary Rule 2-101(b). <=5> n4 Peel asserted that his use of the certification on the letterhead [*688] was protected as commercial speech under the first amendment of the United States Constitution. <=6> n5 The Commission rejected the claim and recommended censure for violation of Rule 2-105(a)(3). The Illinois Supreme Court accepted the recommendation, holding that the first amendment did not protect the use of the certification on the letterhead. The court found that the letterhead was misleading in three ways: it implied superiority in the quality of the attorney; the general public might believe that attorneys were licensed by the NBTA rather than the state; and the letterhead implied that the State of Illinois authorized the certification. <=7> n6 In a plurality decision, the United States Supreme Court reversed; and held that Rule 2-105(a)(3), as applied, violated the first amendment because the letterhead was not actually misleading and the "possibility of deception . . . [was] not sufficient to rebut the constitutional presumption favoring disclosure over concealment." <=8> n7 Peel v. Attorney Registration & Disciplinary Commission, 110 S. Ct. 2281 (1990).

The Supreme Court initially extended first amendment protection to "commercial speech" in 1976 in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. <=10> n8 The decision overruled a finding by the Court in 1941 that "purely commercial advertising" was not entitled to first amendment protection. <=11> n9 Although the Court had eroded the boundaries of unprotected commercial speech over the years, it had not squarely confronted the issue whether "commercial speech" was protected by the first amendment until Virginia State Board. <=12> n10

Virginia State Board held that a state may not "completely suppress dissemination of concededly truthful information about entirely lawful activity." <=13> n11 The commercial speech involved in Virginia State Board dealt with the advertising of prescription drug prices by pharmacists. The Court reasoned that the "free flow of commercial information is indispensable" because it [*689] enables individuals to make "intelligent and well informed" decisions about how to allocate their resources. <=14> n12 The Court rejected the state's arguments that advertising by professionals <=15> n13 would decrease professionalism, and noted that the state's desire to keep people uninformed for their own protection was "highly paternalistic." <=16> n14 The Court, however, stressed that the holding was limited to pharmacists. It stated that advertising by other professionals, such as doctors and lawyers, who provide services rather than goods, might be more misleading or deceptive and require different considerations. <=17> n15 The Court acknowledged that commercial speech requires less protection than other types of speech and, therefore, may be subject to a higher level of state regulation. <=18> n16 The Supreme Court suggested that regulations of advertising might include: time, place, and manner restrictions; prohibitions on the dissemination of untruthful speech; and warning or disclaimer requirements where the speech is deceptive or misleading. <=19> n17

A year after Virginia State Board, the Court decided Bates v. State Bar of Arizona, holding that Arizona's disciplinary rule, which prohibited all advertising by attorneys, violated the first amendment. <=20> n18 The narrow holding was that a state may not prohibit "the publication in a newspaper of . . . truthful advertisement[s] concerning the availability and terms of routine legal services." <=21> n19 The Court found that the traditional arguments against legal advertising were insufficient justifications for such prohibitions. <=22> n20 Coming to the same conclusion it reached in Virginia [*690] State Board, the Court forbade "blanket suppression" of advertising but reserved substantial leeway to the states to regulate in the area. <=23> n21 Areas subject to restraint included: "false, deceptive, or misleading" advertising; "advertising claims as to the quality of services"; "the time, place, and manner of advertising"; advertising of illegal transactions; and "advertising on the electronic broadcast media." <=24> n22 The Court also indicated that states may require warning or disclaimers "so as to assure that the consumer is not misled." <=25> n23 Recognizing that its decision left the limits of nondeceptive advertising undefined, the Court indicated that the bar was the appropriate arbiter of legal advertising. <=26> n24

After deciding a series of commercial speech cases, the Court in Central Hudson Gas & Electric Corp. v. Public Service Commission <=27> n25 established a four-part inquiry for determining whether a commercial expression warrants first amendment protection. <=28> n26 First, does the speech "concern lawful activity," and is it not misleading? Second, has the government asserted a substantial interest in restricting the speech? If the answers to both questions are positive, the third and fourth questions are "whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." <=29> n27 Under the Central Hudson test, state regulations on commercial speech would not survive if they were not narrowly tailored to further an explicit, acceptable goal. <=30> n28

The Supreme Court first applied the Central Hudson test to the issue of lawyer advertising in the case In re R.M.J. <=31> n29 The attorney had been reprimanded by the Missouri Supreme Court for running an advertisement that listed areas of practice which "deviat[ed] from the precise listing" set forth in the court's rules. <=32> n30 The United States Supreme Court held the rule invalid [*691] as applied. <=33> n31 First, the Court found that the advertisement was not actually misleading. Second, the Court found that the state interest in protecting consumers was not substantial enough to justify the limitations in its rules. Third, the Court indicated that even if the advertisement was potentially misleading, the rule was not narrowly tailored enough to curb the possible deception. <=34> n32 As in Bates, the Court "emphasize[d]" that states may "regulate advertising that is inherently misleading or that has proved to be misleading in practice." <=35> n33 However, states were barred from placing "absolute prohibition[s] on certain types of potentially misleading information" when more limited restrictions would prevent deception. <=36> n34

In Zauderer v. Office of Disciplinary Counsel, <=37> n35 the Supreme Court further extended the permissible boundaries of legal advertising under the first amendment. The Court held that states could require disclaimers on advertised contingent fee arrangements because the disclosure requirement was narrowly tailored to prevent possible deception. <=38> n36 The states, however, were not allowed to prohibit either nondeceptive, illustrated advertisements or advertisements that contained legal advice and solicited legal business. <=39> n37 The Court found that it was not misleading to give information and legal advice in advertisements. As long as the statements were truthful and verifiable, the Court reasoned that they could not be found to suggest that the attorney had any superior qualifications for handling specific types of suits. <=40> n38 An additional consideration was that since such statements were not actually misleading, the state's interest in protecting consumers was not sufficient to justify blanket prohibitions on solicitation in advertisements. <=41> n39 The Court concluded [*692] that the rules fashioned by the states should be narrowly tailored to "prevent attorneys from making non-verifiable claims regarding the quality of their services, [but should not] 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." <=42> n40

The most recent decision in the line of attorney advertising cases is Shapero v. Kentucky Bar Association. <=43> n41 The Shapero Court held that states may not prohibit attorneys from mailing truthful and nondeceptive solicitation letters to a targeted group. <=44> n42 Since the letters in Shapero contained truthful and verifiable information, the Court ruled the letters could not be misleading and, therefore, could not be prohibited. <=45> n43 Furthermore, even if targeted letters "present[] an increased risk of deception," a blanket ban was not justified because "far less restrictive and more precise means" were available to regulate possible deception. <=46> n44 Under the first amendment, states are limited to "particularized restriction[s]" on commercial speech that would "directly advance" a substantial state interest. <=47> n45

In the noted case, the Court again applied the Central Hudson test to attorney advertising, this time in reference to claims of certification. The Court considered whether Peel's use of the NBTA certification on his letterhead was misleading, and if not, "whether the potentially misleading character of such statements creates a state interest sufficiently substantial to justify a categorical ban on their use." <=48> n46 First, the Court found that the letterhead was not facially misleading because there was no evidence that anyone would be deceived. The facts therein were "true and verifiable" and there was no evidence that anyone "was actually misled or deceived by [the] stationery." <=49> n47 Second, the Court rejected the Illinois Supreme Court's reasons for finding the letterhead actually misleading. <=50> n48 Finally, the Court concluded [*693] that a blanket ban was broader than necessary to prevent potentially misleading advertising; the state interest could be protected by "less restrictive regulation of commercial speech." <=51> n49

While the Court reiterated that claims of quality in advertisements might be misleading and warrant suppression, it distinguished "between statements of opinion or quality and statements of objective facts that may support an inference of quality." <=52> n50 The Court acknowledged that a potential client might assume that an attorney certified in a particular area of practice by a reputable organization, such as the NBTA, would be more qualified than an uncertified attorney. Regardless of the implication of superiority, however, the claim of certification is simply a verifiable fact and not tantamount to a promise of success in handling legal matters. <=53> n51 In support of its finding that verifiable implications of quality are not misleading, the Court cited the fact that many states have "certification plans and expressly authorize references to specialists and certification, but there is no evidence that the consumers in these states . . . are misled." <=54> n52

The Court then rejected the notion that the use of both the NBTA certification and the state licenses on the letterhead implied either that NBTA licenses attorneys or that states issue NBTA certifications. The Justices assumed that "the consuming public" is sufficiently sophisticated to discern between private certification and state licensing. <=55> n53 The Court indicated that since licenses are generally issued by the government, while certificates are issued by private organizations, the public would not be misled by the designations. <=56> n54 Also, the Court found persuasive the fact that traditionally lawyers have been allowed to designate themselves as specialists in patent, trademark, and admiralty law, "despite the lack of any prerequisites for [the use of such designations]." <=57> n55 In the Court's view, since designations of those non-standardized specializations were not considered misleading, it would be illogical to find that claims of certification are [*694] misleading. <=58> n56

Furthermore, the Supreme Court found that the letterhead was no more potentially misleading than the statements at issue in Zauderer, In re R.M.J., or Shapero. <=59> n57 The Court stated that commercial speech doctrine favors disclosure of information even if it is potentially misleading. This principle is reinforced by the "presumption that members of a respected profession are unlikely to engage in practices that deceive their clients and potential clients." <=60> n58 Thus, in the Court's view, because the "letterhead was neither actually nor inherently misleading," a blanket ban by the state on claims of certification by attorneys is unconstitutional under the first amendment. <=61> n59

The Court found that the disclosure of information about certification and specialties "serves the public interest and encourages the development and utilization of meritorious certification programs for attorneys." <=62> n60 The Court, however, acknowledged that under its decision, attorneys could advertise certifications that are false or meaningless. As in the prior cases, the Court noted that states were free to fashion less restrictive regulations on commercial speech. <=63> n61 It suggested that states "consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty." <=64> n62

In holding that attorneys may constitutionally make claims of certification, the Court has once again extended the boundaries of lawyer advertising. In each of these cases, the Court has prohibited all categorical bans on attorney advertising in printed media. The commercial expressions at issue in those cases were all found not to be misleading. Although the Court ostensibly examines whether the state interest is sufficiently substantial to [*695] justify the ban, it is clear from these decisions that the Court will extend protection to nondeceptive expressions of commercial speech. Thus, the key to the breadth of protection extended to commercial speech lies in the definition of the term "misleading."

The attorney advertising cases have steadily limited that definition. Although Bates v. State Bar of Arizona was a landmark decision in terms of both the nascent commercial speech doctrine and attorney advertising, its holding was narrow and, therefore, it left the limits of nondeceptive commercial speech largely undefined. <=65> n63 The Court was careful, however, to denote "advertising claims as to the quality of services" as an area subject to restraint by the states. <=66> n64 In the case In re R.M.J., the Court went further by indicating that potentially misleading statements are not synonymous with misleading ones and, thus, could not be prohibited. <=67> n65 Zauderer v. Office of Disciplinary Counsel added two important limitations to the definition. First, truthful and verifiable statements of fact are inherently nondeceptive. Second, such statements do not become misleading even if they imply that an attorney has superior qualifications. <=68> n66 Shapero v. Kentucky Bar Association reinforced the Zauderer findings. <=69> n67

Peel elaborated on the relationship between truthful and verifiable statements and implications of the superior qualifications of the attorney. Not only did the Court accept the constitutionality of inferences about the quality of the attorney created by truthful and verifiable claims of certification, but also approved of and encouraged the use of such claims. <=70> n68 This significantly limits the extent to which states can restrict claims of quality in advertisements. After Peel, the scope of misleading commercial expression in the context of lawyer advertising seems to be limited to promises of success in handling legal matters. Whether promises of success encompass such things as endorsements or win/loss records in advertisements is unclear.

The Court went beyond the narrow first amendment concern with the amount of information to which the public is entitled, [*696] and engaged in a discussion about the actual content of that information. One, it assumed that the consuming public is capable of making intelligent decisions regarding legal services. <=71> n69 Two, it strongly suggested that attorneys' professional qualifications should be made available to consumers to enable them to make such decisions. Three, it encouraged the further development of professional qualifications for attorneys. <=72> n70 Four, it indicated what the nature of those qualifications should be.

The Court began its opinion with a discussion of the perceived need for certification programs for lawyers and the merits of the NBTA certification. <=73> n71 Later, it discussed the fact that disclosure of Peel's NBTA certification would spur the creation of such certification programs. <=74> n72 From these statements, the message of Peel seems to be that the Court would like to see the implementation of a more demanding set of standards for the legal profession. Furthermore, the Court appeared to be admonishing the bar for not having taken the initiative to establish stricter standards. In the 1973 Sonnett Memorial Lecture cited by the Court, <=75> n73 then-Chief Justice Burger urged the bar to develop a "system of specialist certification," and indicated that if it did not, the standards would be imposed from the outside. <=76> n74 In effect, the Peel decision bears out Burger's prediction. As a result of the Peel holding, private organizations will play an active role in fashioning the standards of the legal profession because the bar has failed to do so. <=77> n75

FOOTNOTES:

n1 NBTA, a private organization sponsored by a wide range of national lawyers' associations, was formed in 1977 to create a standardized and rigorous certification process for trial attorneys. The requirements for certification when Peel's case was argued before the Supreme Court included "specified experience as lead counsel in both jury and nonjury trials, participation in approved programs of continuing legal education, a demonstration of writing skills, and the successful completion of a day-long examination." Peel v. Attorney Registration & Disciplinary Comm'n, 110 S. Ct. 2281, 2284-85 (1990) (plurality opinion). For the current requirements, see id. at 2285 n.4. The standards were approved by judges, scholars, and practitioners. Id. at 2284.

n2 The letterhead appeared as follows:

"Gary E. Peel, Certified Civil Trial Specialist, By the National Board of Trial Advocacy, Licensed: Illinois, Missouri, Arizona."

Id. at 2285.

n3 Disciplinary Rule 2-105(a)(3) provided that "[a] lawyer . . . may specify or designate any area or field of law in which he . . . concentrates or limits his . . . practice. Except [designating himself as a patent, trademark, or admiralty lawyer], no lawyer may hold himself out as 'certified' or as a 'specialist'." ILL. CODE PROF. RESP. DR 2-105(a)(3) (1988).

n4 Disciplinary Rule 2-101(b) provided that a lawyer's public "communication shall contain all information necessary to make the communication not misleading and shall not contain any false or misleading statement or otherwise operate to deceive." ILL. CODE PROF. RESP. DR 2-101(b) (1988).

n5 "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." U.S. CONST. amend. I.

n6 Peel, 110 S. Ct. at 2286-87 (plurality opinion).

n7 Id. at 2293.

n8 425 U.S. 748 (1976). Commercial speech is defined as "speech which does 'no more than propose a commercial transaction.'" Id. at 762 (quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 385 (1973)).

n9 Valentine v. Chrestensen, 316 U.S. 52, 54-55 (1942).

n10 Virginia State Bd., 425 U.S. at 758-61.

n11 Id. at 773.

n12 Id. at 765.

n13 Id. at 768-70.

n14 Id. at 770.

n15 Id. at 773 n.25.

n16 Id. at 771 n.24.

n17 Id. at 771 & n.24.

n18 433 U.S. 350, 365 (1977). Historically, many countries banned advertising by lawyers. In the United States, lawyer advertising was allowed and accepted prior to the twentieth century -- in fact Abraham Lincoln advertised. The American Bar Association, however, formally banned legal advertising in its 1908 Canon of Ethics. L. ANDREWS, BIRTH OF A SALESMAN: LAWYER ADVERTISING AND SOLICITATION 1 (1980). By 1976, the only substantive change to have been made in the ABA rules was that lawyers could "communicate certain information about themselves and their practice (such as name, address, nature of practice and consultation fees) in legal directories, law lists, bar association directories, and the Yellow Pages." Id. at 2.

n19 Bates, 433 U.S. at 384.

n20 Id. at 379. The justifications cited for prohibitions on legal advertising included: Its adverse effects on professionalism, the administration of justice, and on the quality of legal service; advertising's inherently misleading nature, its undesirable economic effects, and the difficulties and burden of enforcement. Id. at 368-79.

n21 Id. at 383.

n22 Id. at 383-84.

n23 Id. at 384.

n24 Id.

n25 447 U.S. 557 (1980).

n26 Id. at 561-66.

n27 Id. at 566.

n28 Id. at 564.

n29 455 U.S. 191, 203 (1982).

n30 Id. at 205. In his advertisement, the attorney used terms different from those specified in the rule; for example, he used "real estate" practice rather than "property," and stated that "he was a member of the Bar of the Supreme Court of the United States." Id.

n31 Id. at 205-06.

n32 Id. The Court indicated that the claim of membership in the Supreme Court Bar was potentially but not actually misleading. Id.

n33 Id. at 207.

n34 Id. at 203.

n35 471 U.S. 626 (1985).

n36 Id. at 653 & n.15.

n37 Id. at 655-56. The advertisement in question contained an illustration of a Dalkon Shield Intrauterine Device; explained that the Shield had caused many health problems and that legal redress might be available to those injured. The advertisement also stated that the appellant's firm was handling many such suits, that readers could call for "free information," and that cases were on a contingent fee basis so that the client would pay no legal fees unless she recovered. Id. at 630-31.

n38 Id. at 639-40.

n39 Id. at 644.

n40 Id. at 640 n.9 (citation omitted); see also Bates v. State Bar of Ariz., 433 U.S. 350, 366 (1977).

n41 486 U.S. 466 (1988).

n42 Id. at 479.

n43 Id. at 473.

n44 Id. at 476.

n45 Id. at 479; see also Central Hudson, 447 U.S. at 566.

n46 Peel v. Attorney Registration & Disciplinary Comm'n, 110 S. Ct. 2281, 2287 (1990) (plurality opinion).

n47 Id. at 2288.

n48 Id. at 2290. For the reasoning of the Illinois Supreme Court, see supra note 6 and accompanying text.

n49 Id. at 2292 n.17.

n50 Id. at 2288.

n51 Id.

n52 Id. at 2288-89 (footnote omitted).

n53 Id. at 2289.

n54 Id. at 2289-90.

n55 Id. at 2289 n.12.

n56 Id. at 2289-90 & n.12. In addressing the issue of the "deceptive potential" of the letterhead, the Court emphasized that the boundaries of what is misleading are defined by the assumptions one makes about the "character of the consuming public." Id. at 2290 n.13. The plurality's finding that the letterhead was not actually misleading rested largely upon its view that the public is discerning. Id. Conversely, Justice O'Connor, in her dissent, found the letterhead misleading because she assumed that the "average consumer of legal services" would not be able to understand the distinction between state licensing and private certification. Id. at 2299 (O'Connor, J., dissenting).

n57 Id. at 2291 (plurality opinion).

n58 Id. at 2292.

n59 Id. at 2293.

n60 Id.

n61 Id. at 2292-93.

n62 Id.

n63 See supra notes 18-24 and accompanying text.

n64 Bates v. State Bar of Ariz., 433 U.S. 350, 383 (1977).

n65 See supra notes 29-34 and accompanying text.

n66 See supra notes 35-40 and accompanying text.

n67 See supra notes 41-45 and accompanying text.

n68 See supra notes 57-62 and accompanying text.

n69 See supra notes 53-56 and accompanying text.

n70 See supra notes 60-62 and accompanying text.

n71 Peel, 110 S. Ct. at 2284-85 (plurality opinion).

n72 Id. at 2293.

n73 Id. at 2284.

n74 Burger, The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice?, 42 FORDHAM L. REV. 227, 238-39 (1973). In his Bates opinion, Burger was against attorney advertising but urged the bar to find a way to convey needed information about attorneys to consumers. Bates v. State Bar of Ariz., 433 U.S. 350, 386-88 (1977) (Burger, J., concurring in part and dissenting in part).

n75 A September 1990 article indicated that states are in the process of re-evaluating their regulations on advertised claims of certification, and private organizations are developing certification programs. Regarding the certification issue, attorney Christel Marquardt, Chairman of the ABA Standing Committee on Specialization, opined: "one thing our committee should consider as a priority is to help the states develop criteria for certifying private agencies." Marcotte, Certified Lawyers, A.B.A. J., Sept. 1990, at 14, 14. Thus,it is clear that in the wake of Peel, the bar has lost its stranglehold on the legal profession and that professional standards will be imposed from without.