*1 v. KENTUCKY BAR SHAPERO ASSOCIATION Argued 87-16. March No. 1988 Decided June *2 Brennan, judgment announced the of the Court and delivered the II, White, opinion respects to Parts I of the Court which *3 Marshall, Bláckmun, Stevens, Kennedy, JJ., joined, and and III, Marshall, Blackmun, opinion respect to Part in which and White, J., Kennedy, JJ., joined. opinion concurring filed an and Stevens, J., O’Connor, joined, post, p. dissenting part, which 480. Rehnquist, Scalia, J., opinion, J., dissenting filed a which C. and joined, post, p. 480.
Donald, him L. the cause for With argued petitioner. Cox Lintner. on the briefs was Janice Mary Jr., Frank P. the cause for Doheny, argued respondent. him on the brief was L. Lenihan* Joseph With announced the of the Court judgment Justice Brennan I II and delivered the Court as to Parts and opinion III in and an as to Part which Justice opinion Marshall, Kennedy and Justice join. Blackmun, Justice may, This case the issue whether a State consist- presents ent with the First and Fourteenth Amendments, categori- lawyers soliciting legal from business for cally prohibit pecu- truthful and letters to niary gain by sending nondeceptive clients known to face legal problems. potential particular Academy filed urging *Briefs of amici curiae affirmance were for the III; Lawyers by Pennington for the Bar Florida Trial American C. Rufus Franck, Kuhlman; MacCrate, George and Robert Michael Association White; by Jeffrey Lawyers Robert of Trial of America for the Association Ferrero, by Barry Ray Richard Jr. and for the Florida Bar hH Kentucky’s integrated petitioner, In a member of (1988), applied Ky. Sup. Rule 3.030 Association, see Ct. Bar Attorneys Advertising Kentucky Commission1 to the potential proposed approval he to send “to of a letter that against suit filed them.” who have had a foreclosure clients proposed read as follows: letter your being my home is come to attention “It has you may true, If be about to lose foreclosed on. this your may you keep your Federal law allow home. your [sic] creditor STOP home ORDERING pay give you them. more time to anytime may my office from 8:30 a. m. to call “You you keep p. FREE information on how can 5:00 m. for your home. you surprise wait. It what I NOW, don’t
“Call you. you do for Just call and tell me that be able to got FREE, Remember it is there is NO this letter. calling.” charge for misleading. find the did not letter false
The Commission approve petitioner’s proposal it declined Nevertheless, then-existing Kentucky Supreme ground Court that a *4 delivery mailing prohibited or of the written advertise- Rule by specific “precipitated event involv- or occurrence ments ing relating addressee or addressees as distinct or to the charged respon the Attorneys Advertising Commission is
1 The
of
sibility
attorney advertising
prescribed”
as
the Rules
“regulating
of
3.135(3) (1988).
Ky. Sup.
Rule
The
Kentucky Supreme
the
Court.
Ct.
of the
appealable
are
to the Board of Governors
Commission’s decisions
Association,
3.135(8)(a),
ultimately
Kentucky
and are
reviewable
Bar
Rule
3.135(8)(b).
“Any attorney
by
Kentucky
who
Supreme
the
Court. Rule
by
any professional
contemplated
act
him”
propriety
is in doubt as to the
of
advisory opinion from a committee of the
option
seeking
also has the
an
Association, which,
formally adopted by
Kentucky
if
the Board of Gov
Bar
Kentucky
ernors,
by
Supreme
the
Court. Rule 3.530.
is reviewable
3.135(5)(b)(i).2
general public.” Ky. Sup.
from the
Ct. Rule
3.135(5)(b)(i)’s
registered
The Commission
its view that Rule
targeted,
ban
direct-mail
violated the First
specifically
principles
the
enunciated
Zau
Amendment—
derer
Disciplinary
Supreme
v.
Counsel
Court
Officeof
(1985)
Ohio,
On review of the Ethics Committée’s Kentucky Supreme by “compelled Court felt the decision 3.135(5)(b)(i)] [Rule Zauderer to order deleted,” 726 S. 2dW. (1987), replaced 299, it with the 7.3, ABA’s Rule provides entirety: which in its lawyer may professional employment
‘“A not solicit prospective from a client with whom no has family prior professional relationship, by or in- mail, person significant otherwise, or when a motive for lawyer’s doing lawyer’s pecuniary gain. is the so person, telephone term ‘solicit’includes contact in or 3.135(5)(b)(i) Rule provided in full: “A written advertisement be sent or delivered to ad- an individual only dressee if persons, that addressee is one of a class of other fam- than a ily, to whómi is or time, only also sent delivered at or about same R if it precipitated specific or event in- or prompted occurrence volving relating'to the addressee or as gen- addressees distinct from the *5 public.” eral
471 letter or by other or other com- telegraph, writing, directed to a but munication does not specific recipient, addressed include letters circulars distrib- uted not known to generally persons need serv- kind ices of the in a provided by particular who matter, might but are so situated that they gen- eral find services 726 at 301 2d, useful.’” S. W. ABA, Model Rule Professional Conduct 7.3 (quoting (1984)).
The court not specify infirmity did either Rule precise 3.135(5)(b)(i) 7.3, or how Rule 7.3 cured it. like Rule its direct-mail predecessor, targeted, solicitation prohibits lawyers for without a pecuniary gain, particularized finding that the is false or cer- misleading. granted solicitation We tiorari resolve whether such blanket is con- prohibition Amendment, sistent with the First made to the applicable States 484 Amendment, Fourteenth U. S. 814 through (1987), and now reverse.3
3 reject We respondent’s request that we dismiss or affirm this case because “the Supreme Kentucky granted Shapero precisely Court of relief which he requested.” Respondent Brief for 11. The court below did, petitioner [3.135(5)(b)(i)] void,” as prayed, . “declare . . rule Motion for E-310, Review Advisory Opinion (Sup. Ky.). No. Ct. 86-SC-335 The disposition, however, court’s adopt ultimate was to newa Rule with the same petitioner defect ope identified the old and to “affirm the deny decision of [petitioner’s] request” ap the Ethics Committee to proval (1987). surely of his letter. 726 S. W. 2d can Petitioner prevailed be said to have below. Nor petitioner does the fact never leveled his constitutional chal- lenge specifically against presents Rule 7.3 mean that this case “federal constitutional here for [that were] issues raised the first time review of decisio[n],” Louisiana, [a] state v. court Cardinale 394 U. S. (1969). constitutionality parties argued categori- of a briefed and cal targeted, advertising, plainly ban on direct-mail and the below court rejected arguments adopted considered and those as it Model Rule 7.3. 2d, See S. W. 300. respondent’s
We also to dismiss in order to decline invitation this case ongoing judicial proceedings. Younger avoid See interference state *6 472 Lawyer advertising category constitutionally is in the of II
protected speech. commercial See Bates v. State Bar Ari- of (1977). princi- 350 zona, 433 U. S. The First Amendment ples governing regulation pe- state solicitations for cuniary gain speech are now familiar: “Commercial that is deceptive not false or and does not concern unlawful activi- only ties . . . restricted the service of a substantial governmental only through directly interest, and means that supra, (citing advance Zauderer, that interest.” at 638 Cen- Corp. tral Hudson Gas & Electric v. Public Service Comm’n (1980)). regula- York, New 447 U. S. 566 557, Since state speech “may only tion of commercial extend far as as the in- supra, serves,” terest it Hudson, Central at state rules designed prevent “potential deception that are for reasonably necessary . confusion . be no . broader than prevent perceived the” evil. In re R. M. 455 U. S. (1982). 191, 203 required application principles
In Zauderer, these categorically prohibited we strike an Ohio rule solicita employment pecuniary through gain tion of for ad containing even if advice, vertisements information truth nondeceptive, regarding specific legal problem. ful and distinguished containing We written advertisements such in-person by lawyers information or advice from solicitation profit, for which we held in Bar Ohralik v. Ohio State Assn., (1978), may categorically U. S. a State ban. The “unique in-person by lawyers [that] features of solicitation justified prophylactic prohibiting lawyers engag rule from ing pecuniary gain,” in observed, solicitation we are present” “not written context of advertisements. Zau supra, at derer, 641-642. (1971). Harris,
v.
Our advertising among general modes of written various to the g., supra (newspaper public. advertising); e. See, Bates, (equating telephone directory n. 26 id., (mailed newspaper advertising); supra In re R. M. J., newspaper announcement cards treated same as and tele *7 advertisements). directory phone Thus, Ohio could no more mass-mailing prevent general population Zauderer from to a represent injured by his offer to women the Daikon Shield prohibit publication than it could his in advertisement newspapers. Similarly, petitioner’s if local letter is neither Kentucky deceptive, constitutionally pro nor could not false large sending opening hibit him at from identical letter your being query, with the “Is home on?,” foreclosed rather targeted than his observation to the individuals “It has that my your being come to attention that home is foreclosed on.” apparently appreciated much, drafters of Rule 7.3 as for exempts the Rule from the ban “letters addressed or ad vertising generally persons circulars distributed . . . who they general might are so situated that in find such services useful.” disapproved petitioner’s proposed
The court below letter only solely targeted persons because it who were “known to legal [the] in letter, 2d, need services” offered his 726 W. S. group persons rather than the broader “so situated they might general in find services that such useful.” Gen- erally, inept, group unless the advertiser is the latter would only include members of the former. The reason to dissemi- particular legal among nate an advertisement of services they might general persons who are “so situated that those actually is to reach individuals who find such services useful” [and provided advertised] kind “need services lawyer.” permit a But the First Amendment does not merely speech it is efficient; ban on certain because more constitutionally particular may ban a on the letter State theory only mail it that to to those whom it would most inter- inherently objectionable. est is somehow rely theory. The court below did not See also Respondent (conceding “targeted Brief for direct mail advertising” distinguished from “solicitation”—“is con- —as stitutionally protected”) (emphasis original). it Rather, targeted, concluded that the State’s blanket ban on all direct- permissible mail solicitation was because of the “serious potential by lawyers abuse inherent direct solicitation potential specific legal clients known to need services.” By analogy 726 S. W. at 301. 2d, to Ohralik, the court observed: subjects prospective pres-
“Such solicitation client to personal way. sure from trained a direct It entirely possible potential client feel overwhelmed the basic situation which caused the specific legal need for the services and have seri- *8 ously impaired capacity good judgment, for sound reason protective and a natural self-interest. a Such condition possibility overreaching is full of the of undue influence, and intimidation.” 2d, 726 W. S. at 301. particular potential equally
Of course, a client will feel “over- by legal whelmed” his troubles and will “im- have same paired capacity good judgment” regardless for of whether a untargeted exposes mails him an letter or him to a newspaper concededly constitutionally pro- advertisement — targeted tected mails activities —or instead a letter. The inquiry potential relevant is not whether there exist clients susceptible whose “condition” makes them to undue influ- poses ence, but whether the mode of communication serious danger lawyers exploit any susceptibility. that will Cf. supra, concurring Ohralik, at 470 (Marshall, in (“What concurring judgment) objectionable in and about Ohralik’s behavior here is so much solicited he busi- ness for himself, but rather the circumstances which he by performed and the means which he accom- that solicitation it”). plished suggestion respondent’s this case is facile
Thus, merely writing” the mark. Brief for Re “Ohralik misses assessing potential overreaching spondent In for and 10. influence, the mode of communication makes all the undue that a could cate Our decision Ohralik State difference. in-person gorically ban all solicitation turned two factors. “a First was our characterization of face-to-face solicitation as overreaching, possibilities practice for invasion of rife with outright privacy, influence, exercise of undue fraud.” Zauderer, S., Ohralik, S., 471 U. at 641. See 436 U. at Zau-derer, “unique . . . 457-458, Second, difficulties,” 464-465. sup attempt state would frustrate at ra, in-person regulation short of an absolute solicitation ban open solicitation is “not visible or otherwise because such scrutiny.” public S., at 466. ibid. Ohralik, 436 U. See also virtually (“[I]n-person would be immune to effec solicitation oversight regulation pro the State or tive fession”) omitted). (footnote Targeted, direct-mail solicita distinguishable in-person from the solicitation each tion is respect. petitioner’s print advertising, targeted,
Like
letter —and
generally “poses
direct-mail solicitation
much less risk of
—
overreaching
in-person
or undue influence”than does
solicita-
S.,
471 U.
at 642. Neither mode of written
tion, Zauderer,
personal
involves “the coercive force of the
communication
“pressure
po-
presence
advocate” or the
on the
trained
yes-or-no
tential client
an immediate
answer to the offer
potential
representation.”
Ibid.
client with a
Unlike
*9
breathing
recipient
badgering
neck,
advocate
down his
the “reader of an advertisement.
. . can ‘effec-
a letter and
[his]
tively
simply
bombardment of
sensibilities
avoid further
eyes,’”
supra,
(quot-
by averting [his]
Ohralik,
n. 25
(1971)).
ing
15, 21
A letter,
403 U. S.
California,
Cohen v.
(but
lawyer),
printed
unlike a
advertisement
can
like a
readily
put
ignored,
in a drawer to be
later,
considered
types
In short,
discarded.
both
of written solicitation “con-
ve[y]
legal
[by means]
[are]
information about
services
more conducive to reflection and the exercise of choice on the
personal
of the consumer than is
solicitation
attor-
ney.”
supra,
targeted
Zauderer,
at 642. Nor does a
letter
recipient’s privacy any
invade the
more than does a substan-
tively
large.
any,
identical letter mailed at
if
invasion,
lawyer
recipient’s legal
occurs when the
discovers the
affairs,
recipient
discovery.
not when he confronts the
with the
(not
Admittedly,
personalized
merely
letter
that is
tar-
geted)
recipient presents
decep-
to the
an increased risk of
tion, intentional or inadvertent.
It
could,
certain circum-
recipient
lawyer’s
stances,
lead the
to overestimate the
familiarity
implicitly suggest
with the case or could
that the
recipient’s legal problem
really
is more dire than it
is. See
Similarly,
Brief for ABA Amicus
as
Curiae 9.
an inaccu-
rately targeted
recipient
letter could lead the
to believe she
legal problem
actually
has a
that she does not
or,
have worse
yet,
g.,
could offer erroneous
advice.
e.
See,
Leoni v.
State Bar
39 Cal.
California,
3d 609, 619-620, 704 P. 2d
(1985),
(1986).
summarily
183, 189
dism’d,
But pre- because direct-mail solicitation lawyers opportunities sents for isolated abuses or mis- justify takes protected does not a total ban on that mode of speech. commercial See In re R. M. S., 455 U. at 203. regulate The State can such abuses and minimize mistakes through precise far less restrictive and more means, the most require obvious of which is to to file solicita- agency, giving tion letter with a state id., at the State ample opportunity supervise mailings penalize actual “regulatory “unique” abuses. The difficulties”that are to in- person lawyer supra, solicitation, Zauderer, at 641—solicita- open public scrutiny” tion that is “not visible or otherwise impossible and for which it is “difficult or to obtain reliable proof actually place,” supra, of what took Ohralik, at 466- apply do not to written solicitations. The court below of- *10 “belie[f] [that] fered no basis for its submission of a blank Advertising pro- [does not] form letter to the Commission protection vid[e] public overreaching, a suitable to the from misleading private targeted intimidation or mail solicitation.” presumably 726 S. W. at Its 2d, 301. concerns were those expressed by Delegates ABA the House of in its comment to Rule 7.3: lawyer discipline agencies struggle
“State for resources investigate specific complaints, to much less for those necessary lawyers’ to screen mail solicitation material. they agency if Even materials, could examine such staff anything unlikely lawyer members are to know about the prospective underlying problem. or about the client’s knowledge they Without such cannot determine whether lawyer’s representations misleading.” the are ABA, (1984). pp. Model Rules of Professional Conduct, 93-94 scrutiny The record before us furnishes no evidence that targeted appreciably solicitation letters will be more burden- scrutiny some or less reliable than of advertisements. See (Burger, Bates, 433 S., 379; id:, U. at at 387 J.,C. concur- ring dissenting part) (objecting to “enormous Bates). regulatory by” general new burdens called for As a evaluating targeted require matter, a advertisement does specific recipient’s identity information about the problems evaluating newspaper more than advertise- requires ment like information about all If readers. the tar- geted specifies particular recipients letter facts that relate to (e. g., my your being “It has come to attention that home is on”), reviewing agency op- foreclosed has innumerable might, example, require tions to minimize mistakes. It lawyer prove (by supplying the truth of the fact stated copies lawyer of the court documents or material that led the fact); require explain briefly to the it could how accuracy; he or she discovered the fact and verified its or it require identifying could letter bear label it as an ad- (dictum); supra, vertisement, In id., see at 384 re R. M. J., n. directing how to recipient report inaccu *11 rate or misleading sure, letters. To be a state or agency bar association that reviews solicitation might letters have more work than one that does not. But “[o]ur recent decisions in volving commercial have speech been in grounded the faith the free flow of commercial information is valuable enough to justify imposing would-be regulators the costs the truthful distinguishing from the false, the helpful from harmless from the harmful.” Zau the and the misleading, der er, S., 471 U. at 646.
Ill
The
validity
Rule 7.3 does not turn on whether petition-
er’s letter itself exhibited
the evils at which
7.3
Rule
Ohralik,
was directed.
See
436
S.,U.
at 463-464, 466.
Since, however,
the First Amendment overbreadth doctrine
does not
Bates, to
apply
professional
see
advertising,
U. S.,
379-381,
at
we address respondent’s contentions that
petitioner’s letter is particularly
and
overreaching,
therefore
Id., at
of First
unworthy
Amendment protection.
In
381.
that regard,
respondent
identifies two features of the letter
in
that,
before us
its view, coalesce to convert the proposed
into
letter
“high pressure solicitation,
solicita-
overbearing
tion,” Brief
for Respondent 20, which is not protected.
First,
respondent asserts that
the letter’s liberal use of un-
(e. g.,
“Call NOW,
derscored,
letters
uppercase
wait”;
don’t
“it FREE,
there is NO
charge
calling”)
at
“fairly shouts
Id., . . . that he
recipient
should employ Shapero.”
(“Letters
19. See also Brief in
Opposition
of solicitation
which shout commands to the individual,
targeted recipient
words
underscored
are of
capitals
a different order from
and
are
to
subject
proscription”).
Second, re-
(e. g.,
spondent objects that the letter contains assertions
“It
may
what I
surprise you
be able
to do for you”) that
no affirmative or
fact,”
“statte]
objective
but constitute “pure
salesman
enticement for
puffery,
the unsophisticated, which
commits
Shapero
nothing.” Brief for Respondent 20.
style
pitch
type
or
of a letter’s
its
inclusion of sub-
jective predictions
might
of client satisfaction
catch the
recipient’s attention
than
more
would bland statement of
purely objective
type.
facts in small
But a truthful and non-
deceptive
big
type
no
letter, matter how its
and how much it
speculates
“shou[t]
recipient”
“gras[p]
never
can
at the
lapels,”
lawyer engaging
him the
id., at
as can a
simply presents
face-to-face solicitation. The letter
no com-
parable
overreaching.
long
risk of
And so
as the First
protects
right
Amendment
business,
solicit
restricting
State
claim no
substantial interest
truthful
nondeceptive lawyer
likely
solicitations to those least
recipient.
be read
*12
Moreover,
First Amendment
authority
limits the State’s
to dictate what
information
at-
may
torney
convey soliciting legal
“[T]he
in
business.
States
may
place
prohibition
types
po-
not
an absolute
on certain
of
tentially misleading
may
information
if
...
the information
presented
way
deceptive,”
in
also be
that is not
unless the
“assert[s]
State
a substantial interest” that such a restriction
directly
would
In
advance.
re R.
J.,M.
To
sure,
be
a letter
be
if it
em
phasizes
“relatively
trivial
uninformative
In re
fact[s],”
supra,
(lawyer’s
large capital
R. M.
205
“in
statement,
Supreme
letters,
that he was a member of
Bar
of the
States”),
Court of the United
or offers overblown assurances
Wiegen,
satisfaction,
of client
In re
cf.
Von
63 N.
2d Y.
(1984)(solicitation
179, 470 N. E.
2d
letter to victims
[the lawyer’s]
of massive disaster informs them that “it is
opinion
liability
clear”),
that the
of the defendants is
cert. de
(1985);
(“[Ad
supra,
nied,
misleading respects. respondent in those Nor does contend misleading any respect. in that the letter is false or other Of respondent Kentucky course, raise, is free to and the courts argument consider, free to on are remand. judgment Supreme Kentucky of is re- Court proceedings versed, and the case is remanded for not further opinion. inconsistent with this
It is so ordered. Justice whom Justice con- White, joins, Stevens curring part. dissenting agree opinion, I I II with Parts and of the Court’s but am of the view that the matters addressed in Part III left should be to the state courts the first instance. O’Connor,
Justice with whom The Chief Justice Justice Scalia join, dissenting. Relying primarily Disciplinary Zauderer v. Office of (1985), Supreme Ohio, Counsel Court 471 U. S. attorney prohibit
Court holds that States a form of potentially pernicious that is more than the ad- vertising agree I at issue that case. with the Court that reasoning supports in Zauderer the today. the conclusion reached decision,
That was itself culmination however, *13 premises a line of cases built on defective and flawed reason- ing. today’s illustrates, As decision the Court has been un- unwilling logic underlying analy- able or to restrain the resulting within bounds. The sis reasonable interference important public policies with and valid is so destructive that analytical I believe the framework itself should be now reexamined.
I by Zauderer held that the First Amendment was violated a attorneys accept employ- to solicit or state rule that forbade containing through information or ment advertisements ad- legal problem. regarding specific id., a See at 639-647. vice holding dissented I from this because I believed that our permitted, precedents good judgment required, that we greater legitimate give déference to the States’ efforts to regulate by attorneys. Emphasizing their the important professional differences between services and products, standardized consumer I concluded unsolicited legal analogous samples advice was not to the free that are promote used to in often sales other First, contexts. the legal quality typically of is services more difficult for most laypersons consequences evaluate, and the of a mistaken sample” may of evaluation the “free much more serious. practice offering legal that reason, For the unsolicited ad- enticing potential professional as a vice means of into clients a relationship likely misleading super- is more much to be than ficially practices ordinary in similar the sale of consumer goods. important, attorney more Second, and has an ob- provide ligation complete clients and disinterested ad- samples” vice. likely advice contained in unsolicited “free lawyer’s drumming to be colored own interest in up profes- business, a that is result sure to undermine the standards sional that States háve a substantial interest in maintaining. specifically newspaper
Zauderer dealt with a advertise- Today’s ment. decision—which invalidates similar rule against targeted, advertising wraps protec- direct-mail — practices mantle of tive the Constitution around that have potential personalized more even for abuse. First, letter is likely overpower judgment somewhat more “to the will and laypeople sought lawyer’s] [the who have advice.” supra, concurring part, Zauderer, at 678 (O’Connor, concurring judgment part, dissenting part). For people system whose formal contacts with the are infre- quent, authority cling law itself tend to to at- torneys just police Unsophisticated as it does to officers. understandably citizens, intimidated courts and their ignore *14 officers, find it therefore much more difficult to apparently “personalized” attorney letter from an than to ignore general a advertisement. “personalized” designed
Second, form sug- letters are to gest significant personal knowledge the sender has some recipient. about, and for, concern Such letters are rea- sonably transparent they somebody when come from selling goods tips, they consumer may or stock market but be much misleading belongs more profession when the sender to a ethically obliged put whose members are their clients’ in- terests ahead of their own. targeted mailings likely
Third, general are more than ad- vertisements unduly to contain advice that is tailored to pecuniary lawyer. serve the interests of the if Even mailings by regulator, they are reviewed in advance will rarely by general. be lawyer’s seen the bar in pro- Thus, the colleagues fessional will not have the chance to observe how potential the desire to sell oneself customers has been bal- against duty provide objective anced An advice. attorney’s maintaining good reputation concern with in the professional community, may which be motivated long-term pecuniary provide will interests, therefore less dis- cipline general in this context advertising. than the case of
Although
regulation
I
today
think that the
at issue
is even
easily
more
defended than the one at
Zauderer,
issue in
I
agree
that the
fairly
rationale for that decision
be ex-
today’s
Targeted
tended to cover
case.
direct-mail adver-
general
tisements —like
advertisements but unlike the kind
in-person
solicitation that
be banned under Ohralik v.
(1978)
Assn.,
Ohio State Bar
[483] interpretation plies logic to the case of Ohralik of that the before us.
II advertising generally Attorney the rubric of falls under speech, speech.” noted, have often Political we “commercial g., Boos See, e. v. First Amendment. the core of the is at (1988). special Barry, for the 318 One reason 312, 485 S.U. metaphor suggested political speech in a was of status sought principle that it as familiar as has become almost upset “[W]hen justify: time has men have realized that they may many fighting . . that come to believe . faiths, good free trade is better reached desired the ultimate power is the the best test of truth ideas—that accepted competition thought get of the mar- itself only ground upon their which truth is the ket, and that safely is the the- out. That at rate wishes can be carried ory States, 250 of Abrams v. United our Constitution.” (1919) (Holmes, dissenting). g., e. Cf., U. S. Magazine, Falwell, 50-51 Hustler Inc. 485 U. S. v. (1988). Traditionally, fence around this the constitutional metaphorical marketplace not shielded the actual of ideas had govern- marketplace purely transactions from commercial regulation. mental Virginia Pharmacy Virginia
In
Consumer
Bd. v.
Citizens
(1976),
con-
Council,
however, the Court
Inc.,
The latest in Zauderer and now apply speech confirm that the Court should its commercial doctrine with more discernment than it has shown in these subsequent Virginia Pharmacy cases. Decisions support applying Bates, moreover, the use of restraint this attorney advertising. for held, doctrine to We have never example, speech that commercial has the same constitutional speech public policy, the Court status as on matters of consistently regulating purported com- has to review laws significantly speech stand- under a more deferential mercial ard of review. concerning purely
“Expression commercial transac [First] tions come within the ambit of Amend has only recently. require protection parity ... To a ment’s protection of constitutional for commercial and noncom speech simply by dilution, mercial alike could invite leveling process, guar of the force of the Amendment’s respect speech. antee with to the latter kind of Rather subject than the First Amendment to such a devital- speech ization, we instead have afforded commercial protection, limited measure of commensurate with its position in subordinate the scale of First Amendment allowing regulation might values, while modes expres impermissible be in the realm of noncommercial supra, Assn., Bar sion.” v. Ohio State at 455- Ohralik omitted). (footnote 456
A standardized test has been devised for commercial speech speech cases. Under test, is entitled to protection only constitutional if it concerns lawful activities misleading; speech protected, government and is not if the regulate directly still ban or it laws that advance a governmental appropriately substantial interest and are tai- purpose. lored to that See Central Hudson Gas & Electric Corp. v. Public Service York, Comm’n New 447 U. S. (1980). Applying attorney advertising, that test to it is clear to me that the States should have considerable latitude advertising “potentially demonstrably to ban that is mis- (1982) leading,” (emphasis In re R. M. 455 U. S. added), as well as truthful that undermines the governmental promoting high substantial interest ethi- necessary legal profession. cal standards that are in the advertising by lawyers might protected Some forms of Announcing price under this test. of an initial consulta- might qualify, example, especially appropriate tion if dis- claimers about the costs of other services were included. *17 policing here, Even the inherent difficulties of such advertis- ing suggest that we should hesitate to interfere with state designed adequate rules to ensure that disclaimers are in- suitably cluded and that such advertisements are restrained. steps prices As soon as one into the realm for “routine” legal personal services such as uncontested divorces and bankruptcies, quite however, it is clear to me that the States advertising completely. contrary ban such decision my in Bates was in view inconsistent with the standard test applied speech that is now in commercial cases. Until one particular problems, becomes familiar with a client’s there is simply way dealing no to know that one is with a “routine” bankruptcy. divorce or Such advertisement is therefore inherently misleading potential if it fails inform to clients that they necessarily qualified are not to decide whether their apparently simple problems own can be handled “routine” legal advertising practices services. Furthermore, such will attorney accepts the professional if the standards
undermine solving apparently offering for fixed rates risks economic prove problems not to be so sim- simple that will sometimes promise ple the world that such to For a after all. flat fee can be handled for a divorces as uncontested matters (or ignore inevitably discover- to avoid incentives create will attorney complexities ing) conscientious would lead a anything routine. It as but clients’ cases to treat some possible allow some- rules that would devise workable advertising price thing minimal kinds of most more than the properly by attorneys. left to however, is task, That subject certainly a fit for constitutional and it is States, government adjudication. test, Hudson the Central Under strictly banning justification ample for more than has advertising. price regulating forms of most techniques sample” practices like the “free Solicitation today’s de- even less approved decision are Zauderer advertising price protection serving than of constitutional Applying legal supposedly the Central services. routine for example, today, regulation I at issue Hudson test to the pre- Kentucky interest has a substantial think it clear targeted, misleading venting potentially direct- effects of advertising effects that as the corrosive as well mail appropriate professional standards. can have par- appear strangers Soliciting need who from business significant offer motive for the services, when ticular tendency always gain, cor- lawyer’s pecuniary has a is the especially judgment. professional This is rupt the solicitor’s “free sam- offer of a includes the the solicitation true when *18 proposed con- petitioner’s I therefore ple,” letter does. as Rule of Profes- Model Bar Association that American clude (1984) broadly-than sweeps no more 7.3 sional Conduct necessary interest. governmental’ a substantial to advance Supreme Kentucky supra, The Hudson, at 566. Central See permissi- petitioner’s correctly letter could that found Court bly I 7.3, be banned under Rule and dissent from the Court’s judgment. decision to reverse that
hH h-H >—I attorney advertising The roots of the in our error cases analogy professional are a defective between services and products correspondingly inap- standardized consumer and a propriate skepticism justifications about the States’ for their regulations. example, majority appeared Bates, In proof country to demand conclusive that the would be better ifoff the States were allowed to retain a rule that served “to keep inhibit the free flow of commercial and to information public ignorance.” Although S., 433 U. at 365. opinion proffered jus- contained extensive discussion of the price advertising, tifications for restrictions on the result was persuaded more than a that little bare conclusion “we are not price advertising id., harm will consumers.” See at Dismissing critique 368-379. Justice Powell’s careful implicit legislative factfinding underlay analysis, its majority simply concluding Bates insisted on that the benefits dangers. advertising outweigh Compare id., its (Powell, concurring id., n. at 391-400 my dissenting part). policy In view, that decision was not Amendment, derived from the First and it should not have displace policy been used to a different and no less reasonable regulation decision of the State whose was at issue. early experiment
Bates was an with the doctrine of com- speech, proved problematic mercial and it has to be in its application. continuing Rather than work out all the con- sequences approach, of its we should now return to the legislative inappropriately has so States the function that attorney advertising. in the been taken from them context of speech provides Hudson test for commercial Central doing today’s adequate so, doctrinal basis for decision light confirms the need to reconsider Bates of that doctrine. *19 agreed upon if I
Even that this should Court take itself the deciding attorney advertising task of what forms of are in public agree interest, I would not it what has done. arguments permitting attorneys The best favor of rules elementary principles. to advertise founded in are economic g., Stempel, Why Lawyers See, Hazard, e. Pearce, & Should Analysis Legal Be Allowed to A Advertise: Market Serv- (1983). 58 N. Y. ices, U. L. Rev. 1084 Restrictions on advertising, artificially truthful ity which interfere with the abil- suppliers price to transmit information consumers, to efficiency presumably supply reduce the of the mechanisms of being equal, and demand. Other factors this should cause (in suppliers attorneys) or enable this case to maintain a price/quality higher ratio in some of their services that is prevail. Although probably than would otherwise one could hypothesis empirically, inherently plausible. not test this it is implausible imagine Nor is it that one effect of restrictions lawyer advertising, perhaps sometimes an intended attorneys charge effect, is to enable their clients more for (of given quality) they some services than would be able to charge absent the restrictions.
Assuming, arguendo, advertising that the removal of re- efficiency strictions should lead the short run to increased provision legal agree in the I services, would that we safely long can assume the same effect in the run. The eco- argument against ignores nomic these restrictions the deli- they may play preserving cate role the norms of the profession. While it be difficult to defend this role with precise logic, powerful argu- I economic believe there is a restricting ment in favor of and that this argument very easily is at the least not refuted economic analysis. distinguishing any profession,
One feature of unlike other occupations equally respectable, is that member- ship obligation temper pur- entails an ethical one’s selfish by adhering suit of economic success to standards of conduct by legal through that could not be enforced either fiat or *20 discipline of the market. There are sound reasons to con- pursuing goal implicit tinue that is in the traditional view professional special privileges life. Both the incident to membership profession advantages privi- in the and the those leges give necessary earning living in the task of a are means goal to a that transcends the accumulation of wealth. That goal public legal profession is service, which in the can take variety legal profes- a of familiar forms. This view of the self-serving sion need not be rooted in romanticism or sancti- mony, though special of course it can be. Rather, ethical lawyers properly appro- standards for are understood as an priate restraining lawyers means of in the exercise of the unique power they inevitably political system wield in a like ours. recalling why lawyers regulated
It is worth are at all, or to greater degree occupations, why a than most other his- tory attempts extinguish lawyers is littered with failed to as special generally Lawyer a class. See Pound, R. from (1953). Antiquity Operating legal system to Modern Times reasonably tolerably that is both efficient and fair cannot be accomplished, at least under modern social conditions, with- specialized body experts. training out a trained and This is one element of what we mean when we refer to the law as a profession.” knowledge by “learned Such its nature cannot generally be made available, and it therefore confers the power temptation manipulate system justice and the manipulation for one’s own ends. Such can occur in at least ways. overly repre- two obvious One results from zealous discovery sentation of the interests; client’s abuse of the (if process example is one whose causes and effects not its cure) apparent. present purposes The second, and for problem lawyer’s relevant, more is abuse of the client for the Precisely lawyers provided benefit. because must be expertise extremely powerful, that is both esoteric and it bargain would be unrealistic to demand that clients for their arm’s-length appro- services the same manner that be priate buying choosing dry when an automobile or cleaner. physicians, lawyers subjected heightened Like are ethical they on their demands conduct towards those serve. These demands are ordinary needed because forces, market and the legal prohibitions against simply force and fraud, are insuffi- protect necessary cient the consumers of their services peculiar power specialized knowledge from the professionals possess. these
Imbuing legal profession necessary with the ethical struggle standards is a task that involves a constant with the relentless natural force of economic self-interest. It cannot accomplished directly by legal certainly rules, and it will *21 sermonizing strongest if may not succeed employed. is the tool that be experiment suggested Tradition and have a num- of formal ber and mechanisms, informal none of which is ade- quate by many itself and of which serve to reduce com- (in sense) petition among the narrow economic members of profession. examples great the A few include the efforts during century improve quality made this and breadth legal required of the education that is for admission to the attempt genu- bar; the concomitant to cultivate a subclass of profession; development ine scholars within the of bar aspire groups; associations to be more than trade strict disciplinary rules about conflicts of interest and client aban- promotion expectation attorney’s donment; and that an history voluntary public of service is a relevant factor in selecting judicial candidates. by lawyers
Restrictions on and solicitation properly significantly goal. and serve the same Such restric- day-to-day practicing tions act as a concrete, reminder to the attorney why improper any profes- it is member of this regard occupation sion to it as a trade or like other. guarantee, There is no course, that the restrictions will always they surely have effect, the desired and are not a proper goal. sufficient means to their Given their inevita- anticompetitive they moreover, effects, ble should not be thoughtlessly skeptical retained or insulated from criticism. Appropriate light been modificationshave made in the of rea- experience, changes may suggested son and and other the future. my judgment, fairly
In severe however, constraints on at- torney advertising play important can continue role preserving genuine profession. profession as a appropriate exactly scope Whatever be the of these re- given place, strictions at this time and Court’s recent deci- myopic sions reflect a belief that “consumers,” thus our theory Nation, will benefit from a constitutional that refuses recognize professionalism frag- either the essence or its necessary Compare, g., ile and Bates, foundations. e. (Powell, U. S., 370-372, at id., 400-401, and n. concurring dissenting part). way In one or an- folly approach. other, time will uncover the of this I can only hope recognize danger Court will before it is too late to effect cure. worthwhile