BRIDGEPORT ARTICLES. Number 4 Winter QUINNIPIAC 1993 COLLEGE ADVERTISING BY AMERICAN LAWYERS. By Douglas Whitman*

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1 BRIDGEPORT Volume 13 LAW REVIEW Number 4 Winter QUINNIPIAC 1993 COLLEGE ARTICLES ADVERTISING BY AMERICAN LAWYERS By Douglas Whitman* I. INTRODUCTION For many years in America, lawyers engaged in advertising. Even such illustrious trial attorneys as President Abraham Lincoln attempted to develop business through advertising.' Both * Professor, University of Kansas School of Business, B.A. Knox College; J.D., University of Missouri; M.BA., University of Kansas; L.L.M., University of Kansas at Kansas City. My thanks to the University of Kansas which provided me a sabbatical in order to study critical legal studies. 1. Lincoln ran the following advertisement in the August 10, 1838 Sangamo Journal: "STUART AND LINCOLN, Attorneys and Counsellors at Law, will practice, conjointly, in the Courts of this Judicial Circuit - Office No. 4 Hoffman's Row, upstairs, Springfield." L. B. ANDREWS, BIRTH OF A SALESMAN: LAWYER ADVERTISING AND SOLICITATION 1

2 BRIDGEPORT LAW REVIEW [Vol. 13:813 the practicing bar and the general public apparently at least tolerated the use of advertising by professionals. At the start of the 20th century, the attitude of the bar changed with respect to the manner in which a person ought to develop a law practice. The 1908 Canon of Ethics of the American Bar Association adopted a formal ban on lawyer advertising and solicitation. 2 From this point onward, lawyers refrained from developing business through such crude means as placing an advertisement in a newspaper or the Yellow Pages. Obviously business comes from somewhere so lawyers developed other techniques to generate income such as joining clubs, running for political office, writing articles, giving speeches and generally making contracts with anyone who could refer legal work. In the final analysis, getting business is everything in law. As an older lawyer, Fenton Hume, told this author before he graduated from law school: "Anyone can practice law. You can always hire someone who is smart if you are not smart enough. The hard part is getting the business." 3 (rev. ed. 1981). One could argue that Lincoln, "Honest Abe" as he was called, was a paragon of virtue. Therefore, if such an honest person saw nothing wrong in advertising, there must be nothing wrong with advertising. In recent years we have seen an attack on the forefathers of this nation. Some modern historians now find it possible to give us a more complete and accurate picture of historical figures than their predecessors. We have come to realize that our forefathers were not always perfect and were in fact not always highly ethical in their behavior. See, e.g., THE KANSAS CITY STAR, Jan. 4, 1993, at A-5, col. 1, which points out that George Washington owned slaves and Christopher Columbus slaughtered the Indians in the Caribbean. 2. L. B. ANDREWS, BIRTH OF A SALESMAN: LAWYER ADVERTISING AND SOLICITATION 1 (rev. ed. 1981). The 1908 Canon of Ethics stated: "The most worthy and effective advertisement possible... is the establishment of well merited reputation..." Id. Andrews suggests that the American Bar Association moved in this direction because most lawyers lived in small communities thus making advertising unnecessary. In other words, a person's reputation would spread, in a small town, through word of mouth. Of course, this overlooks the fact that even in 1908 many very large cities existed in America and the fact that our means of communication at that point in time were quite primitive. It is quite likely that the real reason for such a prohibition was to limit competition. 3. See, e.g., James E. Brill, Sine Qua Non, A.B.A. J., Feb. 1993, at 88. Brill observes that the one indispensable element to a successful law practice is a sufficient number of clients. Because it is so difficult and so important to develop business, those with thriving law practices doubtlessly fear additional competition. Years of reflection suggest to me the critical need to curry the favor of persons in control of large blocks of business, such as the chief counsel at a corporation-particularly a large insurance company or a bank. One also needs to curry the favor of other lawyers because, to a very great extent, business passes from one lawyer to

3 19931 ADVERTISING BY AMERICAN LAWYERS In the 1970's the United States Supreme Court seemed to be moving in the direction of extending the provisions of the First Amendment to commercial as well as political speech, which it eventually did. 4 Some attorneys following the decision of the Court probably suspected a willingness on the part of the Court to strike down state prohibitions on lawyer advertising based on the right of persons to receive information. In 1977 this hunch proved to be correct.' Placing an advertisement in a newspaper in the 1970's was most daring because it not only directly violated state ethical rules, but it probably enraged a large portion of the lawyers practicing in America. Those who placed advertisements very likely were the objects of scorn of many other lawyers. Nonetheless, the practice grew more and more common as the Supreme Court in case after case struck down various state prohibitions on advertising. This Article initially examines the various United States Supreme Court cases dealing with advertising by attorneys. The Court has quite consistently moved in the direction of permitting attorneys to engage in virtually any type of advertising so long as it is not false or misleading. It moved in this direction in spite of tremendous opposition to advertising by certain sectors of the organized bar. The next section of the Article generally examines the theories espoused by followers of Critical Legal Studies [hereinafter CLS]. This is no easy task because within this movement exists a wide range of differing opinions. Even so, its adherents probably agree upon certain broad general propositions such as law is politics, the law is indeterminate and the law serves to support another. A big gap exists between moderate-to-large law firms, which tend to get a lot of repeat business from the same clients, and the sole practitioner or small firm. The moderate-to-large firm tends to deal with people with a single legal problem. This means that the latter group must constantly struggle to find new clients. This suggests that sole practitioners and small firms probably could make a strong argument that they need to advertise in order to find new clients. Of course, the counterargument is that new clients will find them through word of mouth. Obviously, one way to circumvent the entire issue is to take a job working as inhouse counsel for a corporation or to take a governmental position. 4. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). 5. Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

4 BRIDGEPORT LAW REVIEW (Vol. 13:813 the status quo. One of the more interesting points of this movement, a point dealt with earlier by the Realists in the 1920's and 1930's, is the indeterminate nature of law. One way of exposing this indeterminacy in the law is by engaging in an internal critique of the law; that is, by examining judicial decisions to show that they are inconsistent, incomplete and ambiguous and therefore indeterminate-an approach followed to some extent in this Article. It should be noted that followers of CLS place great emphasis on judicial decisions as opposed to legislation. After this brief discussion of CLS, I examine how determinate the rules in the area of professional advertising are. Even a casual consideration of constitutional law cannot help but leave one with the impression that constitutional law is extremely indeterminate and largely a product of the value choices of judges. This is definitely true in the case of professional advertising. Of course, one might observe in passing, that even if this is in fact true, it is not necessarily a bad thing-unless one disagrees with the decisions of the courts. II. SUPREME COURT DECISIONS DEALING WITH ADVERTISING By LAWYERS The holding in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.' for the first time sig- 6. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). Until quite recently, lawyers believed that purely commercial speech was not protected by the First Amendment, and therefore a state could restrict commercial advertising in any manner desired. As time passed, the Court began to modify the commercial speech doctrine in a series of cases. For example, in Bigelow v. Virginia, 421 U.S. 809 (1975), the Court overturned the criminal conviction of the editor of a Virginia newspaper who published an advertisement dealing with abortions. The Court noted that the advertisement in this case dealt with a matter of public interest, and thus the publication of this information could not be prohibited by the State of Virginia. Id. at 822. In the Virginia State Board of Pharmacy case, the Court chose to protect the advertisement in question even though it was purely commercial. 425 U.S. at 764. Thus, the Court abandoned the commercial speech doctrine in this case and set the stage for a direct challenge to the restraints imposed by the states on advertising by lawyers. The author has written extensively on the question of advertising, and in particular, professional advertising. See 0. Lee Reed and Douglas Whitman, A Constitutional and Policy-Related Evaluation of Prohibiting the Use of Certain Nonverbal Techniques in Legal Advertising, 1988 B.Y.U. L. REV. 265 (1988); Douglas Whitman, Direct Mail Advertising by Attorneys, 20 N.M. L. REV. 87 (1990), Douglas Whitman and Clyde D. Stoltenberg, Evolving Concepts of Lawyer Advertising: The Supreme Court's Latest Clarification, 19 IND. L. REV. 497 (1986); Douglas Whitman and Clyde D. Stoltenberg,

5 19931 ADVERTISING BY AMERICAN LAWYERS naled the Supreme Court's intention to extend the protection of the First Amendment to commercial speech. This decision reversed an earlier precedent that excluded commercial speech from the coverage of the first amendment.' The Virginia State Board of Pharmacy case dealt with a group of purchasers of prescription drugs who brought suit against the Virginia State Board of Pharmacy. These consumers objected to the rule adopted by the State Board of Pharmacy that prohibited licensed pharmacists from advertising the price of prescription drugs. Due to the general public interest in such speech, the Supreme Court ruled that the First Amendment protects even commercial speech." The first attorney advertising case arose the following year-bates v. State Bar of Arizona.' Even taking into consideration the general drift of the Court with respect to commercial speech, most attorneys probably never dreamed that the Court might permit promotional advertising by practicing attorneys." Reflecting this anti-promotional bias, the American Bar Associa- Direct Mail Advertising by Lawyers, 45 U. Pirr. L. REV. 381 (1984); Douglas Whitman and Clyde D. Stoltenberg, The Present Constitutional Status of Lawyer Advertising - Theoretical and Practical Implications of In re R.M.J., 57 ST. JOHN'S L. REV. 445 (1983); Douglas Whitman, Advertising by Professionals, 16 AM. Bus. L.J. 39 (1978). 7. Valentine v. Chrestensen, 316 U.S. 52 (1942) U.S. at U.S. 350 (1977). In an earlier article I discussed the likely economic consequences of professional advertising. In that article I noted: It appears there is some evidence to support the proposition that the use of commercial advertising by professionals might decrease prices; furthermore, these studies imply that higher prices actually inhibit the utilization of professional services. This suggests that people who need professional services fail to obtain them because they believe prices are too high - a belief which might be dispelled by commercial advertising of prices. Douglas Whitman, Advertising by Professionals, 16 AM. Bus. L.J. 39, (1978) [hereinafter cited as Whitman, Advertising]. 10. One suspects the reason that attorneys wanted to continue to regulate the profession and to prohibit advertising was to keep fees high. A widespread device utilized to keep fees high was the minimum fee schedule. It met its death in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). In that case the Court considered the use of minimum fee schedules by the states. The plaintiffs were upset because no attorney in Fairfax County was able to perform a title examination for them for a price lower than the price specified in the Fairfax County minimum fee schedule. In spite of the fact the Court found that the state and county bar associations had a compelling interest in regulating the practice of law, the Court nonetheless found that such anti-competitive activity was within the reach of the Sherman Act. For a discussion of the antitrust implications of preventing lawyer advertising, see Whitman, Advertising, supra note 9, at

6 BRIDGEPORT LAW REVIEW [Vol. 13:813 tion's suggested Model Code of Professional Responsibility prohibited advertising by attorneys." John Bates and Van O'Steen ran a legal clinic in Phoenix, Arizona, which provided routine legal services at a low cost. At that point in time, computers cost a great deal of money. They needed a high volume of work to support such expenses at their clinic. On the fateful day of February 22, 1976, Bates and O'Steen placed an advertisement in the daily newspaper, the Arizona Republic. The advertisement listed the price for the following services: divorces or legal separations, uncontested divorces, adoptions, bankruptcies and name changes. Although this advertisement was a clear violation of Arizona's rules, Bates and O'Steen argued that Arizona's rule prohibiting advertising by attorneys violated their First Amendment right to free speech. 12 Justice Blackmun, writing for the majority, saw no problem with an attorney engaging in price advertising of a routine professional service based on the idea that the public profits from 11. DR 2-101(B) of the American Bar Association Code of Professional Responsibility formerly read: A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf except as permitted under DR This does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name: (1) In political advertisements when his professional status is germane to the political campaign or to a political issue. (2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients. (3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer. (4) In and on legal documents prepared by him. (5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof. MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR (1971) U.S. at This case also dealt with whether Arizona's disciplinary rules violated federal antitrust laws. The Court distinguished two seemingly applicable cases, Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) and Cantor v. Detroit Edison Co., 428 U.S. 579 (1976). After reviewing these cases, it concluded that, based on the Parker v. Brown exemption to the Sherman Act, 317 U.S. 341 (1943), the state action exemption barred the attorneys' antitrust claim. 433 U.S. at 361. This facet of the Bates case made it impossible to attack anti-competitive bar rules adopted by a state supreme court. The Court therefore adopted another approach to limit these anti-competitive rules-the argument that the rules violated the right of persons to receive commercial information. See Whitmain, Advertising, supra note 9, at

7 1993] ADVERTISING BY AMERICAN LAWYERS more information. Even so, the Court left the door open for extensive regulation of legal advertising by the state bar associations. The Bates decision permitted some state regulations. 13 The Bate's case probably merely confused attorneys rather than enlightened them. Clearly the United States Supreme Court wished to extend the protections afforded by the First Amendment to commercial speech. On the other hand, the Bates case permitted the states to regulate attorney advertising. 14 The Court allowed the states to place restrictions on false, deceptive or misleading advertising. 1 Likewise, the states were free to place reasonable restrictions on the time, place and manner of advertising. 16 The word "reasonable" gave the lower courts and the state bar associations very little guidance. Many attorneys philosophically opposed, and still do oppose, advertising as a method of professional promotion. They feel that advertising diminishes the dignity of the profession. 17 These attorneys question the U.S. at The Bates and O'Steen advertisement not only gave the prices for certain routine professional services such as adoptions and divorces, it also contained an illustration of the scales of justice near the top of the advertisement. Thus, by implication the Court approved the use of illustrations. In Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, the Court expressly upheld the right of Zauderer to include an illustration in his advertising. See infra notes and accompanying text U.S. at "Advertising that is false, deceptive, or misleading of course is subject to restraint." 433 U.S. at The Court observed: Advertising concerning transactions that themselves illegal obviously may be suppressed.... And the special problems of advertising on the electronic broadcast media will warrant special consideration... Id. at 384 (citations omitted). 17. See 433 U.S. at 368, where the Court discusses the argument that advertising allegedly diminishes the dignity of the profession. The Court in Bates noted that the bar on advertising originated as a rule of etiquette, and that the view that lawyers are "above" trade has become an anachronism. Id. at Quite a number of attorneys seem to be concerned about the fact that the Florida bar rules seem to reflect a feeling that many advertisements are tasteless. Florida has greatly restricted the techniques that can be employed in an advertisement. It prohibits the use of dramatizations, testimonials, endorsements, jungles, self-laudatory statements or multiple voices. It also requires a member of the firm in the advertisement if the advertisement involves live action. Furthermore, the rules require a disclaimer stating that advertising is not the best way to choose a lawyer. Mark Hansen, Bar's Ad Rules Pass Obstacle, A.B.A. J., Jan. 1993, at 17. For a discussion of the psychological reasons why exactly these type of restrictions might be a good idea, see 0. Les Reed and Douglas Whitman, A Constitutional and Policy-Related Evaluation of Prohibiting the Use of

8 BRIDGEPORT LAW REVIEW [Vol. 13:813 competency of any attorney who would engage in such a practice. 18 The state bar associations responded to the Bates decision by interpreting the word "reasonable" very narrowly-thus making it very difficult for attorneys to advertise.' 9 By taking such a restrictive approach with respect to attorney advertising, the states in effect forced the Court to clarify its position with respect to attorney advertising. In any event, the Court left a number of issues unresolved in the Bates case. For example, the Court suggested that claims relating to quality and in-person solicitation both may be im- Certain Nonverbal Techniques in Legal Advertising, 1988 B.Y.U. L. REV. 265, (1988) [hereinafter Reed, Nonverbal Techniques]. It is entirely possible that many attorneys feel an attorney should not engage in any form of promotion. Persons holding this viewpoint probably believe that those persons who "deserve" clients already have clients. Those attorneys who do not have clients do not "deserve" to have them because they are either ignorant, incompetent, lazy, dishonest, or a combination of these attributes. It irritates successful lawyers to see any business going to such persons. In fairness, it should be recognized that the market for legal services is not a level playing field. Many perfectly competent people find it more difficult to promote themselves for reasons totally unrelated to competency. See, e.g., Keeva, Unequal Partners, A.A.A. J. Feb. 1993, at 50. Keeva notes that minority lawyers, even after becoming partners in large firms, still find it difficult to develop business. Id. 18. The Chief Justice of the United States Supreme Court condemned lawyers who advertise. Chief Justice Warren Burger stated that "some of the ads are 'sheer shysterism' and that, if he were a private lawyer again, he would 'dig ditches' before resorting to advertising." KANSAS CITY TIMES, Jul. 8, 1985, at B-8, col. 5. He also stated: "I will never - my advice to the public is never, never, never, under any circumstances, engage the services of a lawyer who advertises." Id. Obviously such strong language reflects the belief that a good lawyer will not need to resort to advertising in order to generate business. Like many lawyers, Burger probably believes that word of mouth will result in a good lawyer's eventual prosperity and a poor one's poverty. Yet the Supreme Court itself found that relying on personal contacts merely serves to perpetuate the position of established attorneys in the market. See Bates, 433 U.S. at For a discussion of the argument asserted by lawyers opposed to advertising see Douglas Whitman and Clyde D. Stoltenberg, The Present Constitutional Status of Lawyer Advertising - Theoretical and Practical Implications of In re R.M.J., 57 ST. JOHN'S L. REV. 445, (1983) [hereinafter cited as Whitman, Present Constitutional]. One of the major points of the followers of Critical Legal Studies is that judicial decisions are not objectively arrived at but are the product of value judgments. Of course, this is likewise true with respect to attorneys' attitudes on advertising. But the more significant point to bear in mind is that, at least for some lawyers, the arguments asserted in opposition to attorney advertising are nothing more than a mere ruse to divert attention from the real concern of certain members of the legal profession: stifling competition.

9 1993] ADVERTISING BY AMERICAN LAWYERS proper. 20 The Court also hinted that advertising on the electronic broadcast media would also need to be examined. 21 In fact, Bates gave the states little direction. Many other issues such as whether an advertisement must be dignified, whether an attorney may use direct mail, to what extent a person could list areas of practice, and a host of other matters were left for a future date to be resolved by the state regulators and eventually by the courts. 22 The Court in 1980 decided a very important commercial speech case, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. 2s The Public Service Commission of New York had ordered all electric utilities in New York to stop engaging in advertising that promoted the use of electricity in order to promote the conservation of energy. The Court regarded the state's interest in preserving the program of energy conservation as substantial. It attempted to summarize what types of regulation of commercial speech were permissible,"' and it summarized the governing rule in a short state U.S. at Id. 22. Two cases should be noted at this point: In re Primus, 436 U.S. 412 (1978) and Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). The Primus case dealt with a lawyer from the American Civil Liberties Union who informed a woman of the willingness of the A.C.L.U. to represent her for free. The Court ruled the First Amendment protected the actions of the A.C.L.U. 436 U.S. at 422. The Ohralik case-a solicitation case-dealt with an attorney who solicited the business of an accident victim in the hospital. The Court upheld Ohio's disciplinary actions against him thus partly protects commercial speech. 436 U.S. at 457. Another case worthy of noting in passing is Friedman v. Rogers, 440 U.S. 1 (1979), which dealt with an optometrist who violated a Texas law that prohibited the use of trade names by optometrists. The Court upheld the prohibition on the use of trade names because the state had a substantial interest in regulating this form of advertising and other advertising alternatives were available. Id. at U.S. 557 (1980). 24. The Court summarized the rules as follows: The First Amendment's concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S. Ct. 1407, 1419, 55 L.Ed.2d 707 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to 2 deceive the public than to inform it... or commercial speech related to illegal activity... If the commission is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by the restriction on commercial

10 BRIDGEPORT LAW REVIEW [Vol. 13:813 ment. 2 5 The Court rejected the rule adopted by the Public Service Commission of New York because it was more extensive than was necessary to further the State's interest in energy conservation and the State did not establish that a more limited restriction on speech would not have adequately served the state's interests. 2 6 The Central Hudson case helped clarify the position of the Supreme Court with respect to commercial speech. The Court intended for commercial speech to be protected by the First Amendment. However, unlike its position on political speech, the Court permitted the states to adopt regulations to directly advance substantial state interests in the least restrictive manner possible. Speech that concerns unlawful activities or that is misleading is not protected by the First Amendment. Having clarified the law with respect to commercial speech, the Court then moved on to apply this newly created rule specifically to attorney advertising. The first chance to do so arose in In re R M.J.2 7 Following the decision in Bates, Missouri revised its rules 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. 447 U.S. at U.S. at 566. The Court reduced the prior statement to the following pithy statement: In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Id. 26. Id. at U.S. 191 (1982). See generally, Douglas Whitman, Present Constitutional, supra note 19 and Whitman and Stoltenberg, Direct Mail Advertising by Lawyers, 45 U. Pirr. L. REv. 381 (1984) [hereinafter cited as Whitman, Direct Mail].

11 1993] ADVERTISING BY AMERICAN LAWYERS dealing with publicity. 2 " The Missouri Supreme Court adopted a 28. The revised Missouri rule stated: (A) A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm use or participate in the use of any form of public communication respecting the quality of legal services or containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim. (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 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 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 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 or 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. (C) If a lawyer advertises a fee for a service, the lawyer must render that service for no more than the fee advertised; (D) Unless otherwise specified in the advertisement, if a lawyer publishes any fee information authorized under DR 2-101(B) in a publication that is published more frequently than one time per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication. If a lawyer publishes any fee information authorized under DR 2-101(B) in a publication that is published once a month or less frequently, he shall be bound by any representation made therein until the publication of the succeeding issue. If a lawyer publishes any fee information authorized under DR 2-101(B) in a publication which has no fixed date for publication of a succeeding issue, the lawyer shall be bound by any representation made therein for a reasonable period of time after publication but in no event less than one year. (E) This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name: (1) In political advertisements when his professional status is germane to the political campaign or to a political issue. (2) In pubic notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients. (3) In routine reports and announcements of a bona fide business, civic,

12 BRIDGEPORT LAW REVIEW (Vol. 13:813 very restrictive rule that permitted only the information listed in its rule to appear in an advertisement. The Advisory Committee to the Missouri Supreme Court issued an Addendum to the Rule providing specifically how to deal with the issue of the listing of areas of practice. 29 Missouri's rule also permitted lawyers to send announcement cards only to "lawyers, clients, former clients, personal friends, and relatives." 30 R.M.J., a Missouri attorney, placed an advertisement in a neighborhood newspaper that listed both the courts in which he was admitted to practice and certain areas of practice that were not specified in Rule 4 of the Supreme Court of Missouri. He also mailed professional announcement cards to a larger group professional, or political organization in which he serves as a director or officer. (4) In and on legal documents prepared by him. (5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof. (F) A lawyer shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item. Mo. STAT. ANN. DR (Vernon 1982). Obviously, the Missouri Supreme Court preferred very precise rules and it wanted attorneys to confine their advertisements to verifiable facts. See Reed, Nonverbal Techniques, supra note 17, at where the authors imply that professional advertising ought to be confined to facts. In light of the decision in the R.M.J. case, however, the Court seems to have rejected such a position. See infra note The Addendum to the rule promulgated by the Advisory Committee provided in relevant part, as follows: [T]he following areas or fields of law may be advertised by use of the specific language hereinafter set out: 1. 'General Practice' 2. 'General Criminal Practice' 3. 'General Civil and Criminal Practice' If a lawyer or law firm uses one of the above, no other area can be used... If one of the above is not used, then a lawyer or law firm can use one or more of the following: 1. 'Administrative Law' 2. 'Antitrust Law' 3. 'Appellate Practice' 4. 'Bankruptcy' 5. 'Commercial Law' 6. 'Corporation Law and Business Organizations' 7. 'Criminal Law' 8. 'Eminent Domain Law' 9. 'Environmental Law' 10. 'Family Law' 11. 'Financial Institution Law' 12. 'Insurance Law' 13. 'Labor Law' 14. 'Local Government Law' 15. 'Military Law' 16. 'Probate and Trust Law' 17. 'Property Law' 18. 'Public Utility Law' 19. 'Taxation Law' 20. 'Tort Law' 21. 'Trial Practice' 22. 'Workers Compensation Law' No deviation from the above phraseology will be permitted and no statement of limitation of practice can be stated. If one or more of these specific areas of practice are used in any advertisement, the following statement must be included... 'Listing of the above areas of practice does not indicate any certification of expertise therein.' Rule 4, Addendum III (Adv. Comm. Nov. 13, 1977). 30. Mo. Ann. Rules of Court, Rule 4 DR 2-102(A)(2) (Vernon 1981). This rule also permitted the cards to state "new or changed associates or addresses, change of firm name, or similar matters." Id.

13 1993] ADVERTISING BY AMERICAN LAWYERS of persons that was allowed by DR 2-101(A)(2). In examining the behavior of R.M.J. the United States Supreme Court in In re R.M.J. essentially applied the Central Hudson test to attorney advertising: Commercial speech doctrine, in the context of advertising for professional services, may be summarized generally as follows: Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when the experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive... Although the potential for deception and confusion is particularly strong in the context of advertising professional services, restrictions upon such advertising may be no broader than reasonably necessary to prevent the deception. 3 1 Missouri charged that R.M.J. had listed other areas of practice than those permitted by Missouri's rules and he had listed the courts and states to which he had been admitted to practice. R.M.J. had also mailed announcement cards to persons other than those permitted by Missouri's rules. With respect to the first two charges the Court ruled that R.M.J.'s advertisements were not deceptive and Missouri had failed to identify a substantial interest promoted by these rules. 32 With respect to the 31. In re R.M.J., 455 U.S. 191, 203 (1982). 32. Id. at 205. It should be noted that the Court suggested that to state he was a member of the Bar of the United States Supreme Court could be misleading. Id. at For a model statute dealing with direct mail, see Whitman, Present Constitutional, supra note 19, at As to where lawyers stand with respect to the issue of direct mail advertising, as of 1982, Whitman and Stoltenberg summarized the law as follows: First, absolute prohibition of mailings can be supported only if the state is unable to supervise such mailings or if less restrictive alternatives are not available. Second, lawyers must be meticulous about the accuracy of the content of any mailings in order to avoid false or misleading statements of any kind. Third, lawyers should, to the extent possible, cast their mailings in an informational vein and avoid language that could be construed as direct solicitation. Fourth, lawyers should assess the likelihood of a conflict of interest arising from the nature of the audience to whom the mailing is directed, and balance the risk of being subjected to sanctions on such grounds against the

14 BRIDGEPORT LAW REVIEW [Vol. 13:813 issue of the mailing of announcement cards to persons other than those mentioned in Missouri's rules, the Court stated that it saw no need for an absolute prohibition on such mailings. The State of Missouri failed to proceed along the least restrictive path. 33 Therefore, the Court found that none of Missouri's charges could be sustained in light of the infringement of these rules on R.M.J.'s First Amendment rights. The next case decided by the Supreme Court dealing with attorney advertising was Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio. 4 Zauderer placed several advertisements that violated Ohio's rules. The first advertisement indicated that he would refund a client's legal fee if a court subsequently convicted his client. The Office of Disciplinary Counsel charged that this advertisement appeared to be an offer to represent criminal defendants on a contingent fee basis, so Zauderer withdrew the advertisement. 3 5 He thereafter placed an advertisement concerning the Dalkon Shield Intrauterine Device. The advertisement indicated his firm currently represented women in cases arising from the use of this product and that the firm handled such cases on a contingent fee basis with no legal fees if the firm failed to recover damages. 3 6 The advertisement in question contained an illustration of the Dalkon Shield, an illustration not permitted by Ohio's rules. The Office of Disciplinary Counsel of Ohio brought charges against Zauderer charging that such an advertisement violated Ohio's rules prohibiting self-recommendation and prohibiting the acceptance of employment resulting from unsolicited legal potential benefit to be derived from the mailing. Whitman, Direct Mail, supra note 27, at This article also discusses why direct mail is a superior method of advertising as compared to other media available to the practicing attorney. Id. at More recently, the United States Supreme Court gave its blessing to even targeted direct mail advertising in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) U.S. at 207. This case should have been a strong signal to the states to become less restrictive in their regulation of attorney advertising as one author observed: The liberality of the Central Hudson test (as compared with the advertising rules currently in effect) combined with the unanimous opinion in R.M.J., is a strong signal to the state to be less restrictive in the regulation of attorney advertising. Webster, Easing Restrictions on Attorney Advertising, 23 S. TEx. L.J. 453, 465 (1982) U.S. 626 (1985). 35. Id. at Id. at

15 1993] ADVERTISING BY AMERICAN LAWYERS advice. The Court ruled for Zauderer because his advertisements were neither false nor deceptive. The burden was on Ohio to establish that its rules prohibiting self-recommendation and the acceptance of employment resulting from unsolicited legal advice directly advanced a substantial state interest. 3 7 This decision thus recognizes that attorneys place advertisements in order to generate business. The Court rejected Ohio's blanket ban on all illustrations except the scales of justice. Applying the Central Hudson test, the Court found that Ohio had failed to present a substantial state interest which justified its restriction. 8 Because advertisements can be examined on a case-by-case basis, the Court saw no reason for a complete prohibition on illustrations. 3 9 Thus, the Court for the most part followed the Central Hudson test in resolving this dispute. However, it applied another test in resolving the question of whether Zauderer's advertisement needed a disclaimer in order to advise potential clients of the potential of liability for the cost of a suit if they lost. Because the disclosure furthered the state's interest, it was permissible.' 0 Because an advertisement without the required disclosure could easily mislead the public, it is reasonable for the state to require that information concerning the client's liability for the costs of the suit be disclosed in the advertising." 1 The next United States Supreme Court decision on the issue of attorney advertising is Shapero v. Kentucky Bar Ass'n.' 2 The Shapero case dealt with the actions of an attorney, Richard Shapero. Shapero proposed to the Advertising Commission of the Kentucky Bar that he be allowed to send a letter to potential clients whose homes were being foreclosed. The Commission ruled that such a letter violated Kentucky's ethical rules because it was a form of solicitation precipitated by a specific event.' Id. at U.S. at Id. at Id. at Id. at It should be noted that the Court affirmed the decision of the Ohio Supreme Court with respect to Zauderer's drunk driving advertisement. Id. at U.S. 466 (1988). For a discussion of the Shapero case see Douglas Whitman, Direct Mail Advertising by Attorneys, 20 N.M. L. REv. 87, (1990). 43. Shapero v. Kentucky Bar Ass'n, 726 S.W.2d 299, (Ky., 1987).

16 BRIDGEPORT LAW REVIEW [Vol. 13:813 The Ethics Committee agreed with the ruling of the Advertising Commission. The Kentucky Supreme Court held that direct targeted mail may be prohibited because it is analogous to in person solicitation." On the other hand, the court reasoned that general mailings not addressed to a specific situation were permissible. 4 The United States Supreme Court disagreed with the decision of the Kentucky Supreme Court. Justice Brennan noted that the same information that Shapero proposed to include in his letter could be used by an attorney in a newspaper advertisement." 6 The real issue in this case Justice Brennan felt was whether recipients of such a letter might be exploited by attorneys. 47 Justice Brennan decided that any possible abuses could be regulated by the state in a less restrictive manner than by an absolute ban. 4 8 Therefore, the Court concluded that even targeted direct mail from an attorney may not be banned by a state. A case worthy of note is Board of Trustees of the State University of New York v. Fox. 49 This case dealt with a regulation promulgated by the State University of New York concerning the right of private commercial enterprises to operate in the school's dormitories. The regulation permitted only certain businesses to operate in university facilities. American Future Systems, Inc. [hereinafter AFS], which sells housewares through party plans, wanted to make some sales through a representative at the university. An AFS representative was arrested for refusing to leave a dormitory after she was advised that she was violating the school's regulations. Fox and several other students filed suit challenging the constitutionality of this regulation. They argued it violated the First Amendment. The lower court applied the Central Hudson test in resolving this dispute. Justice Scalia delivered the opinion of the Supreme Court. In particular, he focused on the sentence in Central Hudson which states, "[i]f both inquiries yield positive answers, we must deter- 44. Id. at Id U.S. at Id. 48. Id. at S. Ct (1989).

17 1993] ADVERTISING BY AMERICAN LAWYERS mine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." 0 Justice Scalia acknowledged the Court itself had created conflicting dicta with respect to the meaning of how narrow a state's regulation must be. 51 He summarized the Court's position on this issue: In sum, while we have insisted that "'the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing... the harmless from the harmful,'" we have not gone so far as to impose upon them the burden of demonstrating that the distinguishment is 100% complete, or that the manner of restriction is absolutely the least severe that will achieve the desired end. 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 Board of Trustees of the State University of New York v. Fox, 109 S. Ct. at 3032 (quoting Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566 (1980)) (emphasis added) S. Ct. at The precedents are not conflicting at all. See infra note Id. at (citations omitted). Justice Scalia added: Here we require the government goal to be substantial, and the cost to be carefully calculated. Moreover, since the State bears the burden of justifying its restrictions, it must affirmatively establish the reasonable fit we require. By declining to impose, in addition, a least-restrictive-means requirement, we take account of the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires, and provide the legislative and executive branches needed leeway in a field (commercial speech) "traditionally subject to governmental regulation." Id. at 3035 (citations omitted). It is extremely difficult to square Justice Scalia's opinion with the prior cases. In the Central Hudson case, the Court stated that "if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive." 447 U.S. at 564. See supra note 24. This sounds a great deal like the government must adopt the least restrictive means possible to achieve its ends. In R.M.J., the Court struck down Missouri's prohibition on direct mail because Missouri had failed to proceed upon the least restrictive path. "[R]estrictions upon such advertising may be no broader than reasonably necessary to prevent the deception." 455 U.S. at 203. See supra notes and accompanying text. This also sounds very much as if the

18 BRIDGEPORT LAW REVIEW [Vol. 13:813 Justice Scalia appears to have watered down the standard enunciated in the Central Hudson case in order to make it easier for states to justify their regulation of commercial speech. In Peel v. Attorney Registration and Disciplinary Commission of Illinois the Court announced its latest position with respect to attorney advertising." The changing composition of the United States Supreme Court continues to erode the ability of the Court to come to an agreement in this area. In fact, no one group managed to muster a majority of votes. Justice Stevens, joined by Justices Brennan, Blackmun and Kennedy wrote a judgment of the Court in this matter. The case arose from the actions of Gary Peel, of Edwardsville, Illinois, who since 1983 had used the following statement on his professional letterhead: Gary E. Peel Certified Civil Trial Specialist By the National Board of Trial Advocacy Licensed: Illinois, Missouri, Arizona5 4 In 1987, the Administrator of the Attorney Registration and Disciplinary Commission of Illinois (Commission) filed a complaint alleging that Peel's use of this letterhead amounted to a holding of himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. That Rule provided: A lawyer or law firm may specify or designate any area or field of law in which he or its partners concentrates or limits his or its practice. Except as set forth in Rule 2-105(a), no lawyer may hold himself out Court wanted states to adopt the least restrictive means possible to achieve its ends. In Shapero, the Court struck down Kentucky's bar on targeted direct mail because abuses could be regulated in a less restrictive manner than by an absolute ban. 486 U.S. at 476. See supra note 48 and accompanying text. In Fox Justice Scalia refers to the above statements as dicta. 109 S. Ct. at It is totally unreasonable to call these statements dicta as they were essential statements needed to resolve the case. Justice Scalia, who supposedly thinks highly of precedents, is guilty of flagrant result orientation in writing his opinion. It is a classic example of the approach of judges who believe in judicial restraint, as opposed to judicial activism, but who also are very result oriented. Such judges take pains to distinguish precedents in order to cover up their own desire to arrive at a particular result in a particular case. Why not just take a more straight forward approach, state that he disagrees with the prior decisions, and create a new rule? Justice Scalia's opinion is an excellent illustration of the Critical Legal Studies position that nothing is dictated by precedents S. Ct (1990). 54. Id. at 2285.

19 1993] ADVERTISING BY AMERICAN LAWYERS as "certified" or a "specialist. 55 Both the Commission and the Illinois Supreme Court imposed a sanction of censure for using this letterhead. The United States Supreme Court agreed to hear the case in order to decide whether the Constitution gives a lawyer the right to advertise his or her certification as a trial specialist by an organization such as the National Board of Trial Advocacy (NBTA). 5 Justice Stevens viewed the statements in question as a verifiable fact-as opposed to a statement of opinion of the quality of a lawyer's work-that may support an inference of quality. 5 7 The Court acknowledged the quality of the NBTA certification program."' Justice Stevens rejected the argument that the juxtaposition of the words "certified" as "specialist" with the phrase licensed in three states suggests some sort of state certification of Peel's abilities. 5 9 The State of Illinois took the position that the public might misunderstand the true meaning of such a letterhead-thus justifying the State's imposition of a total ban on such statements. But Justice Stevens thought that this statement poses no greater potential for misleading consumers than other statements and 55. Illinois Code of Professional Responsibility Rule 2-105(a)(3)(1988). 56. Justice Stevens quoted the standard governing advertising by lawyers announced by Justice Powell for a unanimous Court in In re R.M.J. Truthful advertising related to lawful activities is entitled to the protection of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive... Even when a communication is not misleading, the State retains some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served. In re R.M.J., 455 U.S. at 203 quoted in Peel v. Attorney Registration and Disciplinary Commission, 110 S. Ct. 2281, 2287 (1990). 57. See Reed, Nonverbal Techniques, supra note 17, at where the authors argue against the use of nonverbal techniques in legal advertising and the need to confine advertising to facts, rather than emotion S. Ct. at It should be noted that the American Bar Association's Comment to Model Rule 7.4 prohibited a lawyer from calling himself a specialist in states with no formal certification procedures. ABA Model Rule of Professional Conduct 7.4 and Comment (1989) S. Ct. at 2289.

20 BRIDGEPORT LAW REVIEW [Vol. 13:813 behavior that have been upheld in the past by the Court. 6 Justice Stevens found the Illinois regulation to be broader than was necessary to accomplish the goals of the State. 1 In light of its use of a total ban rather than some other form of regulation, Justice Stevens decided that Illinois retained a heavy burden to justify its actions even if one characterized the statement in question as merely potentially misleading. 2 He concluded: To the extent that potentially misleading statements of private certification or specialization could confuse consumers, a State might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty... A State may not, however, completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as the NBTA...Information about certification and specialties facilitates the consumer's access to legal services and thus better serves the administration of justice.s The censure of Peel violates the First Amendment because the letterhead in question was neither actually nor inherently misleading, and the disclosure of such information serves the public interest." Two members of the Court who have now retired, Justices Marshall and Brennan, concurred in the judgment of the Court. Justice Marshall also viewed the letterhead as neither actually nor inherently misleading-thus he agreed with the plurality decision. Unlike Justice Stevens, however, he thought one could characterize the statement on the letterhead as "potentially misleading. '65 A state lacks the power to ban potentially misleading statements if narrower limitations could also further the state's 60. Id. at In re R.M.J., 455 U.S. 191 (1982) the Court upheld the use of the statement that R.M.J. had been admitted to practice before the U.S. Supreme Court; in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988), the Court upheld the use of targeted direct mail; and in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the Court upheld the use by Zauderer of an accurate illustration S. Ct. at The Court acknowledges that the First Amendment does not protect a certification program that is a mere sham. Id. at Id. at The Court seems to be relying upon the Central Hudson test in this regard. 63. Id. at Id. at S. Ct. at 2293 (Marshall, J., concurring).