*1 ZAUDERER v. OFFICE OF DISCIPLINARY COUNSEL
OF THE SUPREME COURT OF OHIO Argued No. January 7, 83-2166. May 28, 1985 Decided *3 White, J., Court, opinion delivered the the in which Blackmun and Stevens, JJ., III, joined; I, II, in Parts and IV of which Brennan and Marshall, JJ., joined; I, II, V, and in Burger, Parts and which VI of Rehnquist J., O’Connor, JJ., joined. J., C. and and filed Brennan an opinion concurring part, in in concurring judgment the and part, in dissent- ing Marshall, in part, J., joined, in post, p. O’Connor, J., which 656. opinion concurring part, filed an in concurring part, in in judgment the and dissenting Burger, in part, J., Rehnquist, J., which joined, C. post, p. Powell, J., 673. took part no the decision of case. argued appellant.
Alan B. Morrison the cause for With him on the were David C. briefs Vladeck David K. Frank. appellee. argued On the III the cause for Farr
H. Bartow
Gagliardo
Angelo
H. Aultman.*
and Mark
were
J.
brief
opinion of the Court.
delivered
White
Justice
Virginia
Pharmacy
Virginia
Board v.
the decision
Since
(1976), in
Council, Inc.,
Appellant’s second effort was more ambitious. In the spring appellant placed 1982, advertisement 36 Ohio newspapers publicizing willingness represent his women injuries resulting who had suffered from their use of a con- traceptive device known as the Daikon Shield Intrauterine drawing Device.2 The advertisement featured line of the accompanied question, Daikon Shield “DID YOU USE following THIS IUD?” The advertisement then related the information: 1 The potential “[e]xpert advertisement notified the client that witness
(chemist) paid.” only fees must be other information contained in the appellant’s firm, advertisement telephone number, was name of its its address. (or IUD) An plastic coil, intrauterine device is “a spiral, or metal shape, long, cavity other about 25 mm that is inserted into the of the womb prevent conception. Its exact mode of action is unknown but it is thought implantation to interfere embryo.” Urdang with Diction ary of Current Medical Terms 220 The Daikon variety Shield is a early of IUD that was marketed 1970’s. Because of evidence that variety problems users, Shield was associated with a of health among 1980, Shield was withdrawn from the market in In 1974. the manufac physicians turer advised any should remove the Shield from it, using woman still and in Drug the Food and Administration fol lowed suit. the manufacturer campaign instituted a mass-media urging women to have the device removed. Robins See Mounts Drive to Suits, Journal, 24, 1984, p. 1, Settle Daikon National Law Dec. col. 3. *5 alleged [sic] Interuterine Device is “The Shield Daikon pelvic resulting in serious infections to have caused infertility, hys- damage, hospitalizations, tubal and unplanned alleged It is also have caused terectomies. ending miscarriages, septic pregnancies in abortions, ectopic pregnancies, full-term tubal or and abortions, you experi- If a have had a deliveries. or friend similar it is late to take action ence do not assume too against pres- law firm is manufacturer. Our Shield’s ently representing are women such cases. The cases on contingent handled basis of the amount recov- on a fee recovery, legal fees ered. If there is no no are owed our clients.” appellant’s firm, law its
The ad concluded with name of might phone number the reader call address, that “free information.” attracting clients:
The was successful advertisement inquiries regarding appellant the ad- received well over 200 initiated on behalf 106 of the vertisement, and he lawsuits him as of the advertisement. who contacted a result women interest of also aroused the the Office ad, however, The July Disciplinary filed 29, 1982, On Office Counsel. appellant charging complaint against him with a number driving arising disciplinary both the drunken violations out of and Daikon advertisements. Shield complaint, subsequently alleged amended, as 2-101(A) Disciplinary driving Rule drunken ad violated Ohio misleading, deceptive it “false, fraudulent, that was representation public”3 on a it to the because offered contingent-fee in a case—an offer that could basis criminal 2-106(C). Disciplinary Rule under With not be carried out 2-101(A) not, himself, lawyer on provides “[a] DR shall behalf firm, any lawyer with him his other affiliated or partner, his associate or of, public communication con use, participate any in the use form of false, fraudulent, self-laudatory or unfair misleading, deceptive, taining a or claim.” statement *6 the to Daikon Shield the
respect advertisement, complaint in the ad alleged running accepting employment by it, women to responding appellant had violated the following Rules: DR Disciplinary 2-101(B), which use of prohibits in illustrations by advertisements run requires attorneys, by that ads attorneys “dignified,” be and limits the informa tion that be may included such ads a list 20 items;4 2-101(B), Disciplinary entirety, provides: Rule its process
“In lawyer order facilitate the by of informed selection of potential legal services, may lawyer publish broadcast, consumers of or subject 2-103, print to DR media or radio over or television. Print published only regularly newspapers, magazines media includes and other periodicals, telephone directories, city, county classified and suburban di- rectories, law law directories and lists. The information disclosed 2-101(A) lawyer publication comply such or broadcast shall with DR [see 3,n. supra] presented dignified and be in a manner without use of drawings, illustrations, animations, portrayals, dramatizations, slogans, music, lyrics pictures, except or the pictures use of use of advertising lawyer, portrayal of a justice. or the use of the scales Only following may published information or broadcast: “(1) Name, including of law firm professional name and names of asso- ciates, telephone numbers; addresses and “(2) lawyer or more One fields of law which the or law firm is available practice, but not include a practice statement that the is limited to or in one or lawyer concentrated more fields of law or that the or law firm specializes particular in a 105; field law unless DR authorized under 2— “(3) Age;
“(4) state, Date of admission bar to the of a or federal or court adminis- agency; or trative board “(5) attended, Schools graduation, degrees with dates of and other scho- distinctions; lastic “(6) quasi-public offices; or Public “(7) Military service; “(8) legal authorships; Published “(9) Holding scientific, professional licenses, technical and and member-
ships societies; in such associations or
“(10) Foreign ability; language “(11) arrangements Whether credit cards other credit accepted; are
“(12) telephone answering hours; Office service from “recommend 2-103(A), DR which prohibits attorney himself, as a his practitioner, ing] employment, private to a has not his non-lawyer sought or associate who partner, 2-104(A), of a and DR employment lawyer”; advice regarding here) (with certain exceptions applicable which provides layman who has unsolicited advice to a lawyer given “[a] action shall not that he should obtain counsel or take legal from that advice.” accept employment resulting violated also that the advertisement complaint alleged *7 DR which that advertisement 101(B)(15), provides any 2 — rates must whether contingent-fee that mentions “disclos[e] are before or after deduction of court computed percentages costs and and that the ad’s failure to inform expenses,” (as clients that would be liable for costs to opposed legal fees) if the even their claims were unsuccessful rendered 2-101(A). The in DR advertisement violation of “deceptive” did the Daikon Shield advertise allege complaint its other than any respect ment was false or deceptive “(13) consultation; Fee for an initial
“(14) esti- Availability upon request of a written schedule of fees or an charged services; specific mate of the fee be “(15) the subject 2-106(C), provided that Contingent fee rates to DR after or percentages computed are statement discloses whether before expenses; deduction of court costs and “(16) total the Hourly rate, provided that the statement discloses that devoted charged fee be depend upon will the number of hours which must enti- particular to the and client matter to be handled for each client the charged, in obligation likely tled without to an of the fee estimate forth the setting equivalent largest print size at least print to the used information; fee “(17) specific legal services; Fixed fees for assign- “(18) Legal teaching positions, memberships, offices, committee ments, memberships associations; section and in bar “(19) legal societies; Memberships legal and offices fraternities
“(20) and addresses of only, In law directories and law lists names regularly clients and, references, consent, with their written names represented.” relating contingent-fee
omission of information ar- rangement; Disciplinary stipu- indeed, the Officeof Counsel regarding Daikon lated that information and advice litigation misleading, was not false, fraudulent, Shield drawing representa- deceptive and that the was an accurate tion of the Daikon Shield. charges against appellant by panel heard were Discipline
Board of Commissioners on Grievances and Appellant’s primary Court of Ohio. defense to the against charges restricting him was that rules the con- Ohio’s advertising by attorneys tent of were unconstitutional under Arizona, this decisions in Bates v. Bar Court’s State (1977), J., In re R. M. U. S. U. S. support provided of his contention that the State had not justification for its rules sufficient to withstand the First scrutiny appellant Amendment decisions, called for those proffered testimony expert witnesses that unfettered advertising by attorneys economically was beneficial and that appellant’s advertising particular socially was valuable public to inform it served members of the of their rights potential and of the health hazards associated with *8 Appellant put Daikon Shield. also on the stand two of the responded advertisements, women who had to his both of they legal whom testified that not have learned of their would appellant’s claims had it not been for advertisement. panel appellant’s advertising
The found use of had vio- Disciplinary panel accepted a number of lated Rules. The driving the the contention that drunken advertisement was deceptive, reasoning but its differed from that of the Office Disciplinary panel the of Counsel: concluded that because the practice plea advertisement failed to mention the common bargaining driving might deceptive in drunken it cases, be potential clients who would be unaware of the likelihood that (of offense) they guilty would both be found a lesser and be (because attorney’s liable for fees had not been con- driving). panel drunken The victed of also found that the use appellant’s of an illustration Daikon Shield advertisement 2-101(B), violated DR that the ad’s failure to disclose the potential liability client’s for costs even if her suit were un- 2-101(A) (B)(15), successful violated both DR and DR 2-101 that the advertisement constituted self-recommendation in 2-103(A), appellant’s acceptance violation DRof and that employment resulting offers of from the advertisement vio- 2-104(A).5 lated DR panel rejected appellant’s arguments regu-
The
that Ohio’s
regarding
attorney advertising
lations
the content of
were
applied
panel
unconstitutional as
to him. The
noted that nei-
regulation
ther Bates nor In re R. M. J. had forbidden all
attorney advertising and that both of those cases had in-
advertising regulations substantially
volved
more restrictive
panel
heavily
than Ohio’s. The
also relied
on Ohralik v.
(1978),
Assn.,
Ohio State Bar
court out that Bates and In re R. M. J. regulations designed prevent deceptive the use of ad- vertising recognized R. M. and that J. had that even non- might deceptive advertising if be restricted the restriction narrowly designed to was achieve a substantial state inter- requirements applicable est. The court held that disclosure mentioning contingent-fee arrangements to advertisements permissible goal ensuring potential served the clients regarding arrangements. were not misled the terms of the prevent it addition, held, the court was “allowable” to attorneys claiming expertise particular from fields of law by might in the absence of standards which such claims be preclude assessed, it was “reasonable” to il- the use of prevent attorneys lustrations advertisements and to from offering legal although advice in their advertisements, specifically identify court did not the interests served Having appellant’s these restrictions. determined that ad- Disciplinary vertisements violated Ohio’s Rules and that the application First Amendment did not forbid the of those rules appellant, appellant’s the court concluded that conduct public reprimand. warranted a
Contending
Disciplinary
that Ohio’s
Rules violate the First
discipline
Amendment insofar as
authorize the State to
him for the content of his Daikon Shield advertisement,
appellant
appeal. Appellant
filed this
also claims that the
disciplined
running
manner which he was
driving
his drunken
right
process.
advertisement violated his
to due
We
jurisdiction,
probable
(1984),
noted
HHHH
There is no
room to
longer any
doubt that what has come
to be known as “commercial
is
speech”
entitled to the protec-
tion
Amendment,
of
First
albeit to
somewhat
protection
less extensive than that afforded “noncommercial speech.”
Bolger Youngs Drug
Corp.,
Products
v.
“We have made clear that which ‘links a to a current public thereby protection debate’ entitled to the constitutional af- Corp. Central Hudson Gas & Electric speech. forded noncommercial York, Public Service Comm’n New S., company n. 5. A panoply protections the full pub- has available to its direct on comments issues, providing lic so protec- there is no reason for similar constitutional tion when such are made in the statements context of commercial transac- speech approach general on commercial restrictions
Our
settled. The States and
Federal Gov
is also
now well
prevent
the dissemination of commercial
ernment are free
misleading,
deceptive,
speech
see Friedman
false,
that is
*11
(1979),
illegal
Rogers,
proposes
1
or that
v.
440 U. S.
Pittsburgh Press Co. v. Human Relations
transaction, see
(1973).
speech that is
Comm’n,
tions. See ibid.” U. S. omitted). (1983) (footnote ease, appellant’s right placed general has no restrictions on this Ohio express opinions regarding litigation; Daikon publish facts or Shield Ohio’s only conveying opin- him Disciplinary prevent Rules from those facts and attorney. of advertisements of his services as an ions the form merits, appellee Disciplinary In its brief on the Office Counsel ad surprising ought permit appellant that the not vances the contention Court disciplinary proceedings. Ap- to raise his constitutional defenses to Ohio’s I—I I—I that ap turn to the Ohio Court’s finding We first (and advertisement his acceptance Daikon Shield pellant’s it) from ran afoul of the rules resulting against employment and accepting employment resulting self-recommendation advice. Because all advertising unsolicited from a read custom, for its audience’s broad plea least implicitly (and of the rules court applied by particularly Ohio ing self-recommendation) the rule against might suggest obviously forbid all result advertising by attorneys —a in Bates In re R. M. J. not our decisions with keeping its rules such a But the Ohio court did purport give it soliciting broad held that the rules forbade reading: only contain advertisements accepting legal employment through information or advice regarding specific legal problem. ing self- The interest served Ohio application *12 ad- appellant’s recommendation and solicitation rules of opinions vertisement is not from apparent reading and its Board of Commissioners. the Ohio Court the information and advice concerning advertisement’s as the of Counsel were, Disciplinary stip- Daikon Shield Office in nor were ulated, deceptive: fact, they entirely neither false readers that accurate. The advertisement did promise argument apparently appellant that could have chal- pellee’s is because declaratory judg- constitutionality in for a lenged the of the rules an action court, their in he was not entitled to violate them and raise ment federal ordinary juris- defensively. argument stands unconstitutionality This odd that, emphasized in prudential principles on their heads. We have often attacks on state system, preferable federal it is that constitutional our in defensively proceedings in rather than raised state-court statutes be Harris, g., Younger e. See, 401 proceedings initiated federal court. (1971). attorney disciplinary principle applicable U. 37 This as S. County Middlesex Ethics Commit- proceedings as it is to criminal cases. Assn., (1982). Bar Accordingly, it was tee v. Garden State 457 423 U. S. anticipatory an chal- appropriate appellant for to refrain from perfectly might ini- any proceedings the lenge to rules and to trust State Ohio’s assert his First Amendment provide a forum which he could tiate would rights.
lawsuits
caused
the
alleging injuries
by
Daikon Shield would
successful,
nor did it
suggest
appellant had any spe-
cial
such lawsuits
expertise
handling
other than his em-
in other such
ployment
Rather,
the advertise-
litigation.9
ment reported the
fact that
indisputable
Daikon Shield
has
an
number of lawsuits10
spawned
impressive
and advised
readers that
was
appellant
currently
such
handling
lawsuits
and was
other women
willing
represent
similar
asserting
claims.
In addition,
the advertisement
advised women that
they should not assume that their claims were time-barred—
advice that seems
completely unobjectionable
light
in many
trend
States toward a
rule”
“discovery
for determin-
when
cause of action for latent
or
ing
injury
disease ac-
appellant’s advertising
any
The absence from
expertise
claims of
promises relating
quality
appellant’s
to the
services renders the Ohio
Supreme Court’s statement
that “an
lawyer
allowable restriction for
ad
vertising
expertise”
point.
is that of asserted
Appellant
beside the
stated
only
represented
that he had
other women in Daikon
litigation
Shield
—a
Although
statement of fact not
itself inaccurate.
our decisions have left
open
possibility
may prevent
attorneys
that States
making
from
non-
regarding
quality
services,
see Bates v. State
verifiable claims
of their
Arizona,
Bar
350;
(1977), they
permit
U. S.
do not
a State to
prevent
attorney
making
from
regarding
accurate statements of fact
practice merely
possible
nature of his
because it is
that some readers will
J.,
in those areas. See In re R. M.
expertise
infer that he has some
191, 203-205
U. S.
10By 1979, it was “estimated that 2500 claims
made
[had] been
...
injuries allegedly
Dyke,
[the
caused
Daikon Shield].” Van
The Daikon
Liability,
A “Primer” in
1, 3,
Shield:
IUD
6 West.
L.
St. U.
Rev.
n. 7
(1978). By mid-1980, the
4,000.
number
lawsuits had risen to
Bamf
*13
ord,
Losing Court,
Daikon
in
2
Lawyer
Shield Starts
American
(July
31
1980). By
reported
of
it
end
1984 was
that the manufacturer had set
judgments
6,289
3,600
tled or satisfied
cases and that over
cases were
pending.
still
See Robins Mounts Drive to
Suits,
Settle Daikon
National
Journal,
24, 1984,
1,p.
Law
Dec.
col. 3. Plaintiffs have succeeded in win
ning
jury
against
favorable settlements and
verdicts
the Shield’s manufac
g.,
Co.,
e. Worsham v. A. H. Robins
See,
(CA11
turer.
Because statements the Daikon deceptive, impose Shield were not false or our decisions on the establishing prohibiting State the burden of that the use of directly such statements solicit or obtain business governmental advances a substantial interest. The exten- opinion sive in the citations of the Board of Commissioners to opinion our Assn., Ohralik Ohio Bar State U. S. (1978),suggest application that the Board believed that the appellant’s advertising the rules to served the same interests justify in-person this that Court found sufficient to the ban on agree. solicitation at issue Ohralik. We cannot Our deci- largely grounded sion Ohralik was on the substantial dif- advertising ferences between face-to-face solicitation and the permissible In-person by we had held in Bates. solicitation lawyer, practice possibili- we was a concluded, rife with overreaching, privacy, ties for invasion of exercise outright Ohralik, undue influence, fraud. atS., in-person 464-465. addition, we noted that solicitation presents unique regulatory difficulties because it is “not open public scrutiny.” or otherwise Id., visible 466. unique in-person by lawyers, These features of solicitation justified prophylactic prohibiting lawyers held, we rule engaging pecuniary gain, from such solicitation for but point “in-person we were careful to out that solicitation 11 In explicitly adopted Ohio Court the rule action injury immediately, “[w]hen does not manifest itself the cause upon medi plaintiff arises competent date on which is informed authority which, by the injured, upon cal that he has been the date on he has diligence, exercise reasonable he should have become aware Corp., comes first.” O’Stricker v. Jim Walter injured, whichever been 84, 90, 3d St. N. E. 2d Ohio 732. *14 by lawyer par employment
professional on a a does not stand availability advertising terms of truthful about with legal Id., 455. routine services.” apparent in the concerns that moved Court It is that Although present sensitive here. some are not Ohralik poor appellant’s taste, advertisement have found souls privacy hardly who have invaded the of those it can be said to significantly, appellant’s advertisement —and More read it. print advertising generally poses of over- much less risk — advertising may convey reaching Print or undue influence. effectively, in most more or less but information and ideas personal presence force of the it will lack the coercive cases, printed addition, advertisement, In of a trained advocate. by attorney, personal initiated an is unlike a encounter potential likely pressure imme- on the client for an to involve yes-or-no representation. Thus, to the offer of diate answer conveying printed information advertisement is a means of that more conducive to reflection and about services part per- of the consumer than is exercise of choice on attorney. Accordingly, an the substan- solicitation sonal in-person justified the ban on solicitation tial interests justify discipline imposed upheld on cannot Ohralik appellant the content of his advertisement. justification for restraints on traditional
Nor does the lawyers up litigation”— will “stir fear solicitation—the imposed evaluating justify this case. the restriction important justification, proffered it is to think about this say might that the mean to State has interest it what preventing stirring up litigation. possible lawyers from It is litigation an evil that the is entitled itself as State to describe litigation quantities of so- consumes vast all, combat: after tangible produce value but much little of dis- resources cial litigant,” Judge unpleasantness. “[A]s a Learned cord and beyond “I dread a almost observed, should lawsuit Hand once anything Hand, of sickness and death.” L. else short the Heart of the Matter, of Trials to Reach Deficiencies *15 City 3 Association of the Bar the of of New Lectures York, Legal Topics on proposition
But we cannot endorse the that lawsuit, a as society is an evil. the such, centuries, Over course our upon litigation redressing has settled civil a means as grievances, resolving disputes, vindicating rights when other means fail. There a is no cause for consternation when person good who believes in faith on the basis of accurate regarding legal rights information his that he a has suffered legally cognizable injury remedy: turns to the courts for a accept always “we cannot the notion that it is better for a person wrong silently by legal to suffer a than to redress it action.” Bates v. Arizona, State Bar at 376. S., That our citizens have access to their civil courts is not an evil regretted; system to be it rather, is an attribute of our justice ought pride. in which we to take The State is by denying entitled to interfere with that access its citizens legal rights. Accordingly, accurate information about their justification discipline imposed it is not sufficient for the on appellant nondeceptive advertising that his truthful and had tendency encourage a to or did in fact others to file lawsuits. argue encourage- not, however, State does that the litigation inherently ment of is evil, nor does it assert an discouraging particular litigation interest in form of that appellant’s advertising posi- solicited. Rather, State’s although appellant’s advertising may tion is that itself have may salutary been even have had the effect of harmless — informing persons rights some of which other- would prohibition wise have been unaware —the State’s on the use legal advertising by attorneys advice and information prophylactic attorneys, rule that is needed to ensure that to an effort secure business for not use themselves, do misleading advertising up litigation false or to stir meritless Advertising by against attorneys, innocent defendants. presents regulatory claims, difficulties that State are differ- presented by from those ent kind other forms of adver- products tising. most consumer Whereas statements about indeterminacy subject of statements verification, are impossible impractical out it if not to weed about law makes misleading. that are false or accurate statements from those prophylactic if A the State is to rule is therefore'essential ensuring citizens vindicate substantial interest that its its litigation by encouraged engage that are not statements ambiguous outright false. are at best and at worst prophylactic argument apply it rule The State’s punish appellant notwithstanding particular ad- that his justify allegedly vertisement has none of the vices *16 rule is tension with our insistence that restrictions involv- deceptive narrowly ing speech that is itself be commercial purposes. Hudson crafted to serve the State’s See Central in In Electric, Indeed, & at 569-571. re S., Gas U. may not R.M. J. we went so far as to state that “the States types potentially place prohibition absolute on certain may misleading if information ... the information also be presented way deceptive.” S., that is not argument, 203. The must that this dictum then, State’s is incorrect—that there are some circumstances which prophylactic possible rule is the least restrictive means of achieving governmental interest. a substantial Cf. Ohralik Assn., v. Bar at 467. S., Ohio State U. question
We need
address the theoretical
not, however,
prophylactic
permissible in
area,
whether a
rule
this
is ever
presented
for we do not believe that the State has
a convinc-
ing
necessary
argument
case for its
that the rule before
isus
governmental
to the achievement of a substantial
interest.
problem distinguishing
The State’s contention that the
deceptive
nondeceptive legal advertising
and
is different
by
problems presented
advertising generally
kind from the
unpersuasive.
is
argument proceeds
premise The
from
it is
State’s
intrinsically
distinguish
containing
difficultto
advertisements
legal
deceptive from those that are
advice that is false or
truthful and
much more so than is the case with other
helpful,
goods or services.12 This notion is belied
the facts before
us:
statements
Daikon Shield
appellant’s
regarding
litigation
were in fact
Nor
verifiable and
accurate.
easily
completely
is it true
from
that distinguishing deceptive
nondeceptive
claims in
other
than
advertising involving products
legal
services
ais
comparatively simple
straightforward proc-
ess. A brief
of the
of case law that has devel-
survey
body
as a result of the Federal Trade Commission’s efforts to
oped
§
out its mandate under
5 of the Federal Trade
carry
Com-
mission Act to eliminate “unfair or
acts or
deceptive
practices
in .
45(a)(1),
§
. .
15 U. S. C.
reveals that distin-
commerce,”
in virtually
from
guishing
nondeceptive advertising
deceptive
field of commerce
resolution
any
may
exceedingly
require
the consideration
technical factual
issues and
complex
g.,
e. Warner-Lambert
See,
of nice
of semantics.
questions
FTC,
Co. v.
(1977);
Were we to State’s this case, we preventing government would have little basis for from suppressing nondeceptive other forms of truthful and adver- tising simply spare distinguishing itself the trouble of such advertising deceptive advertising. from false or The First protections speech Amendment afforded commercial would arguments prevail. mean little if indeed such were allowed to involving speech Our recent decisions commercial have been grounded in the faith that the free in- flow commercial enough justify imposing formation is valuable on would-be regulators distinguishing the costs of the truthful from the helpful misleading, false, the from the and the harmless from presented ap- the harmful. The value of the information pellant’s advertising is no less than that contained in other advertising appellant’s forms of ing indeed, insofar as advertis- — acquaint persons legal rights tended to with their who might otherwise be shut off from effective access system, undoubtedly many it was more valuable than other advertising. Prophylactic forms of restraints that would 13The evidently American Bar Association shares the weeding view that out misleading advertising by false or attorneys advertising from nonmisleading accurate and impractical is neither unduly nor burdensome: the ABA’s new Model Rules of Professional regula Conduct eschew all tion of the content of advertising that is misleading.” not “false or ABA Model Rule of Professional report Conduct 7.2 A recent staff the Federal Trade Commission application has also concluded that of a deceptive” attorney “false or advertising standard to pose prob would not presented by lems distinct from those regulation advertising gener ally. See Federal Report, Trade Commission Improving Staff Consumer Legal Access to Services: The Removing Case for Restrictions on Truthful *18 Advertising 149-155 unacceptable applied advertising generally as to commercial unacceptable equally applied appellant’s are as therefore to attorney may advertising. disciplined An not be for solicit- through ing legal printed advertising containing business nondeceptive regarding truthful and information advice legal rights potential clients.
I—I > 2-101(B)’s application of DR restriction on illustrations advertising by lawyers appellant’s advertisement fails application for much the same reasons as does the of the self- recommendation and solicitation rules. The of illus- use pictures important trations or in advertisements serves com- municative functions: it attracts the attention of the audience message, impart to the advertiser’s and it also serve to directly. Accordingly, information commercial illustrations protections are entitled to the First Amendment afforded speech: verbal commercial restrictions on the use of visual expression advertising scrutiny media of must survive under the Central Hudson test. Because illustration for appellant disciplined representation which was is an accurate likely of the Daikon Shield and has no features that are deceive, mislead, reader, confuse the burden is on present governmental justify- State to a substantial interest ing applied appellant the restriction as and to demonstrate through that the restriction vindicates that interest the least restrictive available means. 2-101(B) strongly suggests pur
The text of DR that the pose of the restriction on the use of illustrations is to ensure attorneys dignified “in advertise is, manner.” There suggestion actually no that the course, illustration used appellant undignified; was thus, it difficult to see how the application appellant directly of the rule to in this case ad preserving dignity vances the neys. State’s interest of attor fundamentally, although undoubtedly More the State *19 ensuring attorneys has substantial in interest that its be- dignity have with in decorum the courtroom, we are attorneys unsure that the State’s desire that maintain their dignity public in their communications with the is an interest enough justify abridgment substantial of their First rights. Amendment persuaded Even if that were the un- case, we are undignified behavior would tend to recur so prophylactic often as to Carey warrant a rule. As we in held Population International, Services S. (1977), possibility popula- the mere that some members of the might advertising embarrassing tion find or offensive cannot justify suppressing it. The same must hold true for adver- tising might that some members of the bar find beneath their dignity. arguments
In its before this Court, the State has asserted that the restriction on illustrations serves a somewhat dif- purpose, supposedly by pro- ferent akin to that served offering legal advertising. hibition on the advice advertising by attorneys, use of illustrations the State suggests, unacceptable public creates risks that the will be manipulated, misled, or confused. Abuses associated with advertising particularly visual content of are difficult to police, because the advertiser is skilled subtle uses of illus- play trations to convey on the emotions of his audience and impressions. may produce false Because illustrations their by operating effects on a subconscious level, the State ar- gues, point any particular it will be difficultfor the State to prove misleading illustration manipulative. that it is again, argument purposes Thus, once the State’s is that its only through prophylactic can be served rule. arguments
We are not convinced. The State’s amount to unsupported little more than assertions: nowhere does the any authority any State cite evidence or kind for its con- potential tention that the abuses associated with the use of attorneys’ advertising illustrations cannot be combated any means short of a blanket ban. Moreover, none of the arguments particular State’s establish that there are evils attorneys’ associated with the use of illustrations in adver- probably tisements. because it Indeed, deci- rare that regarding consumption sions services are based on a assumptions qualities product consumer’s about represented visually, lawyer’s can be illustrations adver- *20 probably likely tisements will be less to lend themselves to misrepresentations material than in illustrations other forms advertising. of acceptance argument
Thus,
of the State’s
would be tanta-
adoption
principle
may prohibit
mount to
of the
that a State
pictures
the use of
or illustrations in connection with ad-
vertising
any product
simply
strength
or service
on the
general argument
that the visual content of adver-
may,
deceptive
tisements
under some
be
or
circumstances,
manipulative.
prophylac-
But as we stated above, broad
may
lightly justified
protections
tic rules
not be so
if the
speech
afforded commercial
are to retain their force. We
persuaded
identifying deceptive manipulative
are not
that
or
advertising
intrinsically
uses
in
of visual media
is so
burden-
forgo
some that the State is entitled to
that task
favor of
the more convenient but far more restrictive alternative of
experience
a blanket ban on the use of illustrations. The
again,
Although
agency
the FTC is,
instructive.
has
deceptive
not found the elimination of
media
uses of visual
advertising
simple
to be a
task, neither has it found the
impossible
many
agency
task
one:
has
instances,
identifying
suppressing
decep-
visually
succeeded
advertising.
g.,
Colgate-Palmolive
See,
Co.,
tive
e.
FTC
generally
V assessing validity Appellant contends that of the Ohio discipline him for his failure to Court’s decision to in the Daikon advertisement the information include Shield might significant litigation that clients be liable for costs even precisely the same if their lawsuits were unsuccessful entails validity inquiry determining the of the restrictions on as advertising In other he words, content discussed above. suggests that the must establish either that the ad- State required disclosure, would be false vertisement, absent deceptive requirement some or that the disclosure serves governmental preventing substantial interest other than de- ception; he must establish moreover, contends the State requirement directly that the disclosure advances the rele- governmental interest and that it constitutes the least vant doing surprisingly, appellant so. Not restrictive means that the has failed to muster substantial eviden- claims State *21 tiary support any findings required support the to restriction.
Appellant, however, overlooks material differences be-
requirements
outright prohibitions
tween disclosure
on
attorneys
speech.
requiring
willing-
advertise
who
their
represent
contingent-fee
ness to
clients on a
basis to state
expenses
if
that the client
have to bear certain
even he
attempted
prevent attorneys
loses, Ohiohas not
to
from con-
public;
only
veying
required
information to the
it has
them to
provide
might
somewhat more information than
other-
present.
inclined to
to be
have,
sure,
wise be
We
held that
compulsion speak may
in
be
some instances
as violative of
speech.
prohibitions
g.,
Amendment as
on
e.
See,
the First
(1977);
Maynard,
Wooley 430 U.
705
Miami Herald
S.
Publishing
Tornillo, 418
241
in
Indeed,
Co. v.
U. S.
Virginia
Barnette,
Bd.
Ed. v.
We disclosure do not im- plicate rights the advertiser’s First Amendment at all. We recognize unjustified unduly burdensome disclosure requirements might by chilling offend the First Amendment *22 protected speech. commercial But we hold that an adver- rights long adequately protected tiser’s are as as disclosure requirements reasonably are the State’s related to interest preventing deception of consumers.14 reject appellant’s subject We contention that we should disclosure re quirements analysis to a strict “least restrictive means” under which application appellant requirement The to State’s attorney advertising availability contingent- that an his on a pay fee basis disclose that clients will to if have costs even case) (assuming their lawsuits are unsuccessful that the to be easily passes Appellant’s muster under this standard. ad- public recovery, “if vertisement informed the there is no by no fees are owed our clients.” The advertisement “legal makes no mention of the distinction between fees” and layman meaning to “costs,” and a not aware of of these suggest employ- terms art, of the advertisement would ing appellant proposition rep- would be a no-lose in that his losing entirely resentation a cause would come free of charge. assumption poten- The that substantial of numbers hardly speculative tial clients would be so misled is one: commonplace public it is a that members of the are often un- meanings aware of the technical of such terms as “fees” and ordinary usage, might that, “costs”—terms be vir- well tually interchangeable. possibility deception When the require is as self-evident as it is case, this we need not must by be struck down if are there other which pur- means the State’s poses may Although subjected outright prohibitions be served. we have speech on analysis, our such all discussions restraints on commercial speech requirements have recommended disclosure accept- as one able less restrictive alternatives to suppression See, actual speech. g., Electric, e. S., Central Hudson Gas & Because U. 565. First implicated by Amendment interests requirements disclosure are sub- stantially than speech actually weaker those at stake when is suppressed, appropriate we do not it requirements think strike down such merely possible because other means which might pur- State achieve its poses hypothesized. Similarly, can unpersuaded be by appellant’s we are argument that a disclosure requirement subject to attack if it is “under- is, get inclusive” —that if it does not at all problem facets it is de- signed general matter, to ameliorate. As a governments entitled are problems piecemeal, policies attack rights save where their implicate so scrutiny See, fundamental that strict must applied. g., Zablocki e. Redhail, speaker S. right U. of a commercial to divulge accurate regarding information his services is not such funda- right. mental
the “conduct a of the . . . survey public State to before it determine that had a [may] tendency [advertisement] Co., FTC Colgate-Palmolive S., to mislead.” The that it is 391-392. State’s position deceptive employ that refers to arrangements with advertising contingent-fee out the client’s for costs is reasonable mentioning liability that information enough support requirement regarding the client’s disclosed.15 liability costs be
15Appellant suggests required by Supreme that the disclosures Ohio unduly Court would fact be burdensome and would tend to chill advertis ing contingent-fee arrangements. Evaluation of this claim is somewhat light specify precisely difficult in of the Ohio court’s failure to what disclo gist The required. report sures were of the of the Board of Commis however, point, appellant’s advertising poten sioners on this was that was tially deceptive impression that if standing because it “left there were recovery, nothing.” App. no the client would owe to Juris. 14a. Statement report attorney Accordingly, suggests at a minimum that an advertis ing contingent fee must disclose that a client be liable for costs even report opinion if the is unsuccessful. and the of the lawsuit The Ohio Supreme suggest attorney’s contingent-fee Court also that the rate must ibid.; 48, 883, disclosed, be 461 N. E. 2d see Ohio St. 3d intrinsically burdensome; they certainly requirement Neither seems applied appellant, cannot said who be to be unreasonable as included regarding his advertisement no information whatsoever costs and fee any provide finding rates. This case does not factual basis for that Ohio’s unduly requirements disclosure are burdensome. vagueness opinion regarding precisely Ohio Court’s attorney mentioning
what an must disclose in an advertisement a con- tingent is, however, noting fee unfortunate. It is also worth that DR 2-101(B)(15), only explicit reference in the rules to a disclosure Ohio requirement involving contingent fees, require any does not on its face dis- except contingent-fee closures when an advertisement mentions rates— appellant’s inquiry Because relevant “[a] which advertisement did not do. attorney appraising a decision to disbar is whether the stricken from the can deemed to have on notice that the courts would condemn rolls been removed,” Ruffalo, the conduct for which he was In re 390 U. S. (1968) (White, J., result), may concurring in it well be that for Ohio actu- ally attorney requirements to disbar an on the basis of its' disclosure as point significant process have been worked out to this would raise due appellant’s omis- concerns. Given the reasonableness of the decision I—I <1 *24 Finally, appellant’s argument we address that he was de- procedural process by nied due the manner in which disci- pline imposed was on him in connection with his drunken driving Appellant’s advertisement. contention is that the theory by Supreme relied on the Ohio Court and its Board of Commissioners as to deceptive how the advertisement was theory was different from the asserted the Office of Dis- ciplinary complaint.16 agree Counsel its We cannot that discrepancy guarantee this process. violated the constitutional of due discipline Under the responsibility law of bar Ohio, is the Supreme § the Ohio 2(B)(1)(g). Court. Ohio Const., Art. IV, The Discipline Board of Commissioners on Grievances and formally only body discipline serves as a that recommends to Supreme authority impose it discipline Court; has no to (16)-(20). V(2), itself. See Govt. Bar Rule That the Board of Commissioners chose to make its recommendation of dis- cipline reasoning on the basis of different from that of the Disciplinary Officeof Counsel is of little moment: what is im- portant put is that appellant the Board’s recommendations on charges notice of the he had to answer to the satisfaction of Supreme Appellant Court of Ohio. does not contend opportunity respond that he was afforded no to to the Board’s appear provide recommendation; indeed, the Ohio rules ample opportunity response for to Board recommendations, appears appellant and it opportu- that availed himself of that potential sions created the deception public, however, we see no infirmity in a decision to public reprimand issue a on the basis of those And, course, omissions. were Ohio to articulate its disclosure rules regarding contingent way fees such a provided guide a sure advertising attorney, to the neither the Due Process Clause nor the First preclude Amendment would penalty disbarment as a for the violation of those rules. supra, See at 634. respond
nity.17 opportunity The afforded notice and appellant satisfy due were sufficient the demands of process.18
VII public reprimand issued a in- Ohio Court opinion finding appellant corporating by reference its 2-101(A), 2-101(B), Disciplinary 2-101 Rules had violated 2-104(A). (B)(15),2-103(A), judgment That is affirmed appellant’s in- that it on advertisement to the extent is based driving volving representation in drunken cases his terms of regarding contingent- his and on the omission of information arrangements in his Daikon advertisement. But fee Shield *25 reprimand appellant’s was based on use of insofar as the suggests prejudiced by inability present 17 Appellant that he was his relating to the Board’s factual conclusion that it was a common evidence charged driving plead guilty to lesser practice persons for with drunken case, process objection appellant’s If this were in fact the due offenses. appellant probably But does not —and cannot— might be more forceful. pleas in seriously dispute guilty to lesser offenses are common drunken eases, argue precluded arguing from driving nor does he that he was before improper the Supreme that it was for Board of Commission the Ohio Court prevalence pleas. of such these judicial ers to take notice of the Under circumstances, process Supreme in the we see no violation of due Ohio American acceptance the factual conclusions. See Court’s of Board’s Co., Assns., Transportation 133, Trucking Inc. v. Frisco 358 U. S. Ruffalo, In re (1968), is mis 18 Appellant’sreliance on S. in majority change in that case did hold that a the Although the placed. petitioner during proceedings before the Ohio Board of charges against the that was process, the feature of that case violated due Commissioners very change was such that the evidence particularly offensive was that the became, charges original in of the under put petitioner the defense on Thus, case, original charges charges, inculpatory. in that the revised id., 551, petitioner pre lulled the into “trap,” at functioned as charges under “irrevocably his disbarment senting assur[ed] evidence that Id., case, the variance n. 4. In this between yet made.” at not Disciplinary and the Board of Commission theory Counsel Office appellant. prejudicial effect on ers had no such 2-101(B) in illustration his advertisement violation DR in his his offer of advice advertisement violation and 2-103(A) 2-104(A), judgment DR and reversed.
It is so ordered. part in took no the decision of this case. Justice Powell with Brennan, Justice whom Justice Marshall joins, in the concurring part, and concurring judgment part, dissenting part. fully agree discipline
I with the Court that State attorneys by publishing newspaper who solicit business ad- nondeceptive contain vertisements that “truthful and in- regarding legal rights potential formation and advice nondeceptive illustration[s].” clients” and “accurate and join I Ante, 649. therefore Parts I-IV of the Court’s opinion, join judgment I the Court’s forth in set Part VII public to the extent it reverses the Court of Ohio’s reprimand appellant Philip Q. Zauderer for his viola- 2-104(A). Disciplinary 2-101(B), 2-103(A), tions of Rules qualifications, agree some I With also with the conclusion opinion may impose in Part V of the Court’s that a State commercial-advertising requirements disclosure that are *26 “reasonably preventing related to the State’s interest in de- ception agree, of consumers.” at 651. I Ante, do not how- vaguely expressed ever, that the State Ohio’s disclosure requirements fully satisfy any in standard, this and I event punishment alleged believe that Ohio’s of Zauderer for his requirements important infractions of those violated due process guarantees. and First Amendment I addition, punished the in believe manner which Ohio has Zauderer publishing driving” the “drunk advertisement violated funda- principles procedural process. mental due I therefore part part concur in opinion, in and dissent from VPart of the Court’s judgment dissent Part from and from VI, dissent set in forth Part insofar it VII as affirms the Court advertise- “based on public reprimand appellant’s Ohio’s in driv- ment his terms drunken representation involving his omission information cases and on the regarding ing in Daikon advertise- his Shield contingent-fee arrangements Ante, ment.” at 655.
I A that the First Amendment’s protec- Court concludes is satisfied so as a disclosure speech long tion of commercial related” to consumer “reasonably preventing is requirement be vio- it that this standard deception, suggests “might” and “un- if “unjustified” lated a disclosure were requirement Ante, at 651. I with the Court’s agree burdensome.” duly only relationship” inquiry somewhat “reasonable amorphous that it with the standards understanding comports on forth our commercial-speech more set precisely previous standards, those of commercial regulation cases. Under disclosure through require- affirmative speech —whether only “reasonable” outright ment or through suppression1 —is that, in reasoning appears premise to rest on Much of the Court’s context, impli “the First Amendment interests commercial-speech at substantially those requirements cated are weaker than disclosure speech Ante, 652, I be actually suppressed.” when n. 14. stake and greatly lieve the Court overstates the distinction between disclosure First noted in suppression these circumstances. We have traditional as publication requirement “operates that an affirmative Amendment cases regulation forbidding [some as a the same sense statute or a command matter,” compulsion publish specified publish and that “a one] to ” ‘ sub published’ raises which “reason” tells should not be therefore [one] Publishing Co. First concerns. Miami Herald stantial Amendment advertising Tornillo, 241, compulsion Such U. S. be permissible, agree context and I frequently will the distinction analysis. suppression supports tween disclosure some differences and satisfy the Nevertheless, n. requirements See disclosure must infra. demonstrably tenets of commercial-speech basic doctrine: must no fur directly extend interests, they may advance substantial state J.,M. than In re R. “reasonably necessary” ther interests. serve those Public (1982); Corp. v. S. Electric Central & Hudson Gas *27 (1980). York, 557, New Comm’n 447 564-565 Service U. S. legitimate to the extent that a can State demonstrate a and regulation. substantial interest to be achieved In re (1982); R. J., 191, M. 455 U. S. Hudson Central Gas & Corp. Electric v. Public Service Comm’n New York, regulation 557, U. S. Moreover, must di- rectly “may only advance the state interest and extend as far Id., as the interest it serves.” at 565. See also at 564 id., (“[T]he regulatory technique proportion [the must be to interest”). imposes regulations State’s] Where the State to guard against potential deception “the for confusion” speech, regulations “may commercial those be no broader reasonably necessary prevent deception.” than In re supra, Virginia Pharmacy J., R. M. at 203. See also Board Virginia Inc., v. Citizens Consumer Council, 425 U. S. (1976) (disclosure requirements permissible 24n. 772, only are necessary prevent [the to the extent “are ad- being deceptive”); from] vertisement Bates v. Bar State (1977)(States may require Arizona, 433 U. S. “some supplementation limited ... so as to assure that the con- misled”) added).2 (emphasis sumer is not Because of the First Amendment values at stake, courts scrutiny applying must exercise careful these standards. rely “highly speculative” Thus State on or “tenu- agree 2 I that Zauderer’s analysis “least restrictive means” is miscon commercial-speech ceived the context of requirements. disclosure See ante, 651-652, argues at n. 14. Zauderer in prevent Ohio’s interest deception ing effectively consumer could more through be achieved direct regulation contingent-fee agreements rather through themselves than compelled in advertising. Appellant disclosures Brief for 41-43. As we however, repeatedly emphasized, have States have a substantial interest ensuring advertising Virginia Phar misleading, is not see itself macy Council, Virginia Inc., Board Citizens Consumer S., 771-772, regulation underlying substantive conduct does potential deception body not remove the in the of the advertisement. Beyond this, however, requirement “reasonably disclosure related” advertising only truth in to the extent that it set satisfies the standards forth above in text.
659 carrying demonstrating arguments in its burden of ous” commercial-speech regulations. legitimacy Central of its Corp. Electric v. Public Comm’n Hudson & Service Gas regulation supra, at 569. is addressed York, New Where deceptive advertising, allegedly instead the State must inherently likely advertising that the either “is demonstrate showing that to deceive” or must muster record evidence advertising particular has fact been “a form or method supra, deceptive,” at J., 202, In re R. M. and it must simi directly larly regulations propor that the demonstrate deception. tionately remedy failed Where States have showings, repeatedly we have struck down to make such challenged regulations.3 acknowledges,
As the Court it is “somewhat difficult” requirements apply “in these standards to Ohio’sdisclosure light specify precisely what of the Ohio court’s failure to required.” at n. 15. It is also Ante, 653, disclosures were precisely re- somewhat determine what disclosure difficult to today. Supreme quirements approves The Court the Court imposed overlapping require- appears three of Ohio to have analyzed under the First each must be ments, of which (State J., g., supra, e. R. M. 3 See, 200, justify In re at n. 11 must Corp. Electric Central Hudson Gas & light “experience”); restriction Bar York, supra, v. Public Service Bates v. State 570; Comm’n Newof at Associates, Arizona, Inc. v. Will Linmark 350, (1977); S. 381 (1977) (“The ingboro, 431 U. S. 85, demonstrates that re record here 95 needed”); Virginia failed to is spondents restriction] establish that [their Inc., Pharmacy Council, supra, Board Virginia at Citizens Consumer v. (Commonwealth’s justifications also inspection”). on “close See 769 failed Metromedia, (Brennan, (1981) Inc. v. J., Diego, San 490, 453 U. S. concurring judgment). evaluating necessary form and content gained disclosure, “enlightenment of course guided courts should be experience,” are “often regulatory because authorities from administrative FTC than are courts to matters. position determine” such better J., R. M. Co., (1965); cf. In re 374, Colgate-Palmolive 380 U. S. context, supra, Particularly in this Amendment how First n. 11. ever, only sup deference to the extent are such merit determinations ported by explanation. evidence and reasoned Amendment standards set forth above. First, the court con- lawyer cluded that “a advertisement which refers to contin- gent fees” should indicate whether “additional costs . . . might be assessed the client.” 10 Ohio St. 3d 44, 48, report N. E. 2d of the Board of Com- Discipline missioners on Grievances and of the Ohio explained requirement necessary Court that such a guard against impression recovery, “the if there were no *29 nothing.” App. the client would owe to Juris. Statement agree given gen- I 14a. with the Court’s conclusionthat, public’s unfamiliarity eral with the distinction between fees may require advertising attorney and a costs, State an in- to potential clude a costs disclaimer so as to avoid the for misun- derstanding, provided required ante, at disclaimer 653— reasonably necessary prevent is “no broader than to the de- ception,” supra, J., In re R. M. at 203. report opinion provide attorney
Second, the and that an advertising availability contingent-fee his on a basis must “specificallyexpres[s]” his rates. 10 3d, 48, Ohio St. at 461 App. N. E. at see 2d, 886; also to Juris. 14a. The Statement analysis requirement Court’s of this the Court char- —which “suggestion],” a acterizes as at n. 15—is ante, 653, limited passing requirement to the observation that the does not intrinsically question “see[m] The burdensome,” ibid. burden, is irrelevant unless the State however, can first rate-publication requirement directly demonstrate that the proportionately furthers a “substantial and interest.” In re attorney’s 203. J., S., R. M. at Yet an failure to specify percentage particular advertising a rate when he that accepts contingent-fee way cases on a basis can no be said likely “inherently at deceive,” id., 202, to the volu- to be single sug- fails to reveal a minous record this case instance proved experience gesting a failure has actual that such any any point deceptive.4 at has Ohio identified Nor other 4 evidence and introduced no Disciplinary Counsel made no Office Board of arguments question, and the concerning this Commissioners did interest” be served such a “substantial that would require- ment. well be able to might State demonstrate Although rate is to publication necessary prevent deception to serve some other substantial it must do so interest, pursu- ant to the structured standards carefully commercial-speech in order to ensure the full evaluation of consid- competing erations and to discrimination guard against impermissible different of commercial n. among categories speech. 7, See Ohio has made no such demonstration here. infra.5 Third, the Court of Ohio with the Board of Supreme agreed Commissioners that Zauderer had acted fail- unethically “by ing fully to disclose the terms of the fee contingent arrange- ment which was intended to be entered into at the time of the advertisement.” 3d, 47, Ohio St. publishing the issue. The passing address Court of Ohioreferred in contributing “purposes clarity.” 44, rate disclosure as 3d OhioSt. nothing 461 N. E. 2d But there this record to suggest simple contingent unclear, reference fees is and such cur- sory “highlyspeculative” arguments are unacceptable substitute required regulating reasoned evaluation that is when commercial *30 speech. Central Hudson Electric Corp. Gas & v. Public Service Comm’n York, S., 569; Arizona, New see also Bates v. State Bar of of supra, at 381. failure to make such a particularly troubling Ohio’s demonstration is in light persuasive argument Zauderer’s extremely of that it is burdensome— misleading potentially attempt and fact to particular set forth a ad —to personal injury vertised “rate” for cases. argues contingent- He that his many attorneys vary fee rates —like those of substantially depending — upon unique given factual and needs of a client and the extent representation necessary of is to advance the client’s interests. specific rate subject Zauderer’s information is to qualifications numerous clarifications, spelled and all of which are in lengthy out written contract. precisely n. It was out of See concern that a set might “rate” infra. accurately encompass range potentially of required services that some objected any price of this Court by Members to attorneys disclosure in the See, g., instance. e. Bates v. Arizona, first State Bar S., 433 U. at 386 J., concurring part C. and dissenting part); id., at 392 (Burger, J., concurring part dissenting in part). approval Our (Powell, attorney price advertising previously has only extended to those services “meaningfully can which fixed rates Id., established.” at 373. (emphasis added); App. 2d, N. E. at 886 see to State- Juris. ment 19a. The 14a, record indicates that Zauderer enters comprehensive personal injury into a with contract clients, spells pages one that over out several the various terms qualifications contingent-fee relationship.6 of the If Ohio
6A representative Agreement “Retainer Employment” and Contract of provides, inter alia:
“TV. ATTORNEY FEES
“l hereby agree pay Q. P. attorney represen- to Z. & A as fees for such tation, by which fees are deemed me be reasonable:
“Thirty-Three and One-Third Per Cent of the gross by amount recovered way compromise trial; prior settlement or
“Forty Per Cent gross by way amount recovered of settlement or compromise judgment any part or if a commences, trial or thereof and an appeal necessary; is not
“Forty-Five Per Cent gross by amount way recovered of settle- compromise judgment any ment or or if trial part commences, or thereof necessary. appeal and an ‘gross money “The term amount’ shall mean total amount of recov-
ered, prior any expenses, deduction for any and shall include interest awarded or recovered.
“IT AGREED IS AND UNDERSTOOD THAT THIS EMPLOYMENT A BASIS, IS UPON FEE CONTINGENT AND IF NO RECOVERY IS MADE, I WILL BE Q. NOT INDEBTED TO P. Z. & A FOR ANY SUM (EXCEPTAS ATTORNEY PROVIDED IN WHATSOEVER AS FEES HEREOF.) VIII SECTION AND COSTS OTHER EXPENSES “V. “I agree out-of-pocket understand and costs incurred or advanced
by Q. P. Z. & A in investigation the course of the handling any or litigation appeal my including, on behalf to, costs, but not limited court long telephone charges, costs, distance costs, court duplication document printing costs, postage, brief reporter fees, court report expenses, medical fees, obtaining evidence, witness costs of necessary disbursements and expenses travel Q. reasonable P. A advancing my incurred Z. & in *31 cause, I, thus, agree must be borne me. Q. to A reimburse P. Z. & for any necessary out-of-pocket such expenses it my advances on behalf. “VI. EMPLOYMENT OF AND EXPERTS INVESTIGATORS Q. may, discretion, “P. Z. & A employ in its experts medical or other experts necessary investigators my or case, connection with con- after sultation me. with
seriously “fully the[se] require means to Zauderer to disclose “unduly requirement obviously would be so bur- this terms,” Ante, to violate the First Amendment. 651. as densome” publication requirement, compelling the of detailed Such space fill information that far than ad- fee would more publication protected itself, chill the vertisement would proportion speech entirely out of commercial and would expenses charged by experts, all “I understand that fees and such includ- fees, my agree Q. I responsibility, are and to reimburse P. Z. ing witness my any expenses fees or which it incurs on A such advances or behalf. & for AND COUNSEL LEGAL ASSISTANTS “VI. ASSOCIATE may, discretion, employ Q. (including Z. & A its counsel “P. associate A) Q. lawyers of P. and law clerks or or more outside office Z. & one The cost paralegals representing or to assist it me. legal assistants attorney fees, by Q. Z. & A if assistance shall be P. out of such borne (I Q. that if P. Z. any, paid under Section IV of this contract. understand counsel, fees, any, paid if employs attorney associate a division of A& made, hereby employment I IV will be and consent to such under Section fees). and division of OF AND ADVANCED “VII. RETENTION ATTORNEY’S FEES SETTLEMENT PROCEEDS COSTS FROM may and Q. may judgment A or amount “P. Z. & receive the settlement disbursing percentage attorney’s fees from such sum. Before retain its me, of costs and ex- it deduct therefrom the amount the remainder A by Q. provided. P. Z. & herein penses advanced incurred as OF SUBSTITUTION OR DISCHARGE ATTORNEY “VIII. professional A of its Q. “P. Z. & shall be entitled to the reasonable value (and provided as V and expenses its costs other Sections services and VI) of attor- Q. I Z. A or a substitution discharge in the event P. & obtain settlement, judgment any claim for the any compromise or on neys before hereby Q. P. A retained. of which Z. & is prosecution BY CLIENT IN EVENT OF SETTLEMENT “X. COMPENSATION my if I cause of without the consent of agree that settle claim or action “I (a) Q. computed in accordance A, pay I will P. Z. & A: fee Q. P. Z. & upon recovery the final received agreement, terms of this based with the (b) provided Sec- settlement, expenses the costs as by me in the Zauderer Response Respondent Attachment A to tion V and VI.” (Bd. on Griev- No. 454 of Commr’s Interrogatories, First Relator’s Set Ohio). Discipline, S. ances and Ct. *32 legitimate preventing potential to the State’s interest in de- ception. J., R. S., 203; See In re M. 455 U. at Central Corp. Hudson Gas & Electric v. Public Service Comm’n Virginia Pharmacy York, New U. S., at 564; Board of v. Virginia Citizens Inc., Consumer at Council, S.,U. explicit 771-772, n. 24. Given the Court’s endorsement provisions, only Ohio’sother disclosure I can read Court’s telling respecting apparent requirement silence this as an implicit acknowledgment possibly pass that it could not con- stitutional muster.7
B glaring specify precisely Ohio’s failure “to what disclosures required,” were important respect. ante, 653, 15, n. in is relevant another may particular impose if
Even a State requirements, punished disclosure an advertiser not be failing to include such disclosures “unless his failure is statutory requiring violation of valid state or decisional law [advertiser] precautions prevent to label or take other Compco Corp. Day-Brite confusion Lighting, of customers.” v. Inc., 234, S. 238-239 Whether or may properly impose requirements Ohio the disclosure dis provide above, cussed it failed to Zauderer with sufficient expected he notice that was to include such disclosures punishment his Daikon Shield advertisement. The State’s process of Zauderer therefore violated basic due and First guarantees. Amendment apparently comparably imposes Ohio no sweeping require disclosure on
ments types advertisements that mention arrangements, other of fee as hourly 2-101(B) such rates or fixed-fee schedules. Cf. Ohio DR (16) (17). any the absence of supporting evidence such extremely dis — parate treatment —and there is none in this might record —one inference contingent-fee be that advertising is being impermissibly singled out for Rogers, Cf. Friedman (1979) onerous treatment. 440 U. S. 20-24 (Blackmun, J., concurring in part dissenting part); Ohralik v. Ohio Assn., State Bar (1978) (Marshall, J., 436 U. S. concurring 475-476 part and concurring judgment). govern- published rules, authorities, state nor Neither the ing precedents put re- on notice of what he was Zauderer *33 quired As the ac- advertisement. Court include the knowledges, [their] Disciplinary “on face Rules do not Ohio’s except require any men- when an advertisement disclosures appellant’s contingent-fee advertisement rates —which tions ambiguity light n. 15. of Ante, 653, not do.” at did governing be- authorities Zauderer contacted rules, unsuccessfully sought publishing the advertisement fore ethically objectionable. it would be to determine whether Disciplinary representatives of of He met the Office with asked them, Counsel, reviewed advertisement with any objections recommendations or the Office had whether concerning The or of the advertisement. the form content “he should or to advise Zauderer whether Office refused informing publish him that it the advertisement,” should not advisory opinions authority nor to to issue “does have Stipu- approve disapprove legal or service advertisements.” Respondent 27, ¶¶22, lation of Fact Between Relator and disciplinary proceedings, App. full Ohio 16. And even after acknowledges, specify as “to failed, has the Court still required,” precisely and therefore disclosures were what specify precisely law and what how Zauderer violated the discipli- precautions future he can take to avoid reasonable nary Ante, n. 15. 653, actions. at doing requires regulation of
A that “either forbids intelligence vague must that men of common act in terms so applica meaning necessarily guess as to and differ its its process of law.” Con tion, the first essential due violates (1926). nally 385, 391 Co., v. 269 U. S. General Construction “insist[s] Due Process Clause Amendment’s Fourteenth ordinary intelligence person give reason that laws may prohibited, opportunity he so that able what is to know accordingly.” City U. S. Grayned 408 act v. Rockford, (1972). par requirement “applies with 104, 108-109 This Hynes speech,” dealing force review ticular of laws with Mayor (1976); may Oradell, 425 U. 610, S. “a man required peril be the less to act at his here, because the free dissemination of ideas be the loser,” Smith v. Califor- (1959).8 nia, S. guarantees apply fully attorney disciplinary pro-
These ceedings. In re Ruffalo, U. S. Given legal profession attorney’s spe- the traditions of the and an professional training, unquestionably cialized there is some might impermissi- room for enforcement of standards that be bly vague attorney many in other contexts; an instances may properly punished responsible for “conduct which all attorneys recognize improper would as for a member of the result).9 profession.” concurring Id., at 555 (White, J., appraisal “[t]he attorney’s] [an But where conduct is one *34 immediately ap- about which reasonable men differ, not one parent any scrupulous question,” citizen who confronts the proscribed and where the State has not otherwise the con- reasonably duct in terms, clear the Due Process Clause for- punishment attorney bids for that conduct. Id., at 555-556.10 8 Buckley Valeo, (1976) curiam,); 1, See also v. 424 (per U. S. 76-82
Baggett Bullitt, 360, (1964); v. 377 U. S. Cramp v. Board 372 Public Instruction, (1961). 278, 368 U. S. 287 9Arguably vague regulations may take on clarity” “definiteness and profession’s “complex the context of the behavior,” code of and an attorney properly charged knowledge is with applicable of all disciplinary rules and Bithoney, re guidelines. (CA1 ethical 319, 1973). 486 F. 2d 324-325 Comment, See also ABA Code of Responsibility: Professional Void for (1979). Vagueness?, 671, 57 N. C. L. Rev. 676-680 notice, 10 In ensuring addition to fair vagueness guards doctrine also against discriminatory “‘harsh and against enforcement . . . particular groups Papachristou displeasure.’” deemed to merit City [official] v. Jacksonville, (1972) (citation 156, 405 U. S. omitted); see also Lawson, Kolender (1983). 352, 461 U. S. Some commentators have suggested vague disciplinary rules have been used as a tool for singling unpopular out unorthodox and attorneys See, for sanction. g., Comment, e. Controlling Lawyers by Courts, Bar Associations and
I do not believe that Zauderer’s Daikon Shield advertise obviously misleading ment can justify be said to be so as to punishment reasonably contempora the absence of a clear requiring neous rule the inclusion of certain disclaimers. “[i]f recovery, The advertisement’s statement that there is no no fees are owed our clients” was accurate on its “[tjhere nothing face, and the record to indicate that misleading” the inclusion of this information was in actual practice because failure to include a costs disclaimer. J., In re R. M. although atS.,U. 205-206.11 Moreover, might by many attorneys the statement well be viewed as carrying potential deception, Discipli the Office of nary stipulated “[t]he Counsel itself Daikon ad Shield published by [Zauderer] vertisement does not contain a false, misleading, deceptive, self-laudatory fraudulent, or unfair Stipulation statement or claim.” of Fact Between Relator Respondent App. ¶30, 17. Several other States have approved publication of Daikon Shield advertisements containing no-legal-fees the identical statement, without suggestion might deceptive.12 even a that the statement Rights-Civ. 5 Harv. 301, (1970); Comment, Civ. Lib. L. Rev. 312-314 Privilege Against Disciplinary Self-Incrimination in Bar Proceedings: Happened What Ever Spevak?, L. Vill. J. 135-136 See also n. infra. general public 11 Nomember of the complained has ever to the Office of Disciplinary Counsel about Zauderer’s Daikon Shield advertisement. Sec *35 Stipulation ond 38, ¶ of Fact Between Respondent App. Relator and 41. Instead, charges only the Office filed its complaints as a result of received from other attorneys including the local counsel for A. H. Robins Com — pany, Id., ¶¶ 39, 40, manufacturer App. Daikon Shield. 41. 12See, g., Respondent e. Brief for Support Objec Zauderer In Of His (S. (decision tions, Ohio), pp. No. DD 83-19 Ct. Disciplinary 129-130 of the (decision Board Pennsylvania); id., of the Court of at of the (decision State Disciplinary Georgia); id., Board the State Bar of at 135 of the Circuit); Florida Bar Grievance Committee for the Tenth Judicial Statement of Upon Respondent Additional Authorities Which Counsel For (S. (decision Zauderer Rely, Intends Ohio), pp. To No. DD 15-16 83-19 Ct. Disciplinary respond And the Officeof Counsel’srefusal to prepublication inquiries concerning propriety Zauderer’s wholly jus- of the advertisement undermines one of the basic allowing punishment imprecise tifications for for violations of regulations businessperson clarify commercial a can —that meaning arguably vague regulation by consulting of an government Although agree with administrators.13 I that a may upon proper showing require State a costs disclaimer prophylactic guard against potential decep- as a measure to supra, may discipline tion, see at 660, and thereafter attor- neys imposed who fail to include such Ohio had disclaimers, requirement published no such at the time Zauderer the ad- acknowledges, vertisement, as the Court at n. 15. ante, 653, punished violating The State instead has Zauderer for re- quirements prior disciplinary that did not exist to this proceeding. appears problems,
The Court
to concede these serious
not-
ing
actually
that “it
well be that for Ohio
to disbar an
attorney
requirements
they
on the basis of its disclosure
as
point
significant
have been worked out to this
would raise
Ibid,
added).
process
(emphasis
due
concerns.”
The Court
Counsel,
In re Discipline of
California);
Office of Trial
Bar
State
(Minn. 1981).
Appert
Pyle,
&
455 U. S. Inc. 384 U. S. previously that, Court has noted because tra prior principles fully ditional apply speech, restraint do not to commercial may require system State previewing campaigns “a advertising to insure will not defeat” state restrictions. Central Hudson Gas & Elec Corp. tric York, v. Public Service Comm’n New S., n. 13.
669 infirmity” “see[s] no case, this because however, Supreme publicly reprimanded Court of Ohio Zauderer disbarring rather than him. Ante, at 654, n. 15. This thoroughly unconvincing. attorney’s distinction is When an rights constitutional have been violated, we have not hesi- past disciplinary tated to reverse sanctions that public reprimand.14 were even less severe than a Moreover, public reprimand potentially in Ohio exacts a severe de- privation liberty property fully of interests that are protected by reprimand the Due Process Clause. The brands attorney as an Zauderer unethical who has violated his solemn oath of office and committed a “willful breach” of Responsibility, Code Professional and it has been published professional journals in statewide and the official reports of the Ohio Court.15 This casual Court’s gravity injury indifference to the of this inflicted on an attor- ney’s good legal profession.16 name demeans the entire In person “[a] pub- under addition, Ohio law who has been . . . licly reprimanded upon being guilty for misconduct, found subsequent suspended misconduct, shall be for an indefinite period practice permanently from the of law or disbarred V(7). light vague . . . .” Govt. Bar Rule In rules, of Ohio’s governing provide authorities’ refusal to clarification and J., R. re M. S., (private reprimand). 14 See 455 U. at 198 See also (1978) Primus, In re 412, Bates v. State (public reprimand); 436 421 U. S. Arizona, (censure). Bar S., at 358 15See, g., e. IV, V(5)(a), V(20)(a); App. Govt. Bar Rules to Juris. State $1,043.63. Ibid. ment 22a-23a. Zauderer also was taxed costs of person’s good name, honor, reputation, integrity 16 “Where a is at government him,” doing process guar stake because of what the due Constantineau, Wisconsin scrupulously antees must observed. v. Roth, Regents also Board 433, U. S. v. See U. S. (1972) (same respect “any charge seriously might with . . . that dam Paul age person’s] standing community”); [a and associations his (1976) (“[T]he Davis, (BRENNAN, J., dissenting) U. S. 722-723 en joyment good reputation recognized repeatedly of one’s name and has been being among rights enjoyed by in our cases as the most cherished of a free ”). people, concept personal falling ‘liberty’ and therefore as within the *37 guidance Zauderer, to and the Ohio Court’s “failure specify precisely required,” [are] what disclosures at ante, publish n. 15, Zauderer will hereafter advertisements contingent only mentioning peril. fees at his matter No what disclaimers he decide after the fact includes, Ohio that further have information should been included and might, attempt suspend him rules, under the force of its indefinitely potential trap from his livelihood. Such unwary attorney acting good only signifi- faith not works a process deprivation, imposes cant due also but an intolerable upon rights. chill the exercise of First Amendment See supra, at and n. 8.17 665-666,
I—I HH Disciplinary charged The of Office Counsel that Zauderer’s driving deceptive drunken advertisement was it because proposed contingent fee a criminal case—an unlawful ¶¶ arrangement Complaint under Ohio law. Amended 3-7, App. ground 22-23. Zauderer defended on the that the offer proposed contingent of a refund did not constitute a fee. concerning driving This the sole was issue the drunken ad- complained vertisement that the Office and the evidence of, arguments presented and to the Board of Commissioners question. were limited to this did not Board, however, protects only right attorneys The First Amendment the availability contingent-fee disseminate truthful information about arrangements, right public knowledge but to receive such as Associates, g., Willingboro, e. Linmark Inc. v. See, S., well. 431 U. at 96-97; Virginia Pharmacy Virginia Council, Bd. Citizens Consumer Inc., S., Many public 425 U. at 770. members of the fail to consult an at torney precisely ignorance concerning arrangements. out of fee available (Mar g., Assn., e. Ohralik v. Ohio State Bar See, S., at U. 473-475 shall, J., concurring Bates v. State part concurring judgment); Arizona, Bar S., Contingent-fee advertising, and n. 22. by providing potential information that is relevant to the vindication of legal rights, simple therefore serves interests far broader than the facilita tion of commercial barter. contingent-fee report.
even issue in mention its certified “misleading decep- Instead, it found advertisement completely theory tive” of a new on the basis as a mat- —that knowledge” “general ter of as discerned from certain “Munic- ipal reports,” driving charges many Court drunken are “in plea guilty cases . . . reduced and a or no contest to a lesser included offense is entered and the court,” received so that in such “the circumstances would fee not be App. Although refundable.” to Juris. Statement 11a. *38 argued Supreme Zauderer before the Court of Ohio that this theory Disciplinary had never been advanced the Office any opportunity object he had Counsel, that never had to judicial propriety present opposing to the notice or to connecting that evidence, and there nowas evidence him to alleged practice, adopted findings the the court the Board’s objections. acknowledging without even his 10 Ohio St. N. E. 3d, 48, 2d, 461 at 886. might ultimately
Zauderer of course not able to dis- prove theory. question the The Board’s the before Court, prediction process. per- is one of however, not but one of “A right charge against son’s to reasonable of a notice and him, opportunity right day an to be heard in his to defense—a his system jurisprudence.” court—are basic our In re (1948). 333 Oliver, 257, U. S. 273 Under the Due Process Clause, “reasonable notice” must include disclosure of “the party] specific [the meet,” Gault, issues must In re 387 U. S. (1967) added), (emphasis appraisal 33-34 1, and of “the fac- agency tual material on which the relies for decision so Transportation, that he rebut it,” Bowman Inc. v. Freight System, Inc., 281, Arkansas-Best 419 U. n. 4 288, S. (1974). guarantees fully attorney apply discipli- These to nary proceedings obviously, “lawyers enjoy also because, citizenship.” Spevack first-class v. U. Klein, S. 511, there is an notice Where “absence fair as to the procedure grievance precise reach of the and the nature of charges,” attorney given meaningful the so that the opportunity present proceed- defense, to evidence his In re Ruffalo, S., violate due at 552 ings process. added).18 (emphasis argues Court these but acknowledges guarantees, was Board’s of theories after close evidence change
“of little moment” because Zauderer had an to opportunity to the Board’s certified before the object report Ante, Court of Ohio. at 654. This is untenable. reasoning the ultimate Although Supreme Court of Ohio made held no de novo hear- it concerning discipline, determination and afforded Zauderer no evi- ing opportunity present dence the Board’s exercise of opposing surprise judicial notice. Under Ohio the court’s role was instead procedure, limited to a record review of the Board’s certified findings determine whether were of the evi- “against weight dence” or made violation of procedural guaran- tees. Cincinnati Bar Assn. Fennell, Ohio St. 2d (1980).19 119, 406 N. E. 2d All that Zauderer could do was to that the argue Board’s was report grounded a theory on that he had never been notified of that he never had with evidence of his opportunity challenge own, and to request proper procedures be followed.20 *39 attempts distinguish by explaining 18 TheCourt to the Ruffalo attorney give exculpatory of fair notice in that caused absence case the to that, testimony prompted after it the charges, inclusion of additional be inculpatory. Ante, 655, case, came n. 18. In the instant the Court assures, “particularly the absence of fair notice was not offensive” because simply it presenting might led Zauderer to from evidence that have refrain exculpatory present having inculpatory been rather than to evidence an interpretation process effect. Ibid. This guarantees constricted of due thought in I principle flies the face of what had was an “immutable” of our jurisprudence prove constitutional “the evidence used to the Govern —that ment’s opportu case must be disclosed to the individual so that he has an nity McElroy, to show that it is untrue.” Greene v. 360 U. S. 496 19 V(11)-(20). generally attorney may only Govt. Bar Rule The See file a objections findings to the along list certified and recommendations with a V(18). supporting brief. Rule Respondent Support In Objections, See Brief for Zauderer Of His (S. Ohio), pp. No. DD 83-19 Ct. 76-78. completely ignored objections.21 hold The court these To procedure meaningful that this sort of constituted a “chance in to be heard a trial of the issues,” Arkansas, Cole (1948), mockery proc- U. S. is to make a of the due guaranteed every ess of law that citizen accused of wrongdoing.
Justice The and O’Connor, with whom Chief Justice Rehnquist in Justice in join, concurring part, concurring in and in judgment part, dissenting part. join opinion, I I, II, V, Parts and VI of the Court’s and judgment except reprimand its insofar as it reverses the appellant legal on based Zauderer’s use of unsolicited advice 2-103(A) 2-104(A). agree in violation of DR I appellant properly reprimanded driving was for his drunken contingent advertisement and for his omission of fee informa- I tion from his Daikon advertisement. also concur Shield judgment Court’s Part IV. At least the context of print attorney monitoring media, task of illustrations unmanageable justify advertisements is not so as to Ohio’s opinion. I blanket ban.1 dissent from Part III of the Court’s my view, the use of unsolicited advice to entice poses enough overreaching clients undue of a risk of influence to warrant rule. Ohio’s country commonly samples
Merchants this free offer pleased by sample their are wares. Customers who are marketing likely purchase to to return more. This effective many technique may applied be of little concern when products, being troubling product dis- but it is when the opportunity unsuccessfully bring procedural mere violations the attention of constitute appellate-type obviously forum does Process *40 meaningful Due guaranteed by “chance to heard” that the be is (1948). Arkansas, Cole v. Clause. 333 U. S. 201-202 the case majority, Like the I is also express this no view as to whether Bar Ari v. State media. As the Court observed in Bates for broadcast zona, advertising on the (1977), special problems 433 U. S. “the special media will electronic broadcast warrant consideration.” pensed professional every advice. Almost State restricts attorney’s ability accept employment resulting an from un- legal persuasive solicited advice. At least can two reasons First, be advanced for the restrictions. possibility there is an enhanced deception marketing profes- for confusion and products, professional sional services. Unlike standardized by complex services are their nature and diverse. See Virginia Pharmacy Virginia Board v. Citizens Consumer (1976). Council, Inc., 425 n. 25 748, 773, U. S. Faced with complexity, layperson may knowledge this often lack the experience gauge quality sample signing the before up larger purchase. significantly, Second, for a and more attorney’s personal obtaining interest business soliciting color the advice offered a client. As a result, potential employ attorney may customer’s decision to complete based on advice that is neither nor disinterested. particular attorney These risks are of concern when an potential personal offers unsolicited advice to a client in a accompanying encounter. In that context, advice attorney’s pitch merely apt for business is not to be com- plex attorney’s personal and colored interest. The public setting advice is also offered view, outside of and in a prospective judgment may which client’s be more eas- ily overpowered. intimidated or See Ohralik Ohio State Assn., Bar U. S. For these reasons, most expressly lawyers accepting employment States bar from resulting person from in unsolicited advice.2 Some States, like the American Bar Association its Model Rules of Pro- prohibition employment Conduct, fessional extend the re- 2See, 2-104(A); g., 2-104(A); e. Alaska DR DR 2-104(A); Ariz. Ark. DR 104(A); 2-104(A); DR DR 2-104(A); Colo. Conn. Del. DR D. C. DR 2 — 2-104CA); 2-104(A); 2-104(A); 2-104(A); DR Ind. DR Ga. Kan. DR Mo. DR 2-104(A); 2-104(A); 2-104(A); 2-104(A); Mont. DR Nev. DR N. M. DR 2-104(A); 2-104(A); 2-104(A); N. C. DR N. D. DR Okla. DR Tenn. DR 104(A); 2-104(A); 2-104(A); 2-104(A); Utah DR Wash. DR W. Va. DR 2 — 2-104(A). Wyo. DR
675 suiting telephone from unsolicited advice calls, letters, specificrecipient.3 communications directed to a Ohio and 14 go step They other States a further. do not limit their rules provide to certain methods communication, but instead exceptions, “lawyer given with that, limited who has unso- legal layman licited advice to a that he should obtain counsel legal accept employment or take resulting action shall not from that advice.”4 posed opin-
The issue
and decided in
III
Part
of the Court’s
applied
punish
ion is whether such a rule can be
the use of
legal
printed
soliciting
advice
advertisement
business.
majority’s
attorney may
conclusionis a narrow one: “An
disciplined
soliciting legal
through printed
not be
business
advertising containing
nondeceptive
truthful and
. . . advice
regarding
legal rights
potential
Ante,
clients.”
at 647.
speech analysis
The Court relies on its commercial
in Central
Corp.
Hudson Gas Electric
&
v. Public Service Comm’n of
(1980),
York,
New
Given these
the Court
Ohio’sban on legal
advice contained Zauderer’s Daikon Shield advertise-
3See ABA Model Rule of
(1983);
Professional Conduct 7.3
Haw. DR
2-103,
2-103(A) (in
2-104;
3.9(F);
DR
Me. Rule
Minn.
person
DR
and tele
phonic
2-104(A).
solicitation);
2-103,
S. D. DR
DR
2-104;
See
Ky.
2-104(A);
2-104(A);
Idaho DR
DR
Md. DR
Mich. DR
2-104(A);
2-104(A);
2-104(A);
Miss. DR
DR 2-104(A);
Neb. DR
N. J.
2-104(A);
N. Y. DR
2-104(A);
2-104(A);
Ohio DR
DR
Ore.
Pa. DR
2-104(A);
2-104(A);
R. I.
2-104(A);
DR
2-104(A);
Tex. DR
Vt. DR
Wis.
2-104(A).
DR
against
ment: “do not assume it is too late to take
action
App.
Surveying
the . . . manufacturer.”
15.
law,
Ohio
majority
completely
concludes that this advice “seems
un-
objectionable,” ante, at 640. Since the statement
is not
*42
misleading, the Court turns to the asserted state
interests
restricting
wanting.
per-
it, and finds them all
The Court
overreaching
ceives much less risk of
or undue influence here
simply
than in Ohralik
because the solicitation does not occur
person.
discouraging lawyers
The State’s interest in
from
stirring up litigation
denigrated
because lawsuits are not
properly
and
evil,
States cannot
interfere with access to our
system justice. Finally,
of
the Court finds that there exist
prevent attorneys
using
less restrictive means to
from
mis-
leading legal
just
advice to attract clients:
as the Federal
identify
Trade Commission has been able to
unfair or de-
ceptive practices
marketing
eggs,
in the
of mouthwash and
App.
FTC,
Warner-Lambert
v.Co.
183 U. S.
D. C.
(1977),
Egg
F. 2d 749
National Comrn’n on
Nutrition v.
(CA7 1977),
FTC,
identify
In view, state of advice qualitatively regulation advertisements is different from concerning goods claims commercial and merchandise, and greater majority’s analysis is entitled deference than the permit. prior would its decisions, Court was better perceive importance regulation able to both the of state professional profes- conduct, and the distinction between products. sional services and standardized consumer See, g., Virginia e. Bar, State 421 U. S. 773, Goldfarb (1975). understandably require The States more of attor- neys engaged Lawyers pro- than of others in commerce. are greater obligations. fessionals, and as such have As “[f]rom Justice profession Frankfurter once observed, charged responsibilities [constitutional] with there must be qualities truth-speaking, high exacted . . . of a sense of granite honor, of discretion.” Schware v. Board Bar Examiners New Mexico, 353 U. S. legal profession past distinguished has in the been and well by imposes served a code of ethics which certain standards beyond prevailing marketplace duty those in the place professional responsibility pecuniary gain. above professional- While some assert that we have left the era of practice ism the of law, see Florida Bar v. Schreiber, 420 (Fla. 1982) (opinion J.), So. 2d 599 of Ehrlich, substantial many provisions state interests underlie of the state justify stringent codes of ethics, more standards than apply public large. to the speech
The Court’s repeatedly commercial decisions have acknowledged professional that the differences between serv- products may justify ices and other advertised distinctive *43 regulation. Virginia Pharmacy state See Board, 425 U. S., (opinion at n. 25; id., at 773-775 of Burger, C. J.); 773, Bates v. State Bar Arizona, 433 U. S. 350, 383-384 (1977); supra, In re R. significantly, J.,M. at n. 15. Most in strong Ohralik, the Court found that the state in interest maintaining among profes- standards members of licensed preventing overreaching, sions in and fraud, or undue influ- by attorneys justified prophylactic barring ence a rule in person Although solicitation. 436 U. at 460-462. S., the antisolicitation preclude in rule Ohralik in would some circumstances attorney honestly fairly informing po- from a legal rights, tential client of his or her the Court nevertheless deferred to the State’s determination that risks of undue overreaching justified influence or a blanket ban. also See Rogers, Friedman (upholding U. S. Texas (1979) prohibition any practice op- on use of trade in name the tometry deceptive misleading due to risk of or use of trade names). At a minimum, these cases demonstrate that States encompass are entitled under some circumstances to truthful, nondeceptive speech type advertising within a ban of a that threatens substantial state interests. reasonably my the determine that a State could view, legal “as bait with which to obtain
use
unsolicited
advice
client]
agreement
represent [a
Ohralik,
fee,”
poses
state
a sufficient threat to substantial
S.,
U.
justify
prohibition.
rec-
a blanket
As
Court
interests to
pre-
significant
ognized
interest in
Ohralik,
the State has a
attorneys
using
professional expertise
venting
from
their
judgment
laypeople
overpower
who have
the will and
printed
sought
it is true that a
their advice. While
overreaching
presents
than
a lesser risk of
advertisement
step
only
personal
is
one
removed
the former
encounter,
legal
employed
within an
from the latter. When
advice
layperson may
well conclude there is no
advertisement,
validity
consulting
judge
applicability
short of
means to
its
particu-
lawyer
placed
This is
the
larly
who
the advertisement.
appellant’s
adver-
where,
true
as
Daikon Shield
legal
phrased in
A
advice is
uncertain terms.
tisement,
potential
probably
read the advertisement would
client who
legal
“it
late to take
be unable to determine whether
is too
directly
against the . . . manufacturer” without
con-
action
sulting
appellant.
consultation,
And at the time of that
overreaching
influence, fraud,
the same risks of undue
present.
are
that were noted Ohralik
requiring
also has a substantial interest
State
judg
lawyers consistently
independent professional
exercise
exigencies
ment on behalf of their clients. Given
marketplace,
permitting
a rule
the use of
advice
ad
encourage lawyers
present
that advice
vertisements will
*44
likely
bring potential
into the office,
most
to
clients
rather
potential
it
in the interest of
than that advice which is most
example,
In a recent
York,
clients to hear.
case New
attorney
letters to victims of a
an
wrote unsolicited
massive
advising
professional opinion,
that,
disaster
them
his
liability
potential
clear. Matter
defendants is
Von
Wiegen,
App.
Y.
627,
147, modified,
Div. 2d
474 N.
S. 2d
(1984),
pending,
Y. 2d