Committee on Professional Ethics & Conduct of Iowa State Bar Ass'n v. Humphrey

COMMITTEE ON PROFESSIONAL AND

ETHICS CONDUCT OF ASSOCIATION,

IOWA BAR STATE

Plaintiff,

Mark A. HUMPHREY Fredd J.

Haas, Haas, Humphrey and d/b/a

Defendants.

No. 69088.

Supreme Court of Iowa.

Sept. Sherburne,

Nick Critelli of & Critelli Des Moines, and A. Frank Comito of & Comito Moines, Capps, plaintiff. Des Babich, Mark W. Bennett of Bennett & Nickerson, Moines, Og- Des &Wilcox den, Golden, Colorado, for defendants. Barry Erwin G. D. Uman- Krasnow Washington, D.C., curiae, sky, for amici wages, Iowa I Broadcasters Ass’n and Nat. Ass’n of suffered loss of incurred bills, staggering Broadcasters. medical and endured suffering negli- pain through all Counsel, Carley, John W. Gen. and Wil- gence my of others. wasn’t aware Jacobs, Doubrava, liam W. and Brenda W. talking legal rights. should have been Cleveland, Ohio, curiae, for amicus F.T.C. lawyer. to a portraying The third featured actors bowl- following ers. The conversation takes HARRIS, Justice. place at the lanes: lawyer advertising expressly Our rule on got 1: Bowler I’ve to throw like that prohibits television advertisements which today; we’re one man short. sound, background displays, contain visual injured through Bowler 2: He was single, more than a nondramatic voice negligence of others. self-laudatory Believing statements. 1: talking Bowler He should be to a rule exceeded the standards outlined Court, lawyer. United States defendant lawyers bought and aired television adver- lawyer Bowler 2: The choice of that tisements in clear of it. Plaintiff violation important. will be brought original committee then this action something Bowler 1: That’s to think enjoin before us to the advertisements. about. counterclaimed, Defendants answered advertisements, In each after the rule, asking that the to the extent of the dramatization, picture brief switches to violation, be set aside as unconstitutional. person portraying receptionist a a in a law passes We think the rule constitutional name, address, number, office. phone The permanent muster and order issuance of a practice and areas of of defendants’ law injunction. firm superimposed picture, are over the background briefly The factual can be says: and a voice September stated. Des Moines you’re injured If through negli- attorneys Humphrey, Mark A. Fredd J. others, gence of call the law firm of Haas, Gritzner, and James E. seek- without Humphrey, Haas & Gritzner. in- Cases ing prior permission, aired the advertise- volving accidents, comp, auto work seri- ments over a Des Moines television station personal injury wrongful ous death three-day period. They pur- for a had percentage handled on a basis. No corporation. the ads from a Denver chased charge for initial consultation. Call now types. The ads were of three The first at 288-0102. portraying featured an actor and actress a repeats phone The voice number twice. physician and nurse in an examination The television station discontinued the room. While the “nurse” looks an X- following request advertisements a from ray, “physician” says: the ethics committee. The then committee injuries We see first-hand caused action, commenced requesting us to neglect you’re seriously of others. If enjoin using defendants from the ads be- injured others, through negligence professional cause violate our canons you talking lawyer. should be to a The DR granted 2-101 and DR 2-105. We important. choice of could be temporary injunction. something That’s to think about. portraying By counterclaim, second ad featured an actor answer and based on 42 § printer standing press. in front of a Humphrey U.S.C. defendants “printer” says: Haas,1 asserted that DR 2-101 and DR 1. Gritzner had withdrawn from the firm this action as to him. and, time in October we dismissed the ‘inherently’ misleading, the first and fourteenth 2-105 violate and therefore of the United States constitu prohibited amendments could not be on that basis. They phrase also asserted the “non tion. rejected court also of oth- number 2-101(B) dramatic voice” in DR and the justifications er for broad restrictions on 2-101(A) “self-laudatory” in phrase DR advertising including potential ad- vagueness void for under the first and profession- verse effect of on fourteenth amendments. alism, justice, on the administration of and on quality legal the cost and 1983, evidentiary hearing July In was services, as well as the difficulties held before the Honorable C. Edwin Moore. enforcing outright standards short of an appointed judge com- We senior Moore as prohibition. None of these interests was to conduct the hear- missioner of this court found sufficiently strong to be or suffi- ing the evidence. The mat- and summarize ciently by lawyer advertising affected to ter us the record made before is before on justify prohibition. him. But the decision in Bates nevertheless ethics, Iowa’s canons of in

Prior to 1977 empha- was a narrow one. The Court canons, strictly most such common with sized advertising by lawyers that still lawyer advertising. prohibi- The forbade False, regulated. deceptive, could be part or ques- for the most was never tion Indeed, misleading advertising subject remains prior relatively tioned. recent times, restraint, recognized the United States Court and the court regulation speech advertising by professions poses viewed of commercial that regulation special tantamount to the of a business deception ‘[Bjecause risks of — activity: wholly permissible and without sophistication concerning lacks le- protection of the first amendment. services, gal might misstatements that Chrestensen, 52, Valentine v. 316 U.S. unimportant be overlooked or deemed 920, (1942). 86 L.Ed. 1262 advertising may quite and other found inappropriate legal advertising.’ in [Cit- however, speech, free Commercial was ing suggested Bates that ] recognized by the court in Virginia Phar in-person quality claims as to or solicita- macy Virginia Board v. Consumer Coun might likely tion be so to mislead as to cil, 748, 425 U.S. 96 S.Ct. 48 L.Ed.2d warrant restriction. And the Court not- (1976). right applied was first for warning might ed that a or disclaimer lawyers Arizona, in Bates v. Bar State appropriately required, in the con- even 433 U.S. 97 S.Ct. 53 L.Ed.2d 810 advertising price, in text of as to order to (1977), longer which held that no could a dissipate possibility of consumer con- absolutely prohibit lawyer state advertis deception. fusion or retains bar ing. only regulate ‘[T]he It could it. The Bates power to correct omissions opinion explained by was later the court in presenting the effect of an inaccurate the case of In re 455 U.S. picture, [although] preferred remedy 199-202, 929, 935-37, disclosure, (1982): is more rather than less. 71-74 [Citing Bates ] held that Bates Court ... advertising was a form of commercial short, although the Court Bates speech, protected by the First Amend- persuaded price advertising was not ‘advertising’ by attorneys ment and that necessarily for ‘routine’ services was or suppres- may not be to blanket although inherently misleading, and [Citing sion. Bates ] receptive justifi- Court was not to other specifically, advertising, restricting More the Bates Court held cations for permitted lawyers by any must be to adver- it did not restric- means foreclose charge potentially demonstrably tise the fees for certain ‘rou- tions on mis- Indeed, leading advertising. tine’ services. The court concluded the Court press advertising recognized special possibilities that this sort of for de- Comm’n, Hudson Gas v. Public Service ception presented by advertising pro- for 557, 566, 2343, 2351, public’s compara- fessional services. The knowledge, (1980). ability point tive lack of the limited L.Ed.2d As we shall themselves, out, professions police special problem recognized of the ad- vertising by way absence standardization of the electronic media. ‘product’ pro- renders responding some care in We took especially susceptible fessional services Bates opinion. We asked the ethics com- legiti- to abuses that the States have a mittee2 to hearings, conduct to in- controlling. mate interest in vestigate lawyer advertising, the matter of Thus, Court has made clear report and to file with us a with recom- Bates subsequent regula- cases that mended profes- rules for the imposition discipline tion —and —are hearings sion. After and considerable permissible particular where the adver- study, the report committee filed its tising inherently likely to deceive or January us Following on particu- where the record indicates that a consideration, study own extended we advertising lar form or method of has in 6,May entered an order on which in Id. deceptive. fact been adopted report effect the committee’s recommendations. cases, Other in which the con court lawyer advertising, sidered restrictions on Despite objection voiced before the com- Primus, were In re U.S. us, carefully by mittee and later considered (1978) (political 56 L.Ed.2d 417 ex provision the rules contain challenged pression by lawyer working or association specifies here. DR 2-101 in considerable for American Civil Liberties Union called advertising detail what prohib- is and is not “exacting scrutiny applicable to limita 2-101(A) generally prohibits: ited. DR rights” tions on core first amendment [A]ny form of communication rule) reviewing lawyer solicitation and Oh false, fraudulent, which contains a mis- Association, ralik v. Ohio State Bar leading, deceptive, self-laudatory or un- U.S. statement, any fair which contains state- (1978) (lower judicial scrutiny level of re relating ment or quality claim to the quired prohibiting in-person for rule solici legal services, appeals .... which to the by lawyer). tation emotions, prejudices, or likes and dislikes person, of a eases, any To or which claim foregoing summarize the contains aside, that is not verifiable .... special category, court set as a ad- vertising which is or which ex- 2-101(B) DR separately deals with news- perience proved inherently to be mis- papers directories, periodicals, telephone leading. speech catego- Commercial in this radio, and television. The rule lists 19 ry appropriately can be restricted. Mis- thought items to be useful leading advertising prohibited. can be Oth- (names, practice, fields of office and tele- lawyer advertising regulated er can if phone answering hours, hourly service fee compelling state first demonstrates rate, fees, range fixed specific of fees for any interest. But restrictions must nar- services, place date and of bar admis- drawn, rowly may and the regulate state sions, various memberships, licenses and only regulation to the extent furthers sub- etc.). Only may the listed items be commu- stantial state interest. public. nicated to the As to television ad- vertising provides: the rule speech Commercial challenges free to ad- vertising information, rules are to be under reviewed The same words four-part analysis specified Central only, by numbers articulated single professional appoint lay The committee on ethics and con- state bar association. We two mem- duct of the Iowa state bar association. Seven bers committee. See Iowa Court Rule lawyer appoint- members of the committee are 118.2. ed, confirmation, by to our the Iowa voice, ground lawyer non-dramatic that of the law- involved could think of a yer, and with no other background better rule. sound, may be communicated on tele- challenge Because the is limited to its television, vision. In the case of no visu- basis, constitutional we have set aside a display except al shall be allowed go number of criticisms that only to the print allowed in as articulated wisdom of the rule. announcer. All such communications on television, radio II. The possi- the extent United States ble, geographi- shall be made in the seems not specifically to have addressed lawyer cal area in maintains sound, the use of displays, visual and dram- significant part offices or which a atization, clearly but seems to recog- lawyer’s Any clientele resides. nized the electronic use of those devices as presented digni- information shall be in a potentially misleading. It has referred to fied manner .... “special problems” of television adver- tising: encompasses I. Our rule concept. “safe harbor” The listed items special problems on [T]he may speci- be communicated the manner the electronic broadcast media will war fied. A who feels constrained special rant Capital consideration. Cf. may petition

the rules to have them Mitchell, Broadcasting Co. v. committee, changed. The as our commis- (D.C.1971), F.Supp. 582 aff’d sub nom acting upon sioner on its own motion or Capital Broadcasting v. Acting Co. At request lawyer, Iowa is to consider General, torney proposed amendments to the advertisement 1289, (1972).3 31 L.Ed.2d 472 2-101(D). Any See rules. DR recom- Bates, 384, 2709, 433 U.S. at 97 at 53 changes by mended are to be considered us L.Ed.2d at 836. prompt appeal provided and a to us is from cases, In several the court has described rejection requested the committee’s of Id. changes. uniquely pervasive media broadcast or intrusive. Federal Communications course, proceeding, This of is no Foundation, Commission v. 438 Pacifica appeal. proposing Rather than rule 726, 748, 3026, 3039, U.S. 98 S.Ct. 57 changes which would authorize their tele 1073, (1978) (“the L.Ed.2d 1093 broadcast advertisements, vision chose defendants uniquely pervasive media has established a violate the rule and defend their violation Americans.”); presence in the lives of all by challenging constitutionality. its Ac Broadcasting System, Columbia Inc. v. cordingly, dealing we are with the Committee, Democratic National 412 U.S. constitutionality, rule’s not with its wis 94, 127, 2080, 2098, 772, 93 S.Ct. 36 L.Ed.2d scarcely dom. It should be necessary to (1973) (“viewers ‘captive 798 constitute a point any lawyer asserting out that ”); Metromedia, City Inc. v. audience.’ change, present wisdom of a rule should of 490, 501, Diego, San 453 U.S. 101 S.Ct. proposal to the committee under the 2882, 2889, 800, (1981) 69 L.Ed.2d 811 procedure provided. profes we have (“Each communicating disciplinary system sional in utter method of ideas is would be if chaos violations could be defended on the ‘a law unto itself’ and that law must reflect contrast, sages, age 3. The case cited the Court contains the fol- are 'in the air’. In an radio, lowing scarcely omnipresent statement: there breathes part a citizen who some does not know of a significant The fact is that there are differ- heart_ leading cigarette jingle by It is dif- print. ences between the electronic media and impact ficult to calculate the subliminal F.C.C., As the court noted in 132 [v. Branzhaf pervasive propaganda, may which 14, 1082, U.S.App.D.C. F.2d 405 1100-01 to, may heard even if not listened but it rea- 842, 50, (1968) cert. den. 396 U.S. 24 sonably thought greater impact than the 93], messages L.Ed.2d written are not commu- read, the written word. reading nicated unless re- Co., Broadcasting Capital F.Supp. at 586. quires an affirmative act. Broadcast mes- natures, values, abuses, chose, ‘differing defendants could well be method.”) dangers’ of each misled them. We think the situation is exactly supreme what the United States “special problems” It is in view of these had in mind when it court referred argues ways the committee two “special problems” in ad- electronic media public might it which feels the be misled4 vertising. challenged We think the rule First, by defendant’s television ads. the ad clearly falls within the area left to us states that certain cases are handled on a opinion. the Bates percentage basis and there is no other charge for initial consultation. com The court has said that the state peo mittee thinks these statements mislead regulate types can those ple believing pursuing into the listed intrusion, intimidation, result in which over points cases is a It cost-free venture. out reaching, or undue influence. See Ohra “conspicuously” the ads are silent lik, 462, at 436 U.S. 98 S.Ct. at regard payment expert witness A regulate L.Ed.2d at 457. state can ad litigation. and of other costs of fees inherently likely vertisements which are defendants, committee asserts like the de deceive, experience proven fendant in Ohralik Ohio State Bar As R.M.J., to be to abuse. See sociation, 98 S.Ct. at 202-03, U.S. at 102 S.Ct. at contingency 56 L.Ed.2d at used the fee at 73-74. as a lure: The court Bates condemned those ad- emphasized He that his fee would come vertising rules which amounted to restric- recovery, thereby tempting out of the tions on the flow of “relevant information young women with what sounded like a needed to reach an informed decision.” cost-free and therefore irresistible offer. way The second the committee thinks posi- L.Ed.2d at 829-30. The committee’s defendant’s ads are stems from tion is that the Bates rationale does thought the statements which are to be apply to irrelevant information. Informa- self-laudatory comment on the advertisers’ relevant if it tion is not makes no contribu- expertise. argued The committee that the making. tion to informed decision In other experience repre- firm’s did not match their words, prohibition of such information does sentation: advances, impede, and in fact the fos- way expe- Defendants had little in the of tering making rational decision of and rience when the commercials were broad- maintaining professionalism. of the bar’s graduation school, cast. After from law the ads here We think would not aid cases, Humphrey

Mr. had tried six the making public the in the informed unknown, decision nature of which are all while protection recog which is to the supervision under the of another Des holding in This nized Bates. was the Moines firm. Mr. virtually law Haas had experience. Bishop v. Committee on Eth Together, no trial defend- Professional 1219, 1229(S.D.Iowa ics, F.Supp. 1981), Humphrey 521 and Haas had tried ants rejected challenge a one case. similar to our rule, it relates to advertising. television suggesting Without the advertise- deceitful, gist ments here agree Bishop holding, were we do The the as we that, understand, with the committee promotional the medium is that electronic (b) proposed professional likely unjustified expecta- 4. The model rule of is con- to create an misleading" achieve, lawyer duct 7.1 defines a "false or commu- about results tion the can or nication as implies follows: states or that the can achieve by results means that violate the rules of A communication is false or if it: law; professional conduct or other (a)contains or misrepresentation a material (c) compares lawyer’s law, the services with oth- necessary fact a or or omits fact services, lawyers’ comparison er unless the the make materially misleading; statement considered as a whole not factually can be substantiated.

571 prohibited. are, degree, was self-laudatory, can be This to some and understanding when and our we considered that all defendants’ ads are no more self- in- adopted our rule. It is no laudatory than the information allowed un- advertising industry, sult the or to der the rule. commissioner also fears that, media, their electronic to believe when against prohibition the “self-laudatory” lawyer, efforts are on behalf combined of a up sets inherently subjective statements an a line can and should drawn between can standard that result in inconsistent promotes what informs and what the treatment identical conduct. lawyer. thought the We the cases we explained vagueness We the standard in allowed, encouraged, discussed even us to Incorporated City Denison v. Cla carefully draw such a line and we tried to baugh, (1981): N.W.2d 751-52 way draw it in such a that the would A civil statute unconstitutionally is be informed and not misled. We think the vague process under due clause of rule is constitutional. the fourteenth amendment of United perhaps unnecessary, III. It under States language constitution when its explore analysis, state interests convey sufficiently does not definite involved. think We do the state interests proscribed conduct, warning of when challenged provisions of the rule understanding measured common recog substantial. such interest One Thus, practice. [Authority.] per- when rational, fostering nized in intelli Bates: necessarily guess sons must at the mean- gent, voluntary making decision in de ing of the statute applicability, and its termining the need services unconstitutionally vague. statute selecting lawyer. [Authority.] However, statute is not ‘[a] S.Ct. at L.Ed.2d at See vague the meaning when of the words R.M.J., 200-01, 101 at also fairly used can ascertained refer- 936, 71 L.Ed.2d at 72-73. We think statutes, similar judicial ence to other directly rule advances state interest determinations, law, common referenced aiding making intelligent citizen dictionary, or to the or if words them- selection of counsel. generally selves have common and ac- reject IV. We defendants’ contention Donner, cepted meaning.’ State against prohibition background (Iowa 1976). N.W.2d sound, multiple displays, visual dramatic simple phrase “Nondramatic voice” is a statements, self-laudatory statements think is commonly which we understood. is more than serve extensive dictionary meaning “laudatory” All prohibited state interests. that is praise.” “expressing Websters New Inter- are the manipulate tools which would (1964). Dictionary, national third ed. viewer’s mind will. vague. terms are not agree Neither do we with defendants’ they “laundry criticism of what call our unnecessary It is to discuss defend approach. specifically list” We dis- allowed ants’ that we de counterclaim asks necessary to semination of all information clare rule to be Be unconstitutional. seeking selecting assist the find that the de cause we rule withstands mentioned, previously proce- counsel. As challenge, we fendants’ constitutional order place considering sug- dure any for issue, restraining that a writ defendants gested useful additions of information. continuing place from the advertise Neither find merit in do we defendants’ ments. brief, vagueness defense. their defend- WRIT ISSUED. why they ants fail to mention “non- believe are “self-laudatory” dramatic voice” and

vague brief, phrases. except In its amicus how- All concur LARSON and Justices ever, McCORMICK,JJ., that F.T.C. asserts all advertisements who dissent.

LARSON, (3) (dissenting). Justice regulation Does this directly ad- governmental vance that interest? laundry believe the list of allowable (4) regulation Is the more extensive unnecessarily content re- necessary than to serve that interest? prohibits strictive because it dissemination of basic information in- for an See Central Hudson Corp. Gas & Electric judgment formed about the selection of an Commission, v. Public Service 447 U.S. attorney protection and the of basic 557, 566, 2343, 2351, 100 S.Ct. rights. As to the restrictions on tech- 341, (1980). nique, prescription these are in fact a Although majority recognizes dullness, music, prohibiting background all test, opinion Central Hudson does not dramatization, and other methods of stimu- make it clear pro- whether first amendment lating undisputed viewer interest. It is tection is unavailable for the defendant’s that the effect of these limitations on tech- they advertisements because are “mislead- nique substantially is to diminish the effec- ing” segment under the first of the test or advertising. tiveness of television The whether there is a substantial state inter- combined effect of the rules is to inhibit est directly which is advanced those dissemination of relevant information with- regulations steps under two and three of showing out a of a substantial state inter- Central Hudson test. believe the speech est. This violates the free clause of majority shaky ground is on under either the first amendment. approach. outset, lawyers At accept we as must reality despite perceived as I. Are the Advertisements “Mislead- “professionalism” bar, sault on the of the ” ing. despite exemption of commercial interesting It is to note that the Commit- speech previously existing, lawyer advertis expert, Haynes, tee’s own Dr. testified the here, ing is and it is here in constitutional ads misleading, were not fact and that dimensions. It is here because of the Su survey his group, actually which had preme interpretation of the free ads, agreed. viewed the The Committee’s speech clause of the first amendment of argument is, fact, are deceitful the United States Constitution in both argument they might mislead the Arizona, Bates v. State Bar respect possible viewer responsibili- (1977) 53 L.Ed.2d 810 ty for respect court costs and with and In re R.M.J. 455 U.S. experience extent Humphrey of the (1982). 71 L.Ed.2d 64 Haas, argues which the Committee is mini- protection First amendment of commer- mal. speech, cial not as while extensive as that majority specifically concludes that speech, accorded other forms of is never- deny chance of deceit is sufficient to reach, theless broad in princi- its and the protection “[wjithout first amendment sug- ples applied quite straightfor- gesting that the advertisements here were ward. Central Hudson sets forth the deceitful” because “in the medium defend- four-part apply: test we must ants chose could well [television] (1) Do the ads concern an unlawful improvises be misled them.” It on the activity, they misleading? or are If the four-prong test of by say- Central Hudson question answer to either is in the af- ing medium, that because television is the firmative, protection first amendment mere of chance deceit is sufficient. That not allowed. If the answers to both however, theory, is suggested not in Cen- questions negative, are in the the follow- tral nor in any Hudson other case. ing apply: tests

(2) governmental interest, Is the as- majority support draws for this theo- through rules, serted disciplinary ry solely these language from taken from Bates which, substantial? majority says clearly the “seems to

573 imposition discipline permissible the use of of recognized electronic —are particular [sound, displays, advertising where the is inher- visual dramatization] Bates, likely ently potentially misleading.” how to deceive or the where ever, say potential particular record did there more indicates form or not was advertising, only has in advertising method of for abuse in electronic been fact problems deceptive. special that “the of special on the electronic media will warrant 202, 937, Id. at 102 S.Ct. at 71 L.Ed.2d at 384, at 97 consideration.” 433 U.S. added.) (Emphasis 73-74 2709, 53 Neither S.Ct. at L.Ed.2d at 836. A further indication that than a more Bates nor the case it cited on issue required possibility of deceit would is be potential of even mentioned increased prior in found discussion of two R.M.J.’s the electronic media for the in protection cases which first amendment Capital Broadcasting Co. v. public. See professional advertising denied was Mitchell, (D.C.1971), F.Supp. 333 582 aff'd v. discussing In Ohralik Ohio solicitation. nom, Capital Broadcasting sub Co. v. Association, 447, State Bar 436 U.S. 98 Kleindiest, 405 U.S. 1000, 1289, 92 S.Ct. 31 1912, (1978), S.Ct. 444 (1972). Capital Broadcasting L.Ed.2d 472 ‘fraud, R.M.J. Court said “the possibility “special problems” illustrates the sort of influence, intimidation, undue over- referred to in Bates in connection with reaching, and other forms of con- vexatious advertising. Capital Broadcast television likely in duct’ was so in-per- the context of ing justified different rule for television son solicitation” that such solicitation could advertising, likely to because it was be prohibited. R.M.J., 202, 102 be misleading, nonselec- but because it was 937, (Emphasis at 71 L.Ed.2d at 74. S.Ct. effect, thought tive. In to television was added.) Similarly, Friedman discussing in audience; large reaching chil too 887, Rogers, 440 U.S. 59 S.Ct. dren, being exposed to intensive who were (1979), L.Ed.2d 100 the Court noted that cigarette advertising, were considered like protection use of first amendment on the ly adversely to be it. affected optometrists trade names Texas could prohibited “in view of the considerable lawyers, advertising by Television on the history deception Texas and abuse hand, objection- other cannot be considered upon consuming public through worked merely able is because television nonselec- R.M.J., use of trade names.” 455 U.S. tive, Capital Broad- and the rationale of at 71 L.Ed.2d at 74. at casting inapposite. Yet, majority is added.) (Emphasis Bates’ “special problems” seizes on lan- guage used connection Court’s R.M.J., Oh- discussing The Court in after Capital Broadcasting reference to as au- Friedman, ralik summarized rule: thority power for its broad assertion particular content or method “[W]hen restricting advertising. I television do not inher- advertising suggests that it language think this Bates intended ently misleading experience or when has grant to such a broad of state exercise proven fact power. abuse, impose may the states R.M.J., appropriate restrictions.” U.S. I actually believe the at at 74. L.Ed.2d regardless made it of the medi- clear R.M.J. involved printed advertising. There used, advertising um must be more than no indication that different rule would “possibly” misleading in order be denied yet apply advertising, to television In re protection. first amendment attempt not even to meet Committee does R.M.J., test. (1982), L.Ed.2d 64 the Court addressed advertising: matter of untruthful accept Even if I plaintiff’s were argument, possibility-of-deceit Court has made clear in Bates and do [T]he not, subsequent regulation cases that believe the record here still falls —and matter, establishing any short of any reasonable likeli- other matter relevant to happen. hood that this lawyer's employment, would the terms of a would logically be resolved at the initial confer- majority points aspects The to two of the ence, which, case, in this advertised “might advertisements which it claims well being free of cost. See (1) misleading: be” the statement that cer- n. 97 S.Ct. at n. percent- tain cases will be handled “on a (1977). L.Ed.2d at n. 28 age” basis without mention of court costs might be construed as an offer of “cost- majority’s I believe conclusion that according free” majority; services lawyers’ the advertisements overstated the (2) and the advertisements could be con- qualifications support is also without in the expertise by strued as a claim of Hum- evidence. While the record revealed that phrey Haas which fact is belied young lawyers just developing these were experience. their lack of actual practice, evidence, a law there is no nor claim, they even a were fact not issue, As to the cost it is true the adver- qualified. experi- While lacked the tisements state that fees will be assessed many lawyers, they ence of older did have (without percentage stating on “a basis” experience listed, some in each of the areas rate) percentage but do not mention court they possessed and the evidence showed require concerning costs. To a statement average qualifications. above academic costs, however, go beyond would our own majority The Committee and the seem to rules, merely require which it equate qualification experience, specifies contingent the event the ad simply there is no direct correlation. fee rate. Even then the advertisement is believe the claim that this could “well be” merely required per- to disclose “whether misleading plainly false and sup- is without centages computed before or after de- port. DR2-101(C). Here, duction of costs.” See represent contingency defendants no II. The Argument. Public Interest all, only rate at that the fee would be “a also, percentage.” Significantly, DR2- If activity concerns a lawful 101(C) “[fjixed allows a to advertise and is not under the Central range specific legal fees or of fees for test, (1) may only Hudson a state restrict if costs, services” without a caveat about de- governmental substantial; interest is spite many the fact that “specific of the (2) regulation directly advances that legal listed, dissolutions, services” such as governmental interest; (3) the restric bankruptcies, and several real estate ser- tion is no more necessary extensive than vices, necessarily would involve either Hudson, serve interest. Central recording court costs or fees. 566, 100 atU.S. S.Ct. at 65 L.Ed.2d at imposed believe the restrictions Supreme Court, moreover, ap this case fail that test because the Commit parently not considered a cost caveat to be tee has not showing made the necessary for a full disclosure on fees. a substantial state See, interest. 194, 3, e.g., In re R.M.J. 455 n. U.S. at 933, 3, 102 S.Ct. at n. 71 L.Ed.2d at n. 3 majority concludes that the state-in- (fees may “routine” services terest only secondary, stating issue is “[i]t advertised; costs). no mention court perhaps unnecessary, analysis, under our explore matter, practical As a state interests involved.” subject costs, “analysis” majority says court affected extent of dis- covery myriad factors, unnecessary makes it of other to address the issue so complex impractical apparently as to make it to ex- that the advertisements are plain thirty-second actually misleading in a prong advertisement. under the first (Testimony thirty-second test, showed a of the ad to Central Hudson therefore not words). sixty consist of about Fur- protection first amendment thermore, any understanding regardless lack of supporting about of a state interest. Hudson, provide 100 ble information, See Central to an excess of 2350, 65 at 349. S.Ct. at L.Ed.2d rather sophisti- than too little. Viewers are enough accept reject cated to or they it as noted, however, already As I the see fit. actually even to ads are not claimed be any possible and of misleading, risk mis- Broad areas of information to certainly leading is not sufficient minimal— judgment prohibited by informed are justify to of protec- denial first amendment In present case, rules. the the adver- considering tion without even the in- state that, tisements inform the viewer if one is believe, fact, analysis terest. I in the of through negligence others, hurt the of he pivotal state interest is the issue in this a imply should see that recov- case. ery might for losses be obtained. One majority What is that interest? points rights advertisement out legal that only one in support identifies of the restric- may lost to lawyer. failure talk to a rational, “fostering tive intelligent, rules: many types These and other of information voluntary making decision in determin- including, obviously, most such matters as ing legal the need services and select- limitation, of early filing statutes the re- ing lawyer,” citing a Bates R.M.J. quirements act, of our tort claims and the however, interesting, It is that both problems of uninformed releases of claims language Bates and R.M.J. used this to great importance are all of to an informed expand scope lawyer advertising, the of not these, decision of the viewer. Yet and all to throttle it. general other items information on the Moreover, strong there is a state interest rights litigants prohibited by are the in essentially by-product what is a of attor- rules, not because included the ney advertising. This is the need for mem- “laundry list” of contents. public bers of the to be informed about the believe the state interest served legal nature rights of their and the means type outweighs any of information far in- of pursuing them. As the denying terest it. Bates and R.M.J. said, has it would be unusual to meet the present clear make it that methods deliv- need for judgments by more informed re- ering services are In ineffective. ducing scope of available information: Bates, the court said: Advertising provide complete does not foundation on which bemay to select an The absence of seen attor- ney. it peculiar deny But seems to profession’s reflect failure consumer, ground on the that the infor- community: out and reach serve incomplete, mation is at least some of many persons Studies reveal that do not relevant information needed to reach an they perceive counsel when obtain even decision_ Moreover, informed ar- price need feared of ser- because gument assumes that the not an inability vices because of to locate sophisticated enough to realize the limita- competent attorney. Indeed, cynicism advertising, tions of regard profession may with kept ignorance is better than trusted pub- long created the fact it incomplete with correct but information. licly advertising, eschewed while condon- suspect We argument rests on an ing attorney the actions of the struc- who public. underestimation of his social so tures or civic associations event, any justifica- we view as dubious provide potential contacts clients. tion based on benefits 370-71, Id. at at L.Ed.2d public ignorance. at 827-28. 374-75, at S.Ct. at American Bar Association statistics cited providing 53 L.Ed.2d at 829-30. In infor- of our mation of an Bates show that the “middle for the formation informed 70% judgment, being prefera- population it seems to me that it is served reached or reason, Id.

adequately by [legal] profession.” additional believe the restrictions imposed 97 S.Ct. at 53 L.Ed.2d at 831. here fail the test of constitutionali- ty. Iowa, study a recent shows that there Legal Corporation injunction grant one Services law- I would dissolve the yer eligible recipients. Equal for each 8700 judgment for the defendants on their coun- Study, Legal Access to Services Services terclaim. (1984). Moreover,

Corporation of Iowa many points of the traditional of contact McCORMICK, J., joins this dissent. clients, lawyers potential between country Rotary

as the club or Club are

simply preliminary not viable sources of

legal great segment information for a population.

I believe the thrust of the Rule 2-101

laundry largely point list misses the public information. What difference does Iowa, Appellee, STATE of potential litigants it make to when the law- born, fraternities, yer legal socie- lawyer

ties or association bar of which MUNZ, Appellant. Thomas Arthur (especially membership is a member since No. 69378. usually any required is not based on level professional competency) or whether the Supreme Court of Iowa. lawyer military has had service? This is Sept. information, relatively unimportant in view possibility litigants might of the lose claims, information, through

their lack of

to a statute of limitation or other

impediment they igno- as to which remain

rant. rules, believe our insofar as ban misleading, which is false or basically

are valid. This is the model rule

of the American Bar Association1 and the that, Beyond

rule of most states. I believe

the additional restrictions of our rules fail

the state interest test and are therefore

invalid. believe, moreover, the model rule

illustrates the “less restrictive” means of Hudson, Central

control alluded to

that the Committee has failed to show that

they would not be effective here. For that (b) Concerning likely unjustified expectation

1. RULE 7.1 Communications to create an achieve, Lawyer’s lawyer Services about results the can or implies lawyer states or can lawyer A shall not make a false or achieve, lawyer implies or or that the states lawyer’s communication about the or the can achieve results means that violate the services. A communication is false or mislead- law; professional rules of conduct or other ing if it: (a)contains misrepresentation a material (c) compares lawyer's law, services with other fact or or omits a fact services, lawyers' comparison unless the can make the statement considered as a whole factually substantiated. materially misleading;

Case Details

Case Name: Committee on Professional Ethics & Conduct of Iowa State Bar Ass'n v. Humphrey

Court Name: Supreme Court of Iowa

Date Published: Sep 19, 1984

Citation: 355 N.W.2d 565

Docket Number: 69088

Court Abbreviation: Iowa