*1 Disciplinary Proceedings the Matter In Against L. Jack & Jerome A. Tepper, Marcus
Attorneys at Law.
Supreme Court Argued April 27, No. 80-259-D. 1982.—Decided June 1982. (Also reported 806.) in 320 N.W.2d *2 Attorneys Responsibil- For the Professional Board argument by H. ity oral there briefs and Robert were Bichler, of Racine. by A. a David Sai-
For Jack there was brief Marcus S.C., Hertel, Jr., Bertel, chek, Theodore B. & and Saichek argument by Saichek. David A. Milwaukee, and oral by Robert E. Tepper was a brief For Jerome there Kelly, argument by both of F. and oral Walter Sutton Milwaukee. complaint
DAY, proceeding; Attorney disciplinary J. dismissed. Attorneys Profes- appeal is an the Board
This Board)1 an order Responsibility (hereinafter from sional dismissing complaints professional the referee L. Marcus against respondents Jack filed misconduct respondents).2 The Tepper (hereinafter A. and Jerome 1 dated Novem court of this was created an order The Board amended, codified, as xi, 5, 1976, published 2d at 74 Wis. ber charged of the with the enforcement is SCR ch. 21. The Board public from protect Responsibility and to Code of Professional by attorneys. professional misconduct publication complaint giving was the rise to conduct Supreme alleged violation to be in certain advertisements lawyer order governing advertising, contained in rule Court rule 23, 1977, published 2d xxvii. The at 81 Wis. dated December stated: lawyer January 1978, year period beginning “For one lawyer’s availability provide It is services. advertise the published found
referee that certain advertisements on respondents impres- behalf of did not create an overall false, misleading sion that deceptive was or and that the Board did not specific establish that of the state- false, misleading ments in the advertisements were or deceptive complaint and so dismissed the on its merits. We affirm.
The first issue in this is case allocation of the bur- proof attorney den of charged profes- when an is publishing sional misconduct for an advertisement which allegedly “false, deceptive” in violation Responsibility. Respondents of the Code of Professional argue required the Board is to establish that question false, misleading deceptive, ads in were urges upon while the Board the burden the at- *3 torneys placed prove veracity. who to the ads their We proving hold that the Board must bear the of burden misleading false, deceptive. that the ads are or “false, question is, The second were the ads mislead- ing urges they deceptive.” were, Board ads, proof based on the contents of the at submitted hearing knowledge practice and from the court’s of the agree of law. We with the referee that there is no show- ing that the ads were violative of the Code. 1978, respondents law firm under the
In established a Tepper. and Mr. Marcus is a 1967 name of Marcus University graduate Marquette Law School who had of graduation. practiced He was the law his since charge firm and of ad- principal investor in the was graduate vertising Tepper, a finances. Mr. lawyer any advertisement professional for to use misconduct a deceptive.” false, is which 20.08(7) (a), predecessor which of current SCR This rule is reads: Letterheads, Notices, 20.08, Law Professional Officer and “SCR lawyer may lawyer’s (a) (7) ... A advertise avail- Lists. provide legal except ability services use advertisement deceptive false, misleading, professional or unfair mis- which conduct.”
Marquette University School, Law who had been en- gaged graduation, practice the active his law since responsible provision was for the actual services. graduates The firm hired law who two recent school supervision Tepper. worked under of Mr. Linda Rothman, graduate University Marquette a Law School, experience prior attorney had no an had as but internship County Corpora- served the Milwaukee Office, work, supervised tion where she had trial done primary and had clerked for a law firm. Her Milwaukee responsibilities client and divorces. were consultation supervision Tepper, did She worked under the of Mr. graduate University Newby, of Wis- Jane a recent responsibili- Newby’s primary Law consin School. Ms. counselling, preparation ties were the areas client probating of wills and estates. practice develop attempted serv-
The firm a' volume accomplished ing to be middle class clients. This was through A fee and fixed the use of fees. num- fixed schedule was which set fees established bankruptcy, legal matters, including adoption, ber of closing, change, divorce, real estate uncontested name legal mat- For preparation offenses. will traffic set, the firm would had which fixed fee been ters for no upon estimated based the time set fee fifty require, a rate of dollars calculated at work would underestimating the risk of per bore hour. firm not ex- and would perform the service required time *4 handle would also The firm had set. the fee which ceed contingency thirty percent injury personal for cases fee. pro- which form basis
The advertisements Journal ceeding the Milwaukee published were October, through 1978. August from Sentinel Milwaukee advertisements, of which both different two There were versions. page ads and smaller full appeared as “meter to as ad, will be referred which first registered meter of a taxi ad,” photograph had seventy forty-five cents, a fare of nine fol- dollars and paragraphs lowed several of text. subsequently “high replace
The ad was modified to legal expertise” “high professional- level with level ism;” “simple will;” will” “individual and “aver- age saving “average saving of one-half or more” with quite which is substantial.”3
565 HIRE A LAWYER TO HOW A RIDE. TAKEN FOR GETTING WITHOUT retaining frustrating things attorney. Few Because are as you meter starts to walk into their office the the minute exceedingly justice slow, can turn And the wheels run. since your spiral to fast. bill can start charge by hour, lawyers traditionally But since It isn’t fair. recently you until had little choice. lawyers practice preach. we Our what anything high justice today we is candor, In all believe cost of just. but lawyers compensated on the basis of what We believe should be long do it. clients they should Not it takes them to We believe do. how going Long they their case is to cost. before be told what good we that a law firm can afford receive a And believe statement. rewarding. charge financially inexpensive still fees, to and be willing practice. more, put we’re to our beliefs into What’s Why lawyers other will hate this ad. thing you you’ll notice Tepper, come to Marcus and first When high The second is our schedule professionalism. is the level prices. cases, most fixed determined the task at hand. Not In fees average saving one-half, At an and more. the hands of a clock. An specific, our fee for an uncontested Divorce is To be $275. (Exclusive simple a mere Adoption normal And a Will is $150. $30. course.) buying house, costs, you're And if a court regardless saving closing $100, cost of the cost of the home. A quite substantial. anything regular-priced lawyer does, Tepper short, In a Marcus and good do. it a less. will And we’ll do for deal eharge. do, we the less we more wondering high you’re If how we can maintain such a standard rates, simple explanation. work at such unstandard there’s lawyers to for clients to come Most content wait unsolicited they pay spend them. So their clients have to time wait- to ing. Tepper. so Marcus Not aggressively generate high volume We believe to staying evenings get Saturdays it open of work. And done. price we tend lower we can do, And the more business charge. equitable Which more for all. afford to makes biggest your problem law, Because when it comes your lawyer. shouldn’t Marcus Copyright All rights & © Tepper reserved. September Attorneys, [1978] Milwaukee, Wisconsin. Attorneys Tepper
Marcus At Law & [5325] W. Burleigh, Milwaukee, Wis. 449r9700 Hours: Mon. and Tues., Saturdays Wed. and Fri. until Noon. Thurs., 8:30 to 8:30 to 8 P.M., P.M., *6 to as the “hands ad, which will referred The second rope photograph around ad, of a tied” showed paragraphs of followed several wrists of two hands text.4 PRICES, THEIR
WHEN IT COMES TO LOWERING TIED, ARE MOST LAWYERS’ HANDS charge, lowering they lawyers’ most prices When it comes hands are tied. high. And is al- low. their overhead Their rent Their volume is regular sight. you when most out of Which means that retain going way pay price. attorney, you’re one another charge traditionally time It fair. But since law firms isn’t they’re expensive. little wonder so expenses, it’s paying your in 1st alces? Are firm’s you law lawyers’ some fees are so we one reason Simply put, believe high. great, because their overhead is so enough keep your way to to know there’s no smart We’re way your of line. So before prices check, expenses when out open eyes. opened we our we decided our doors, ever looked downtown rents. We a look at extra cost of We took extravagance we saw all at And after client entertainment. we fancy chairs, and the we knew how could the trim the rates. desks overstuffed *7 And trim rates we did. our competitive prices. work at Competent thing you’ll the find is you Tepper, come to and first Marcus When lawyer. competitive The competent prices. a second is by cases, fixed fees the task hand. Not In most determined at average saving quite At is substan- of a clock. an hands tial. fee is An specific, our for an uncontested Divorce To be $275. (Exclusive And a a simple Will is mere Adoption $150. $30. course.) buying you’re costs, house, if a And normal closing court regardless the cost of the home. $100, cost anything regular-priced lawyer Tep- and short, does, a Marcus In good do less. per And we’ll it for a deal will do. fit Why lawyers be tied. some to thing lawyers more our reasonable one some resent than If there’s page promote What’s more way we them in full ads. rates, they’d it’s the end put practice. like to to disagree. strongly Tepper, we Marcus and At generate advertising high aggressively volume to a believe We gets staying evenings open Saturdays and to see And work. done. we can do, price the more business we tend to the lower And charge. equitable all. Which makes it more afford justice may eyes it’s ex- law. But all, be blind in the After lawyer. a pensive in. hands of Marcus & All Copyright rights Tepper Attorneys, © reserved. November Milwaukee, Wisconsin. Attorneys Tepper At Law
Marcus & Burleigh, Milwaukee, Wis. 449-9700 5325 W. Thurs., PM; Hours: Mon. and 8:30 until 8 Fri., Tues., Wed., and 8:30 to 5. Saturday til Noon. attorneys Several complained orally writing and persons associated with the Board and various as- bar sociations that the Following ads were pre- offensive. liminary investigation, complaint the Board filed a with charging respondents this court professional mis- causing conduct for published to be a false, deceptive and appointed ad. This court Hon. William C. Sachtjen, Judge, hearing Reserve A as referee. was held May 27,1981. on 26 and hearing,
At that counsel for the Board introduced ads and the fee schedule of the law firm. The Board’s case consisted of documents, excerpts above from interrogatories answers deposition and a of Mr. Mar- cus, testimony Tepper, of Mr. who was called adversely. following evidence was adduced. The ads were
formulated Mr. Marcus and an executive. Mr. Marcus based the statements in the ads on his law experience, and business and on conversations with other attorneys. any specific He could not recall sources of the Tepper prior information. Mr. reviewed ads to their publication approved them.
The Board introduced no other wit- evidence. Two respondents. nesses testified on behalf of first was Thain, professor Professor Gerald of law at the Uni- *8 versity of Wisconsin Law School. Professor Thain had attorney an been with the Federal Trade Commission responsibilities advertising by whose included review of making national advertisers initial determination advertising to whether the as was unfair or otherwise contrary regulations. appeared to trade has He twice adoption court in before this connection with the of rules governing attorney advertising. Thain Professor stated degree advertising probability, that “to a reasonable of misleading false, the ads were not deceptive.” or Respondents attorney Brown, also called the James director of the Mil- Center Consumers Affairs president waukee. Mr. Brown is Con- the Wisconsin League represen- sumers and has served as a consumer that, tative on state bar committees. He stated based upon experience attorney his con- as a Milwaukee misleading advocate, “false, sumer the ads were not deceptive.” Tepper testified, behalf,
Mr. that own also on his seventy-five eighty percent business was to the firm’s items did that those items listed the ad and represent fifty savings fees percent from the usual charged by testified He attorneys services. for those high quality provided a that believed the firm he that particular that a representation, if he felt that but they have, did not expertise that the firm case called for Tepper also Mr. the case to outside counsel. would refer complained had that, no client knowledge, to stated his provided by firm. of the services Judge Sachtjen, referee, hearing Following findings containing twenty-eight page report, issued law, and ordered conclusions of fact and ap- Board its merits. complaint dismissed on be pealed this court. to issue impression to the as first is a case of
This urges us advertising Board attorney in this state.. attorney so governing interpret rule proving attorneys the burden place upon they veracity in advertisements of statements that, argue in order Respondents published. cause to profes- engaged in finding they have support a the ads prove that misconduct, Board must sional must determine first deceptive. We false, establishing truthful- burden bear the who should wheth- ad, determine and then thereof of the lack ness or *9 570
er party upon whom the burden rests has sustained that burden. part
The rule ais of Respons- the Code of Professional ibility. Generally, disciplinary in proceeding, the state showing has the burden of a violation of the Code of Responsibility by Professional satisfactory clear and evi- dence. State v. Wildermuth, 476, 481, 76 Wis. 2d 251 (1977). N.W.2d 779 The rule at issue does not ex- plicitly proof. argues allocate the burden of The state the traditional burden should be shifted adver- tising difficulty enforcing cases because rule if the state must Furthermore, shoulder the burden. requiring attorneys to ascertain the truth of advertise- they place ments appropriate light at- torneys’ status as officers of court. interpretations rule,
Given a choice of reasonable
of a
this court should select a construction which
renders
rule
539,
constitutional. Basinas
State,
v.
104 Wis. 2d
546,
;
(1981)
Strykowski
restriction the dissemination of on by accomplished rule constituted a violation was notwithstanding amendment the substantial the first regulating attorney advertising. The interest in state specific Supreme also held that Court United States speech pro- advertisement constituted statements States Con- the first amendment the United tected at 433 U.S. 381-82. stitution. explicitly
The Bates decision did allocate the bur- not arising disciplinary proceedings out of proof den of pre- lawyer Publicity (A) not shall in General. A “DR2-101 of, any prepared, use, participate use or in the pare, be cause to professionally public self- contains communication that form lay clients; as used laudatory to attract statements calculated includes, to, herein, ‘public is not limited com- but communication’ picture, radio, television, news- motion means munication paper, magazine, or book. publicize partner, lawyer himself, or “(B) his asso- not A shall advertisements, lawyer through newspaper magazine or ciate as city announcements, display advertisements or radio television publicity, directories, telephone or means of other commercial permit others to do in his behalf. he authorize so shall nor by attorneys. However, following advertisements passage concerning allegation the ad was mis- leading change because did not disclose that a name accomplished could attorney implies without an sufficient evidence support must be introduced to a find- ing that improper justify the advertisement in order to discipline. “The does unambiguously record some reveal determining relevant whether nondis- facts *11 misleading, closure complicated pro- such as how provides cedure is and whether the State assistance laymen. deposition appellant, however, one of re- re- change flects that when he ascertained that a name quired only the of a correction record or the he fre- like, quently change would send him- the client to effect the App. self. 112. “We not been conclude that has demonstrated that suppressed.”
the advertisement at could 433 issue be (Emphasis added.) at U.S. 382 Supreme recently
The United States
Court
clarified
permissible scope
regulation
attorney advertising
of
of
R.M.J.,
In
U.S. -,
the Matter
Ed. 2d
455
L.
71
of
case,
attorney
(1982).6
pub
“1. ‘Administrative Law’
“2. ‘Anti-Trust Law’ ‘Appellate “3. Practice’ ‘Bankruptcy’ “4.
“5. ‘CommercialLaw’ ‘Corporation Organizations’ “6. Law and Business “7. ‘Criminal Law’ “8. ‘Eminent Domain Law’
“9. ‘Environmental Law’ ‘Family Law’ “10. “11. ‘Financial Institution Law’
“12. ‘Insurance Law’
“14. ‘Labor Law’ “15. ‘Local Government Law’ ‘Military “16. Law’ “17. ‘Probate and Trust Law’ ‘Property “18. Law’ Utility “19. ‘Public Law’
“20. ‘Taxation Law’ “21. ‘Tort Law’
“22. ‘Trial Practice’
574 among categories permitted by the The ad- the rule. special failed to
vertisement also expertise include of a disclaimer required by areas, in those rule, as the attorney practice stated the was to before “admitted Supreme pro- Court,” the United States was not vided for the rule. Advisory Supreme The the the Court of Committee of enforcing charged Missouri, of
State which was with the charged Responsibility state, of Professional Code in that attorney unprofessional the The Missouri conduct. Supreme upheld constitutionality rule Court the of the privately attorney. reprimanded the In the Matter (Mo. 1981). attorney of R.M.J., 609 S.W.2d petitioned Supreme for review Court United States Supreme of that decision. The granted States Court United petition and, decision, re unanimous Supreme versed Missouri Court. majority opinion, Powell, who authored Justice interpreted holding Bates, had of that dissented in case as follows: “Thus, in Bates and Court made clear subse- has quent regulations imposition disci- of cases that —and advertising
pline
permissible
particular
where
—are
inherently likely
indi-
or where the record
deceive
advertising
particular
that a
or method
cates
form
speech
deceptive.
doc-
. .
in fact
has
been
.Commercial
advertising
professional ser-
trine
vices,
ful
the context
generally
Truth-
follows:
summarized
be
entitled
lawful activities
related
of
protections
But when the
First Amendment.
Compensation Law.’
‘Workers
“23.
permitted and
phraseology
above
“No
from
will
deviation
practice can
be stated.
of limitation
no statement
practice
specific
are used
“If
or more of
areas
one
these
following
.
. .
advertisement,
included.
must be
statement
any cer-
‘Listing
practice does not indicate
the above
areas
”
(Adv.
4,
expertise
Addendum
Rule
therein.’
III
tification
L,
68-69,
at 932-33.
Ct.
1977).
Ed.
102 S.
at
Nov.
2d
Comm.
*13
particular
suggests
advertising
content or
method
the
inherently misleading
experience
that it is
has
when
proved
subject
abuse,
that
fact such
to
is
may impose appropriate
the states
Mislead
restrictions.
ing advertising may
prohibited entirely.
be
But the states
may
place
types
prohibition
an
not
absolute
on certain
e.g.,
potentially
listing
information,
of areas
practice,
presented
if
also
be
the information
way
.Although
deceptive.
potential
that
not
. .
the
deception
particularly strong in
and confusion is
the
advertising professional services,
context of
restrictions
advertising may
reasonably
upon such
no broader than
be
deception.”
necessary
prevent
the
Ed. 2d at
to
71 L.
73-74,
The Mis United States Court held that the speech upon rule constituted “invalid souri restriction applied appellant’s Ed. to the advertisements.” 71 L. 75, 102 2d at S. Ct. 938. at Supreme Bates, did Court
As in United States the proving party explicitly bore the burden of state which discipline. However, that the advertisements warranted Supreme that “the did state Court the United States listing by appellant published not been shown has 75, misleading.” at 939. 2d 102 S. Ct. L. at Ed. following por- added.) (Emphasis discussion attorney’s proclaimed admission ad which tion Supreme practice also Court States the United before state. to be borne burden is indicates that the large listing, troubling appellant’s more “Somewhat type, bar of of the he a member was boldface Appendix Supreme A. See United States. of the Court relatively emphasis at fact is uninformative of this mis- Indeed, could be a statement such taste. least bad public general leading quirements the re- unfamiliar _ Yet this Court. bar of to the of admission finding Su- to this is no there Missouri_ effect nothing preme record to indicate in the There is Court. misleading. was inclusion information *14 576 Nor specifically does identify the Rule this information as potentially misleading or, example, place for a limi- type tation on require size or explaining a statement Supreme
nature
76,
Court bar.”
The opinion again conclusion of the emphasized the finding absence of a misleading. that ad was sum, “In none of three upon restrictions in ap- the Rule pellant’s rights First can Amendment be sustained in the circumstances of finding this case. There ap- is no that pellant’s speech misleading. say was Nor can we that inherently it was misleading, or that restrictions short of prohibition an absolute would not have sufficed cure any possible deception. emphasize, We as we have throughout thority opinion, that the States retain the au- regulate advertising to or that inherently that mis- leading There proven practice. has to be be other substantial state as But interests well support carefully that will though First and drawn restrictions. al- may regulate speech, states commercial require Fourteenth they Amendments do so with care and in a manner no more than extensive reasonably necessary to further substantial interests. prohibition appellant’s speech, absolute on in the speech finding absence that his was misleading, does requirements.” not meet these 76-77, 71 L. 2d at Ed. 102 (Emphasis added.) S. Ct. at 939. light R.M.J., In interpret (a) 20.08(7) we SCR predecessor requiring its party which is seek- ing discipline imposed to have to bear the burden of proving by satisfactory clear and evidence that the ad- vertisement violates the rule. This is consistent with the proof attorney disciplinary proceedings gen- burden of erally. It is also Supreme consistent with United States concerning constitutionality Court regu- decisions governing attorney advertising. lations require attorneys prove Board asks this court to the truthfulness of statements contained in advertise-
577
authority
proposition,
they
ments.
As
cite three
concerning advertising-
eases
under the Federal Trade
Act.8 The most recent of
eases
decided in
those
was
was over
a decade before the
States
United
Supreme
Virginia Pharmacy Board
held,
Court
v.
Virginia
Council,
(1976),
Consumers
U.S.
*15
speech
protection
commercial
some
was entitled to
under
first
the
amendment
to the United States Constitution.
such,
authority
persuasive
As
not
those cases are
for
allocating
proof
attorney
the burden of
to the
insofar as
upon
that
considera-
allocation
based
first amendment
require
advertiser
tions. The cases also did
the
ads,
prove
of the statements
the
but
truthfulness
merely
Commission,
that
Trade
as the
held
the Federal
inherently
fact,
that
could
the ads were
finder
find
solely
misleading
from
Those
the content
the ads.
shifting
authority
provide
burden of
do not
for
cases
proof
attorney.
onto
inherently
say
question
the ads in
are
We cannot
that
argument
misleading.
as
fixed fees or
The
to whether
charges
public
interest
is a matter
best serve
time
minds
differ.
which reasonable
about
did not
an over-
found
the ads
create
The referee
that
misleading
deceptive.
false,
impression which was
or
all
Board had not established
found that the
further
He
misleading
false,
ad were
in the
the statements
action,
examines
disciplinary
this court
deceptive.
In a
discipline is
whether
de novo to determine
record
481,
476,
Wildermuth, Wis. 2d
76
v.
State
warranted.
Against
Proceedings
(1977); Matter
N.W.2d 779
251
(1976).
636-37,
578 hearing witnesses, given
ducted the
and observed the
are
Proceedings
Sedor,
consideration.
Against
Matter
73
637;
Wis. 2d at
Preston,
588c,
v.
582,
State
2dWis.
(1968),
N.W.2d
The ads They are not on their express face charged many a belief that attorneys the fees higher necessary, is, than part, and that this at least high overhead, inefficiency, due to practice and the charging by the hour. also The ads list the fees which charged particular legal services, the firm and ex- pressed represented average belief that those fees saving of at least one-half. ads also state possesses “high firm expertise.” level of ads, only Aside from the evidence introduced support the Board in of its contention that the ads were false, deceptive, testimony by was Mr. *16 Tepper. He that the firm stated would take certain cases thirty percent contingency charge for a fee and that the types of services for which fixed had not fees fifty per on been set were based a rate of dollars hour. Tepper contingency hourly Mr. conceded that the fee and savings represent compared did not a rate of one-half commonly charged that, fees but Milwaukee stated be- majority of firm’s work cause the vast the consisted of set, for which fixed fees had been the routine services average, that, on firm’s clients he believed the the still savings a one-half or more. realized testimony Tepper, from Mr. Board also elicited The during by Mr. Marcus taken and introduced statements expertise attorneys discovery proceedings, toas the of the that, employed firm. This evidence established experienced who Tepper, attorney, Mr. was an from aside very experience prac- firm had the members of the little ticing apparently law. This was to refute offered you come to Marcus in the ad that statement “[W]hen thing high you’ll Tepper, notice is the level first legal expertise.” any any had proof that did not offer client Board fees, charged clients been than the advertised that more average one-half; savings that did realize an attor- not neys charge hour; generally by the did or that not legal expertise.” possess “high not a level firm did inherently face, not, We find that the ads are on their misleading. supported by the testi- This conclusion is not mony Thain, the ads were of Professor who said that type “false, misleading of ad- deceptive” or this prosecuted. encouraged vertising than rather should be Brown, testimony Attorney who has been James practiced law active in area of law” and “consumer Brown supports Mr. Milwaukee, conclusion. also “false, mis- that, opinion, were stated his ads leading ad deceptive” forth and that the fees set savings represented fifty percent very well have that, if stated for the Mr. also firm’s clients. Brown graduates could properly supervised, law recent school legal expertise. provide high level Furthermore, presented whatso- the Board no evidence lay any or members of ever that clients the firm allega- public were deceived the ads or considered Judge deceptive.” As “false, tions therein Sachtjen stated: proof com- clients “The Board offered no they representation
plained concerning received, the level of *17 any charged. proof of- prices or the Nor was or the cli- any show that client fered which would tend to legal general ex- high a level in received less than ents pertise handling matters.” in of their nothing disputes We which this have found the record conclusion.
Respondent respon- Marcus asks this court hold that attorneys dents are entitled to fees recover reasonable expenses from the decline to We do so. Board. parameters permissible scope regulation of the of at- torney advertising Board, public in flux. The still agency charged by responsibility this court with the enforcing Responsibility, the Code of Professional brought this action and has convinced some members this court that did ads constitute misconduct. We nothing find to indicate that this action was the record frivolity. commenced out malice or Neither is such an governing disciplinary pro- by award authorized rules ceedings. respondents We hold that are not entitled to attorneys costs and reasonable fees. summary,
In we conclude that do the advertisements professional Upon not constitute misconduct. review of advertisements, light intro- of the evidence disciplinary hearings, duced at the we that the ad- find “false, inherently vertisements are not or de- ceptive.” further We conclude that Board has proved, satisfactory evidence, clear and that false, misleading decep- the statements the ad were Finally, respondents hold tive. we are not entitled expenses attorneys recover their and reasonable fees from the Board. complaint against
It is therefore ordered that the Jack Tepper, L. Marcus A. and Jerome be dismissed on its merits.
BEILFUSS, (concurring). agree C. J. I ma- with the jority ques- record does not establish that Tepper tioned ads of false, misleading Marcus and were deceptive, adopted were the standards
581 Supreme States court after the decision of the United Arizona, 350 Bates v. Bar 433 U.S. Court State published. (1977), and in at the time ads were effect prohibi- the additional rule as it now exists contains course, in this which, tion of not tested unfairness1 proceeding. many re understandably
These ads are offensive spected bar, proba and in all ethical members of the and bility prior to the would have considered unethical been v. Supreme in Bates decisions of United Court States of R.M.J., Arizona, supra, Bar In the Matter State and U.S. -, 929, (1982). 455 71 L. 2d 64 102 S. Ct. Ed. degrading lack the I ads sense believe these were lawyers. professionalism expect How- we should ever, pro- those are not sufficient characterizations hibit them. disagree
STEINMETZ, (dissenting). J. I decision of the court. words
Some of the unfortunate ill-chosen most history Supreme used in the of the States Court United Bar v. were those in Bates State of Justice Blackmun Arizona, (1977), when he wrote: 433 U.S. 371-72 day, person “In who earns we do belittle living by strength of his his mind. trade the force of his arm or lawyers ‘above’ Since the are somehow belief anachronism, founda- has become the historical tion for the crumbled.” restraint has English Dictionary Lan- Random House of the guage (1966), own anachronism “after its defines time; an or archaic .” obsolete . form.. true, per- today pay proper respect to
It is we do society strength or me- son who serves use his aptitude. However, judgment chanical is a societal 20.08(7). SCR and attitude This toward their individuals and worth. judgment of individuals same likened socie- cannot be ty’s judgment group practicing profession of of a law. *19 society always
The individual and in our has been such; however, judged as is a should when she he group placed member of profession, a a of is mantle the on that person. This can mantle be referred collective- ly “profession.” judged profession our as The entire is by the actions of members. individual language interpreted of has been Blackmun Justice by attorneys arguing the instant case to the mean profession longer of is a the law no entitled to distinctive recognition, equivalent but of an rather the individual’s mentality equivalent and the trade bar to a association “guild mentality.”
According Dic- Third International New Webster’s tionary (1967), guild is: class, “1: belonging of an association men to the same pursuits, in engaged having kindred common interests any or aims: as a: hav- associations of various medieval ing association semireligious both social and b: a features medieval controlling local some merchants trade parts constituting gov- of a of Britain and local sometimes erning body craft or trade ac: association medieval of members promote the welfare of established replacing craft and its members and sometimes the mer- guild body governing d: mod- chants’ various societies, associations,
ern resembling or brotherhoods guilds broadly: medieval in their . . . aims FELLOW- SHIP, . .”. SOCIETY. hardly That integrated definition describes as- bar membership sociation where of men and women is re- quired, only and purposes improvement common are representation in the society protection afforded to and against persons group whose conduct is less than professional.
583 quoted previously Blackmun words Justice argument type How- have led to made in this case. ever, charged opinion later his Justice Blackmun guarding bar association with and its individual members against deceptive attorneys public assuring advertising by attorneys “that both free- flows ly clearly.” and that, suspect Blackmun also
Justice stated: “We advertising, lawyers they always most will behave as uphold They oaths to have: will abide their solemn integrity profession and honor their system. Arizona, supra, Bates at 379. v. State Bar of added.) (Emphasis
Thus, opinion hints that within one Justice Blackmun attorneys may recognizes that be tradesmen later professionals This they solemn oath. bound their In the case of latter characterization is consistent with J., U.S. -, L. Matter R. M. 102 S. Ct. *20 of (1982), “Thus, in Ed. 2d 64 in which the court stated: Bates, ef potentially adverse the Court found that quality professionalism on and the fect sufficiently to a substan services was not related great justify an interference tial state interest to so (Emphasis J., supra, speech.” R. at 938. M. 102 S. Ct. added.) relevantly Random defined
“Profession” Language English as “a voca- Dictionary of the House learning knowledge department of requiring of some tion (Emphasis profession.” or ... learned science: Cf. added.) as profession” in the same book is defined
“Learned theology, law, and vocations of of the three follows: “one require medicine, commonly highly held to advanced high learning, principles, . .” etc.. modernized in attitude same-
Perhaps are so our we dropped; the “learned” can of individuals be ness however, recognize practice must of law we still profession is a and not a trade. “any
A “trade” is defined the same source book as occupation pursued . as a business or livelihood . . some work; line . .” manual or . skilled mechanical craft. distinguished The references are to business endeavors as suggest employment primarily from service and also physical skills. attorneys entering
When the oath administered to practice (sec. 757.29, Stats.) ex- of law Wisconsin amined, obviously participation does not reflect a mere rendering or commerce, interest but rather of a professional appropriate not for an service. The oath is by engaging in individual who earns his or her livelihood a commercial trade. The oath reads: Attorneys regulated. (1) Attorney’s “757.29 Oath. person Each of practice admitted to a member of the bar any court of this at- state shall subscribe the roll of torneys kept by open to be shall in court clerk and following, take an oath the tenor or affirmation of solemnly wit: I do swear: support “I will the constitution of the United States and the Wisconsin; constitution of the state of respect “I will justice maintain the due to courts of judicial officers; “I will any proceeding or counsel maintain or suit defense, appear unjust, any shall to me to ex- or cept such honestly as I to be believe debatable under land; law of the employ, “I purpose maintaining will me, causes only confided such means as are consistent honor, with truth and and will seek never mislead judge jury by artifice or false statement of fact law; *21 preserve “Í will maintain the confidence and inviolate my with accept client compensation the secrets of in and will no my my except client’s business from connection my knowledge client’s approval; with client or personality from all offensive “I will abstain and ad- prejudicial no to reputation fact the honor or vance of a
585 justice party witness, required by of the or unless charged; cause with which I am reject, any personal “I will never from to consideration myself, oppressed, or the cause of the defenseless or delay any person’s help me cause lucre or malice. So God.” highest pro-
If in court land treats the “learned our trade, fession” of law as a will fill our ranks attitude tradespeople, professionals. rather than recognition Justice Powell to the accorded referred Bar, profession Virginia 421 in State v. Goldfarb 773, regu (1975) U.S. 792 : “The interest of the States lating lawyers lawyers especially great essen is since governmental primary tial of administer function ing justice, historically and have ‘officers of been ” quoted (Emphasis added.) courts.’ This was also Florida, Bates, supra, Sperry U.S. at 361. See also: v. 373 (1963) ; 117, Hurley, Cohen v. U.S. 123-24 Wadmond, (1961); Law Research v. Students Council 154, 157 (1971). 401 U.S. attorney advertising placed allowing Bates case in speech. form of free The court
limits on this commercial pub- explained need “Because the for such limitation: legal matters, may sophistication partic- lic lacks misleading susceptible deceptive ularly Bates, supra, by lawyers.” at 379.
Bates held at further 383: attorneys may holding advertising by not be “In subjected suppression, the advertise- to blanket and that we, course, protected, not hold that ment at issue is do regulated attorneys may advertising by way. not be . . . deceptive, “Advertising false, Pharmacy subject Virginia course Board v. restraint. See U.S., Virginia Council, 425 at 771- Consumer fact, public 772, phistication n. . lacks so- 24. . . In because concerning legal services, misstatements that *22 might unimportant ad- in other be overlooked or deemed vertising quite inappropriate in ad- be found
vertising.”
J.,
In the
of In
Matter
M.
in
case
the court
R.
discussing
never-
Bates
“But the decision in Bates
held:
emphasized
theless was a narrow one. The
that ad-
Court
vertising by lawyers
False,
regulated.
de-
still could be
subject
ceptive,
misleading advertising
or
remains
restraint,
advertising by
recognized
and the Court
professions
special
deception
poses
.
risks of
.”—.
.
supra,
J.,
R. M.
The Court in M. J. Bates “did not stated R. potentially means foreclose restrictions or demon- on strably misleading advertising.” (Em- 102 S. at 937. Ct. phasis added.) controlling legitimate pro-
The states have a interest advertising, fessional made clear in services and it was J., regulation imposition Bates R. M. and “that —and discipline permissible particular where the adver- —are tising inherently likely deceive where the record particular advertising indicates form or method deceptive.” J., supra, has in been R. M. 102 S. Ct. at fact added.) (Emphasis 937. advertising Tep- I would that the hold of Marcus per and, certainly, inherently was in fact like- ly though advertising to deceive. I would hold that legitimate attracting was directed toward the end cli- ents, unprofessional misleading. question it was is who unpro- must be misled for the action to constitute conduct, fessional public, course, and the answer is the attorneys. attorneys other complained who about present in the encouraged case were guardians integrity profession of their Supreme subsequent U.S. Court Bates and cases very public reason that unsophisticated is often evaluating the accuracy of profes- statements made advertising. Certainly, corporation executive sional knowledge likely, would not be further investi- without *23 gation, lawyers or to contact the the taximeter with legal services, per- bound wrists for the informed less but services, son need advice as discussed such Bates, might very mis- well due to the be attracted leading qualities ads. placed
The ads were in The Milwaukee Journal and the yet Milwaukee Sentinal with statewide circulation and professed purpose Mil- was to attract in the clients waukee area where the ma- law office was located. The terial of the ads supposedly was to urban resi- directed dents, papers. However, but all reached readers of the major advertising claims had to do contained attorneys high with offices of areas located in overhead complete alleged of downtown ex- Milwaukee with their travagance pre- chairs. The total idea overstuffed misleading upon prejudices sented is and calls Prejudice facts, held be on consumers. is not based but being relies on all-inclusive characterizations made group about a due isolated of a actions few. anyone knowledge
As specific practice knows, attorneys’ law “mostly” are set fees at an hourly rate only as indicated in the ad. fee That one ways method. There setting are fees, depend- various ing particular on the nature of the work and the client involved:
(1) flat fee,
(2) contingency fee,
(3) hourly rate,
(4) pro bono. The amount an attorney charges depends also on train- ing, knowledge, and expertise, time and those considera- tions are necessarily involved in determining the method computation of fee appropriate to the case. applied attorneys variously in this case case the charge appropriate to the nature of the
the fee above. same those described you walk into ads the “minute in this case state run. And since the wheels their office the starts to meter slow, justice exceedingly your can start can turn bill preju- misleading spiral statement two fast.” In one to; first, cli- justice prospective appealed dices “justice one can turn exceed- case will where ent’s be will ing slow,” and, case secondly, the same client’s subject hourly charge. is a automatically This to an deceptive without realistic statement proven deception furthered in fact. basis This large picture taximeter, related to of a which is not law, practice but rather to a common commercial *24 misleading experience appeal crass, is of consumers. The unprofessional and and should censured. charge
Lawyers “traditionally by the hour.” do not lawyers may cases, the Some do so certain but ad for “lawyers,” uses the term all-inclusive and this creates misleading impression. an inaccurate and today opines high justice The ad is that “the cost anything just.” misleading, but the total This is since suggests attorneys’ text the fees the sole cause ad high cost, “unjust” expenses of the if even exist. such accusation; empirical justification There is no for it this misleading. denigrates legal profession, and it is suggests saving more as an The ad and one-half average. justification statement, for and is no There misleading figure impossible. verification of the It is a is simplistic unsophisticated appeal to statement and a possess consumers desire a natural services who shop bargain. However, it a claim since is best ploy. substance, deceptive without it is an emotional and Finally, legal prob- suggests biggest client’s ad lawyer. prejudice- lem This is a be the client’s also misleading oriented statement which is without and foundation. ad, wrists, picturing
The other is sensational- bound attention-getting, importantly, istic is and but more unprofessional. also attorneys as
This ad also refers to the overhead of being sight.” particularly “out of is mis- That statement leading applied generally attorneys throughout when state, just and not to the “downtown firm” referred to in the ad. is also made claim the volume of cases lawyers” generaliza-
“most is low. Such a foundationless being deceptive tion cannot be made without and mislead- ing to the consumer. "extravagance
To refer to the of client entertainment” “fancy again desks and and the overstuffed chairs” is appeal prejudice. posited It is without established knowledge, inflammatorily deceptively unpro- and fessional.
The concern in this firm case not how the treated office, matter in terms fee once the client was in the deceptive but rather whether ads were attracting the client to the office. attorneys in this case have their practice professionalism diminished the of the of law. uncensured, negates commercialism, Their crass if high professionalism level of which has been established through years practiced by of efforts and which is still *25 majority attorneys. the vast doubt, professional pride integrity
Without a are and distinguish lawyer the hallmarks which the true from merely practices truly professional one who A law. law- yer compelling pride profession has sense of in the and demanding, uncompromising 'integrity. sense of applied attorney advertising
The standards to be presently and uncertain without previously established and, therefore,
definition, in this case though example acceptable, mini- should not serve the mally permissible profession its of law in conduct. The higher relationship public to the standards. deserves to the Since the test of fairness has now added been standards, in this the ads under consideration case would certainly however, find, ads be unethical. I do these deceptive and, therefore, were unpro- fessional under the code as at time. existed
I am authorized state that Mr. JUSTICE WILLIAM join G. Mr. CALLOW JUSTICE LOUIS J. CECI this dissent. Federation American
Milwaukee District Council State, County Municipal Employees, AFL-CIO, & Plaintiff-Respondent,
v. Sewerage Milwaukee Commission, Defendant-Appellant. Appeals
Court January No. 81-751. on Submitted briefs 13, 1982.— April 16, 1982. Decided (Also reported 309.) in 321 N.W.2d