IN THE MATTER OF ROBERT A. FELMEISTER AND HANAN M. ISAACS, ATTORNEYS AT LAW.
Supreme Court of New Jersey
Argued September 13, 1983—Decided February 29, 1984.
95 N.J. 431
David B. Rubin argued the cause for respondents (Rubin & Rubin, attorneys; Robert A. Felmeister and Hanan M. Isaacs, pro se, on the briefs).
SCHREIBER, J.
This attorney disciplinary proceeding comes before us on respondents’ motion to dismiss the charges on the ground that the Disciplinary Rule barring broadcast advertising,
Under these circumstances we assume that the facts alleged in the complaints are true. These complaints disclose the following: Respondents Felmeister and Isaacs, who were admitted to the bar in 1978 and 1980, respectively, are partners in a law practice in Princeton Junction. On November 4, 1982, they wrote to the Supreme Court‘s Advisory Committee on Professional Ethics (Advisory Committee) advising the Committee that
It is our feeling that any efforts to restrain our use of radio as a medium for advertising our services would be violative of the state and federal constitutions. However, we invite your opinion as to the correctness of our position on the issue of broadcast media advertising by lawyers. If you wish to discuss this matter,
The Division of Ethics and Professional Services (Division) responded in a letter dated November 9, 1982 that the Committee would not be acting on inquiries relating to attorney advertising until the Supreme Court Committee on Attorney Advertising (Advertising Committee) has reported to the Supreme Court. The Advertising Committee had been appointed in July, 1982 to evaluate and make recommendations to the Court on appropriate rules and guidelines to govern advertising by attorneys in this state. One of three specific areas that the Advertising Committee was directed to explore was the continued prohibition on radio and television advertising.2 Respondents were advised that their letter was being forwarded to the Advertising Committee.
The Division‘s letter also referred to this Court‘s opinion in In re Professional Ethics Advisory Comm. Opinion 475, 89 N.J. 74, app. dism. sub nom. Jacoby & Meyers v. Supreme Court of New Jersey, 459 U.S. 962, 103 S.Ct. 285, 74 L.Ed.2d 272 (1982). The issue in that case was the ban on the use of firm names that included the names of persons who were not members of the New Jersey bar.
The Advertising Committee arranged for respondents to appear before it on November 18, 1982 during public hearings.
Each complaint contained three counts. The first charged the defendants with a willful and deliberate violation of the ban on radio advertising and with violations of
I
Respondents’ precipitous action is probably due in no small part to their misunderstanding of the nature of the first amendment‘s applicability to an attorney‘s right to advertise. Relying upon Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), they claim that the loss of first amendment freedoms for even minimal periods of time constitutes irreparable injury and is impermissible. Such reliance is misplaced. Elrod v. Burns concerned the protection of political expression, and the Supreme Court, in holding that a preliminary injunction was warranted, referred to the importance of the “timeliness of political speech.” Id. at 374 n. 29, 96 S.Ct. at 2690 n. 29, 49 L.Ed.
Justice Pashman in In re Professional Ethics Advisory Comm. Opinion 475, supra, 89 N.J. at 83-84, summed up the difference between political and commercial speech as follows:
[T]he Supreme Court has never equated commercial speech with political expression. Our society values political expression as an inherent part of the democratic process. Commercial speech, in contrast, is valued and constitutionally protected only to the extent that it conveys facts which facilitate honest commercial transactions. With that in mind, both the U.S. Supreme Court and this Court have said “there can be no constitutional objection to the suppression of commercial messages more likely to deceive the public than inform it.” In re Professional Ethics Opinion 447, 86 N.J. 473, 477 (1981), quoting Central Hudson Gas v. Public Service Comm‘n, 447 U.S. 557, 563, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980). Moreover, “a different degree of protection is necessary to insure that the flow of the truthful and legitimate commercial information is unimpaired.” Virginia Pharmacy, 425 U.S. at 771, n. 24, 95 S.Ct. at 1830, n. 24.
It was not until Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), that commercial speech was clearly placed under the umbrella of the first amendment. In Virginia Pharmacy, the Supreme Court struck down a statute prohibiting the advertising of prescription drugs. The Court held that the linchpin of the first amendment rationale was the consumer‘s interest in the dissemination of information so that his economic decision could be intelligent and well informed. “To this end, the free flow of commercial information is indispensable.” Id. at 765, 96 S.Ct. at 1827, 48 L.Ed.2d at 360. Untruthful, deceptive or misleading statements were not protected. Commercial infor-
The majority opinion in Virginia Pharmacy cautioned that:
[A]lthough we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising. [Id. at 773 n. 25, 96 S.Ct. at 1831 n. 25, 48 L.Ed.2d at 365 n. 25.]
The development of the law with respect to attorney advertising commenced only recently and the Supreme Court has been gradually filling in the interstices in this field. In 1977 the Supreme Court was faced in Bates v. State Bar of Arizona, supra, with the question of the validity of an Arizona Supreme Court rule that banned newspaper advertising by members of the bar. The heart of the dispute was whether lawyers may constitutionally advertise the prices at which certain routine services would be performed. The Court answered the question in the affirmative. Bates, supra, 433 U.S. at 384, 97 S.Ct. at 2709, 57 L.Ed.2d at 836. Significantly, however, the Court refused to employ the overbreadth doctrine, which permits an attack on overly broad statutes without a showing that the specific conduct of the attacker was protected. The overbreadth doctrine, available in first amendment political speech cases, reflects the policy that it is preferable to permit unprotected speech rather than chill protected speech. Because of the economic nature and durability of commercial speech, the justifications for that policy are not present in attorney advertising. This is because commercial well-being is unlikely to be crushed by overbroad regulation, and the advertiser presumably can determine more readily than others whether his speech is truthful and protected. Id. at 379-81, 97 S.Ct. at 2707, 53 L.Ed.2d at 833-34.
Moreover, the Bates opinion continued, advertising by lawyers is properly subject to regulation. Thus, advertising that is false, deceptive or misleading is subject to restraint. “[T]he leeway
In sum, we recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly. [Id. at 384, 97 S.Ct. at 2709, 53 L.Ed.2d at 836.]
The Court in Bates also pointed out that it was not passing upon in-person solicitations. Ibid. These matters were taken up in 1978 in two opinions, Ohralik v. Ohio State Bar Ass‘n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (upholding prohibition of attorney in-person harmful solicitation for pecuniary gain), and In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978) (permitting in-person solicitation involving political expression and no pecuniary gain).
In 1982 the Supreme Court discussed the constitutionality of a Missouri Supreme Court rule governing an attorney‘s advertisements placed in newspapers and in the yellow pages of the local telephone directory. In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). The Court substantially adopted its analysis in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm‘n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), in which it had struck down a regulation banning a public utility from promotional advertising. The Central Hudson approach contained a four-part inquiry. First, the court must determine whether the commercial speech concerns lawful activity and is not misleading. Second, it must decide whether the governmental interest asserted in support of the regulation is substantial. Third, if the answers to these questions are affirmative, then the court must determine whether the regulation directly ad-
The Court in R.M.J. explained its approach to professional commercial advertising as follows:
Commercial speech doctrine, in the context of advertising for professional services, may be summarized 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 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. Thus, the Court in Bates suggested that the remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation. [433 U.S. at 375, 97 S.Ct. at 2704, 53 L.Ed.2d at 830.] 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. [455 U.S. at 203, 102 S.Ct. at 937, 71 L.Ed.2d at 74.]
R.M.J. cautioned, however, that applying the Central Hudson formulation to rules governing advertising of professional services must be done “with the understanding that the special characteristics of such services afford opportunities to mislead and confuse that are not present when standardized products or services are offered to the public.” Id. at 203 n. 15, 102 S.Ct. at 938 n. 15, 71 L.Ed.2d at 74 n. 15.
The problem of formulating appropriate standards governing attorney advertising is compounded by the special treatment necessary for broadcasts and telecasts. Bates referred to the “special problems of advertising on the electronic media.” 433 U.S. at 384, 97 S.Ct. at 2709, 53 L.Ed.2d at 836. In Metromedia, Inc. v. San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800, 811 (1981), the Supreme Court, in discussing and
It can be understood from this brief review of the Supreme Court opinions that the development of an attorney‘s right to advertise as a facet of commercial speech under the first amendment is of recent vintage, has been undergoing gradual explication, and requires special care to balance the State‘s interest in regulating an attorney‘s conduct against the public‘s right to information concerning attorneys’ services, particularly in the broadcast and telecast area. We are sensitive to the unique qualities of radio and telecast advertising. Radio and television advertising reach a wider audience than does print advertising, and that audience includes a substantial number of less educated consumers who are not exposed to other media. Legal Department, National Association of Broadcasters, Advertising by Lawyers: A Broadcaster‘s Perspective 12–16 (1978). Television has become one of the most potent and popular of all advertising media, in part because of its unique “show and tell” capabilities. Id. at 33. Advertisers expect to achieve maximum persuasive effects from a fleeting exposure of the message sometimes with a potential subliminal impact on the audience. In radio and television broadcasting the volume, quality and intonation of voices can create ambiguities or convey nuances in meaning. Music, sound effects and dramatization are additional broadcasting techniques that may color the message conveyed to the
We did not sit idly by since Bates, but amended our Disciplinary Rules to permit advertisements in the print media.
The Advertising Committee held public hearings, studied the case law and analyzed many articles, rules and statistical studies. After completion of its intensive investigation and deliberation, the Advertising Committee was seriously divided on the
II
The primary issue here is not the constitutionality of the Rule, as our dissenting colleague asserts. Rather, the question is the Court‘s responsibility and authority to assure that its rules of conduct for attorneys are obeyed by all—even while they are under challenge. In a situation such as this, when a rule is being studied by the Court, an attorney has an obligation to abide by our existing Disciplinary Rule,
There is a value in assuring orderly change when a Disciplinary Rule is being revised whether because of alleged illegality or for asserted improvement. If all or a substantial number of attorneys were to disregard the Rule during this period, we would have chaos. Intentional violation of the Disciplinary Rule constitutes conduct “prejudicial to the administration of justice.”
Moreover, keeping in effect our prohibition against radio advertising during the interim served the distinct strong interest of this Court to protect against deceptive and misleading advertising. Without some type of monitoring and retention of records, enforcement against misleading statements or those likely to cause a member of the public to harbor an unjustifiable expectation would not have been feasible. Indeed, we had no monitoring or administrative organization in place for broadcast advertising when respondents advertised over the radio.4
Until an alternative regulatory scheme could be adopted, the least restrictive means to achieve the State‘s goals of developing a new regulation without totally foregoing its obligation to regulate attorney practice was for this Court to enforce the existing Disciplinary Rule. A somewhat similar situation arose in Consumers Union v. American Bar Ass‘n, 427 F.Supp. 506 (E.D.Va.1976), aff‘d in part sub nom. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). In that case, the district court permitted an attorney advertising disciplinary rule, which was being constitutionally
Even when statutes have been held to be unconstitutional, enforcement thereafter during an interim period for good and sufficient reason is permissible. See Salorio v. Glaser, 93 N.J. 447, 467–68 (1983) (setting prospective effective date for enforcement of judgment invalidating Emergency Transportation Tax Act so that “[t]he State should be afforded a reasonable period of time to devise alternative * * * solutions“), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983), and cases cited therein.
The respondents could have challenged the constitutionality of the Disciplinary Rule in a suit for a declaratory judgment. Uniform Declaratory Judgments Law,
Respondents, however, chose not to seek a declaratory judgment but to violate the mandate of the Court. Despite being fully aware of the Rule and its meaning, the respondents intentionally violated it. Cf. In re Hinds, 90 N.J. 604, 630–31 (1982) (where the conduct proscribed by the Rule, which involved political as distinguished from commercial speech, was ambiguous and the disciplinary restriction was not expressly brought to the attention of the attorney before his conduct occurred). We do not view their actions as being substantially different from those of individuals who violate a court order and then seek to raise the unconstitutionality of the injunction as a defense to prosecution for the violation. Unconstitutionality is not a defense. For example, in Walker v. Birmingham, 388 U.S. 307, 320, 87 S.Ct. 1824, 1831, 18 L.Ed.2d 1210, 1219 (1967), the Supreme Court upheld the conviction of civil rights demonstrators for violating an ex parte injunction issued to enforce an ordinance prohibiting parading or demonstrating without a li-
For several reasons, upholding the directive of the Disciplinary Rule, despite its alleged constitutional infirmity, is fair. Of primary importance is the strong public interest in the administration of the justice system. The Rule, like an injunction, clearly defined the conduct prohibited and the group enjoined. Additionally, as previously observed, judicial remedies of review were clearly established so that an acceptable method to challenge the restriction of conduct was available. Under these circumstances it is not unreasonable to expect attorneys to abide by the Rule and, if desired, to challenge it through an appropriate judicial procedure.
We have previously adverted to the Supreme Court‘s position that the overbreadth doctrine is not available in an attorney‘s commercial speech context. Respondents have challenged the constitutionality of the Disciplinary Rule on its face, essentially as being overbroad. They have not shown that the regulation is unconstitutional as applied to them. In the absence of an examination of the respondents’ particular communication, one cannot determine if that communication is deceptive or misleading and therefore not entitled to first amendment protection. It is in this sense that the overbreadth doctrine applies. To the extent, therefore, that their challenge is limited by the overbreadth doctrine, it fails, since this Court is not
III
This Court has a solemn obligation to regulate the legal profession, which includes promulgating and enforcing Disciplinary Rules. The Supreme Court observed in Ohralik, supra, 436 U.S. at 460, 98 S.Ct. at 1920, 56 L.Ed.2d at 456, that “[i]n addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the [legal] profession[].” We understand that responsibility and only recently stated: “The Court‘s responsibility in regulation of the state bar is fundamental. We have plenary and exclusive control over both admission to the bar and the practice of law. We seek to exercise that control in the interests of the public.” In re Professional Ethics Advisory Comm. Opinion 475, supra, 89 N.J. at 79.
In the scheme of things respondents’ conduct, contrary to the viewpoint of the dissent, post at 450, is not innocuous, but the policy expressed herein is of substantial importance in the administration of justice. We pause to note that there are gradations of importance of free speech. We previously observed the substantial differences between political and commercial speech and among types of commercial speech. Here, the entire bar of more than 22,000 lawyers has obeyed the rule prohibiting broadcast advertising while the Supreme Court was determining what changes should be made. One law firm consisting of two lawyers did not have the patience to wait and
As officers of the Court, attorneys have a peculiar position with respect to the judicial process and compliance with the expressed or stated law. Respect for the law should be more than a platitude. See In re Addonizio, 95 N.J. 121 (1983). It would be anomalous indeed to permit attorneys unnecessarily to flout regulations of this Court governing their conduct. The respondents’ motions for dismissal are therefore denied, and the matters remanded for further proceedings to the District VII Ethics Committee.7
HANDLER, J., dissenting.
The respondents in this case have consistently asserted that the Supreme Court‘s total ban on broadcast media advertising of attorneys’ professional services,
In refusing to deal with the constitutionality of the ban on advertising while at the same time authorizing the imposition of discipline for its violation, the Court acts on the premise that a constitutional determination is unnecessary. It apparently believes that a constitutional adjudication is obviated in light of the replacement of our ban on broadcast media advertising with a new rule that allows such advertising subject to reasonable
If the constitutionality of the total ban were the only issue here, the replacement of the ban with a new rule allowing regulated advertising could justify the avoidance of a constitutional adjudication. The constitutionality of the total ban, however, is not the sole question on this appeal. In view of the Court‘s decision—to remand the case to determine whether respondents should be sanctioned for their failure to comply with that ban—the case has been transposed into a disciplinary proceeding.
The constitutionality of the particular disciplinary rule can make a great deal of difference in determining whether discipline is needed or appropriate. E.g., In re Rachmiel, 90 N.J. 646 (1982); In re Hinds, 90 N.J. 604 (1982). This is especially true in a case such as this in which discipline trenches upon important constitutional rights that are protected under the First Amendment. Id.; In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).
In this case, I have little doubt that the Court‘s former total ban on broadcast advertising violated the protections of the First Amendment. In re Professional Ethics Advisory Comm. Op. 475, 89 N.J. 74, 97 (Handler, J., concurring in part and dissenting in part), app. dism. sub nom. Jacoby & Meyers v. Supreme Court of N.J., 459 U.S. 962, 103 S.Ct. 285, 74 L.Ed.2d 272 (1982). The unconstitutionality of the rule, in light of the protectable interests of free speech with which it conflicts, is a highly relevant factor in determining whether the imposition of discipline for its violation is a sound and appropriate exercise of our regulatory authority.
By authorizing discipline in this case, the Court confirms the misgivings I expressed in In re Professional Ethics Advisory
We have expended considerable energy on the important task of fleshing out new professional advertising rules, articulating standards with greater realism and understanding, defining guidelines with more clarity and precision, developing an administrative machinery for effective regulation, and creating a climate that will foster compliance serving the interests of both the public and the profession. Committed to these important concerns, we ought not turn our attention backwards to the asserted infractions of respondents consisting of only a few, brief radio commercials—innocuous in the larger scheme of things.
Furthermore, in opting for discipline, we backtrack. In our last case involving commercial speech, In re Professional Ethics Advisory Comm. Op. 475, supra, we made clear that we intended to act in our legislative capacity by initiating the promulgation of sound and valid rules governing professional commercial speech. Implicit was the promise of our full consideration and protection of constitutional interests in such speech. Our new rules, while not yet tested, have certainly addressed these constitutional concerns. Today, we shift our sights. Instead of
As a Court, we appreciate the distinction between disciplinary rules that impact upon solemn constitutional interests, such as free speech, and those that do not. In re Rachmiel, supra; In re Hinds, supra. Not all disciplinary rules are of equal importance. When the State‘s regulatory arsenal is turned toward conduct that implicates constitutional rights of speech, we should be exceedingly chary before unleashing our disciplinary fire. Id.
We have an enormous range of discretion in the exercise of our disciplinary function. I believe that our discretion would be exercised prudently in this case by dismissing these proceedings without the additional imposition of discipline. All important interests generally to be served by discipline will have been adequately and appropriately addressed by our opinion. Its message is clear and commanding. It is both instructive to the public and hortative to the profession. More, it is a self-executing rebuke, an unmistakable disapproval of respondents for their cavalier attitude toward the disciplinary structure. Little more is to be gained, and much may be lost, by our insistence that formal punishment be meted in this case.
I believe, respectfully, that the decision to impose discipline in this case is an imprudent and mistaken exercise of our discretion. I therefore dissent.
For affirmance—Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, POLLOCK, O‘HERN and GARIBALDI—6.
Dissenting—Justice HANDLER—1.
Notes
A lawyer shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item. A paid advertisement must be identified as such unless it is apparent from the context that it is a paid advertisement, and shall be communicated to the public only in print media. A copy of the paid advertisement shall be approved by the lawyer prior to its publication and shall be retained by him for 3 years after publication.
Television producers sell “realistic” and “atmospheric” mood photography, montage effects, use of succession of still shots of puppets to produce “animation“—all techniques designed to transport the viewer out of his normal, hardheaded buying attitude into a world that, because of the suspension of belief, is more “real” than the real world, and within which buying the advertised brand is linked to the fulfilment of the viewer‘s idealized self-image. [Bensman, “The Advertising Agency Man in New York,” in Media Sociology: A Reader 213 (J. Tunstall ed. 1970).]