Chapter II. The Constitutional Dimensions of Lawyer Advertising
A. The Constitutional Standard Governing the Communications of Legal Services
The Commission has been advised by those appearing before it, regardless of their points of view, that the organized bar can do no greater disservice to itself, its members or the public than to promote or encourage unconstitutional regulations governing lawyer advertising and other aspects of the communications of legal services.
The organized bar has promulgated many regulatory provisions governing the communication of legal services over the past 25 years that subsequently have been found to be unconstitutional. This has required frequent revisions of model rules and limited guidance to the states. For example, Model Rule 7.2 paragraph (d) governing lawyer advertising was adopted in August 1983, and amended in February 1989 and again in February 1990; Model Rule 7.3 regulating solicitation was created in February 1983 following Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978) and In re R.M.J., 455 U.S. 191 (1982) and amended in February 1989 following Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988); Model Rule 7.4 addressing specialization was amended in February 1989 and again in August 1992 after Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990).
The U.S. Supreme Court has now provided a litany of cases with standards far clearer than they were at the time of the Bates v. State Bar of Arizona, 433 U.S. 350 (1977), decision nearly 20 years ago. The Commission believes it is essential that policy-makers at all levels have a clear understanding of the constitutional dimensions pertaining to the communications of legal services and that they craft policies in conformity with the limitations defined by the Court. Failure to do so will continue to forestall successful remedies and meaningful solutions. Constitutionally-suspect regulations will, no doubt, continue to be litigated, at substantial expense to the states and bars during a time when financial resources are limited.
Litigation challenging rules or legislation on various aspects of lawyer advertising currently is pending as a result of regulations stemming from four states. The Florida Bar's rule requiring a 30-day waiting period for direct mail communications sent to prospective personal injury plaintiffs, has been challenged in McHenry v. The Florida Bar. i The U.S. Supreme Court has granted certiorari in that case and will hear the appeal of the Florida Bar from the ruling of the Eleventh Circuit Court of Appeals. Jacobs v. The Florida Bar ii poses a second challenge to the Florida Rules. It questions the constitutionality of the rules' absolute prohibitions of all testimonials, dramatizations, and multiple voices in lawyer advertising.
The Supreme Court of Mississippi promulgated new Rules of Professional Conduct in 1994 which restrict broadcast advertising by lawyers. These rules are challenged in Schwartz v. Welch. iii
The New Mexico amended Rule of Professional Conduct 16-701(C)(4), prohibiting lawyers from sending written communications to prospective personal injury clients, is under challenge in Revo v. Disciplinary Board of the Supreme Court of New Mexico. iv In addition, the constitutionality of Rule 16-707(B), requiring lawyers to submit advertisements to a committee for review and approval, is being challenged in McDevitt v. Disciplinary Board of the Supreme Court of New Mexico, CIV 94-383-JB (1994).
The Texas barratry law, making it illegal for lawyers to solicit clients directly, was amended to restrict access to auto accident reports until after a 30-day waiting period. The amendment was promptly challenged, in Moore v. Morales, for restricting the businesses' First and Fourteenth Amendment rights. v
The constitutional permissibility of lawyer advertising began in 1976, when, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), the Supreme Court applied First Amendment protection to commercial free speech. The Court struck down a ban on price advertising of prescription drugs. In applying the First Amendment to the regulation of a commercial interest, the Court stated, "It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us." vi
The following year, in Bates v. State Bar of Arizona, vii the Court extended the First Amendment protection of truthful and non-deceptive commercial free speech to lawyers, holding that it was unconstitutional for states to prophylactically ban such communications. In its decision, the Court rebutted a six-point analysis presented by the state bar to justify limiting the rights of its lawyers. The Court then focused on the public's need for information, concluding that advertising was not inherently misleading and could play an important role in the determination of whether an individual had a need for legal services and, if so, the method of finding a lawyer to help meet that problem.
In Bates, the Court gave little regulatory direction. Rather it lifted the state-by-state ban on lawyer advertising and stated, "...we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly." viii
The Court noted that misleading advertising warranted restrictions that could be "limited supplementation, by way of warning or disclaimer or the like..." ix It indicated that advertising illegal transactions could be suppressed and other matters could be subject to reasonable restrictions on time, place and manner.
The Bates decision left the constitutionality of in-person solicitation unclear. Shortly after Bates, an ABA Journal-sponsored LawPoll reported more lawyers were inclined to solicit cases than were likely to advertise. The issue, however, was decided the next year by companion cases In re Primus, 436 U.S. 412 (1978) and Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). The Court held that in-person solicitation for pecuniary gain was subject to regulation as an important state interest and that the "potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured or distressed person." x This is the only circumstance addressed by the Court since the Bates decision where the state's interest has been found to justify a ban on truthful, non-deceptive information conveyed by a lawyer to a potential client.
In Central Hudson Gas & Electric Corp. v. Public Service Commission of NY, 447 U.S. 557 (1980), the Court set out the standards that have served to govern the constitutionality of commercial free speech and, therefore, lawyer advertising since 1980 (with one modification noted below). The Court stated:
"In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial free speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted government interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than necessary to serve that interest." xi
The last prong of this test was modified in Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989). The Court indicated that the "least restrictive means test" was itself too restrictive. One could almost always conceive of a measure that was less restrictive than the one under scrutiny. Therefore, the test has become one of a "reasonable fit."
Thus, if commercial speech is truthful and non-deceptive, but the state substantiates a significant state interest and crafts regulations that directly advance that interest, those regulations must be a reasonable fit that are "narrowly tailored to achieve the desired objective." xii
In 1985, the Court applied the tests of Central Hudson to lawyer advertising in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). The first issue presented in Zauderer was whether the state could prohibit solicitation of legal business through advertisements containing advice and information regarding specific legal problems. The second issue was whether the state could restrict the use of illustrations in lawyer advertising and the third issue was the validity of disclosure requirements relating to terms of contingency fees.
The Court concluded first that "An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of potential clients." xiii
The second issue is perhaps the most interesting as it applies to lawyer advertising issues which are still current. The state rule under scrutiny provided in part, "The information disclosed by the lawyer in such publication or broadcast shall ... be presented in a dignified manner without the use of drawings, illustrations, animations, portrayals, dramatizations, slogans, music, lyrics or the use of pictures, except for the use of pictures of the advertising lawyer or the use of a portrayal of the scales of justice." xiv
The lawyer had placed an ad with an illustration of a Dalkon Shield IUD. The Court replied to the prohibition by stating, "The use of the illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech: restrictions on the use of visual media of expression in advertising must survive scrutiny under the Central Hudson test." xv
The Court indicated that it was strongly disinclined to find that issues of dignity give rise to a substantial state interest. "...we are unsure that the State's desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights.. .[t]he mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity." xvi (emphasis added)
As to the third issue of Zauderer, the Court found that it was misleading to fail to inform potential contingency fee clients that they could be liable for the costs of their cases. The advertisement stated that "if there is no recovery, no legal fees are owed by our clients." The Court stated that laymen would not be aware of the distinctions between "fees" and "costs" and could easily conclude that there would be no financial obligation. The Court concluded that the "assumption that substantial numbers of potential clients would be so misled is hardly a speculative one...The State's position that it is deceptive to employ advertising that refers to contingent fee arrangements without mentioning the client's liability for costs is reasonable enough to support a requirement that information regarding the client's liability for costs be disclosed." xvii
Although misleading communications are not subject to First Amendment protection and would in theory be subject to a ban and although the Court found the communication on contingency fees to be misleading (by omission), it did not hold that a ban of the communication would be appropriate. Instead, the Court analyzed the advertising in terms of the test set out in Central Hudson and concluded that a disclosure requirement was the appropriate regulation.
At the same time the U.S. Supreme Court was hearing the Zauderer case, the Iowa Supreme Court upheld a reprimand of a lawyer whose television advertisements violated that state's restrictions. In Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. Humphrey, 355 N.W.2d 565 (1984) the rule at issue stated, "The same information, in words and numbers only, articulated by a single non-dramatic voice, not that of the lawyer, and with no other background sound, may be communicated on television. In the case of television, no visual display shall be allowed except that allowed in print as articulated by the announcer..." xviii
The case was appealed to the U.S. Supreme Court. That Court had decided the Zauderer case before ruling on the Humphrey case. The Court then vacated the Iowa Supreme Court's opinion upholding its regulations and remanded the case to the Iowa Supreme Court to reconsider in light of the Zauderer decision. The Iowa Supreme Court distinguished Zauderer because it involved print ads and not television commercials. xix Humphrey again appealed the decision of the Iowa Supreme Court to the U.S. Supreme Court, which then refused to grant certiorari citing the lack of a federal question. The Iowa rules have not been challenged since, and their constitutionality remains uncertain, and, to most constitutional scholars, seriously in doubt.
B. The Limits and Applications of Commercial Free Speech
Since the Bates decision, the U.S. Supreme Court has supported limits on the communications of legal services three times. First was the decision in Ohralik upholding the state's ban on in-person solicitation. Second was that portion of the Zauderer case that supported the state's right to require a disclosure informing consumers they may be responsible for costs in contingency fee cases where ads indicate there is no fee unless there is a recovery. The third action was the Court's refusal in 1985 to grant certiorari to the second appeal of the Humphrey case which challenged the Iowa rules pertaining to electronic advertising.
Since then, the U.S. Supreme Court has shown no reluctance to apply the commercial free speech doctrine to various aspects of lawyer advertising and marketing. In 1988, the Court upheld the right of a lawyer to send direct mail that was truthful and non-deceptive to those known to be in need of legal services, overturning regulations forbidding direct targeted mail. In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Court ruled on an ethical provision prohibiting the "mailing or delivery of written advertisements 'precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct from the general public.'" xx Speaking to the difference between the permissible general mail and the impermissible targeted mail, the Court stated that the First Amendment "does not permit a ban on certain speech merely because it is more efficient; the State may not constitutionally ban a particular letter on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable." xxi
The Court contrasted targeted mail to in-person solicitation. It indicated that face-to-face solicitation was "rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud." xxii It noted that the ban on in-person solicitation was justified additionally because of the inability to enforce the activity in a way less restrictive than a ban. The Court found the direct mail to have much less risk of overreaching or undue influence; more like print advertising where the potential client may disregard the information by merely averting his or her eyes. The Court found that targeted letters do not invade the person's privacy any more than general letters, and to the extent there is an invasion, it is the lawyer's discovery of the recipient's legal need, not the lawyer's confrontation of the recipient, by mail, with that discovery. xxiii
As to a ban on the activity, the Court again contrasted targeted mail with in-person solicitation, indicating that less restrictive measures such as filing requirements and disclaimers were available to control isolated abuses resulting from direct mail, and therefore a ban would be overly restrictive. xxiv
In 1990, the Court upheld the right of a lawyer to truthfully state he was certified as a civil trial specialist by the National Board of Trial Advocacy, even though the state did not recognize certification of specialties. The Court thus overturned regulations controlling representations of specialization. In Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990), the Court once again held that a ban was broader than reasonably necessary to prevent the perceived evil and was, therefore constitutionally invalid. xxv
In 1993, the Court upheld the right of certified public accountants to directly solicit business in person, overturning CPA regulations forbidding that type of solicitation. Edenfield v. Fane, _ U.S _, 113 S.Ct. 1792 (1993), illustrates the burden of the state in meeting the third prong of the commercial free speech test set out in Central Hudson -- whether the regulation directly advances the substantial state interest. The Court stated: "[t]his burden is not satisfied by mere speculation or conjecture; rather a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree." xxvi
This application of the Central Hudson test seems far more difficult for the state to meet than the same test as it was set out by the Court in 1985 in Zauderer, pertaining to the contingency fee disclosure requirement.
In 1994, the Court upheld the right of a lawyer, who was also a CPA and certified financial planner, to communicate those multiple credentials truthfully. In this, the most recent commercial free speech case, Ibanez v. Florida Department of Business and Professional Regulation, __ U.S.__, 114 S.Ct. 2084 (1994), Justice Ginsburg wrote the opinion which strongly defends the Central Hudson test. On the issue of establishing a governmental interest, the Court quotes from Zauderer and states: "The State's burden is not slight; the 'free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.'" xxvii The Court then quotes from the 1993 Edenfield decision on this issue: "'Mere speculation or conjecture' will not suffice; rather the State 'must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.'" xxviii The Court reiterates that a state's unsupported assertions are insufficient to justify prohibition of attorney advertising. The next commercial free speech case, Florida Bar v. McHenry, is now pending in the Supreme Court. xxix
C. The Prospect of Special Circumstances for Television Advertising
Some who provided information to the Commission expressed the opinion that television advertising of legal services presented special circumstances that would result in greater constitutional latitude in the regulation of that type of commercial speech. The opinion is predicated on six premises: 1) An assumption that television is uniquely persuasive; 2) The belief, measured by some research, that television advertising results in lowered public opinions of lawyers; 3) Dictum in the Bates decision stating that "the special problems of advertising on the electronic media will warrant special consideration;" 4) The U.S. Supreme Court's 1985 refusal to rule in the Humphrey case; 5) U.S. Supreme Court decisions that limit commercial free speech rights; and 6) The most recent U.S. Supreme Court justices will change the Court's commercial free speech direction, particularly as applied to lawyer advertising.
Although the Commission is concerned about the current state of some television lawyer advertising, it is skeptical the points made to justify additional regulations would be persuasive if those regulations otherwise failed the test set out in Central Hudson.
There is no question television is a powerful medium. In a decision upholding rules requiring television advertising for legal services to be predominantly informational, the Supreme Court of New Jersey stated, "As the record before us and the general literature abundantly prove, the emotional impact of television advertising, in its ability to persuade subliminally, through symbols, music, drama, authority figures -- the entire host of emotive non-rational techniques -- far exceeds that of the print media and radio." xxx
Nevertheless, television advertising is still within the control of the consumer. In this respect, the Supreme Court analysis set out in Shapero which distinguishes direct, targeted mail from in-person solicitation, seems applicable to television. The threat of overreaching inherent in face-to-face solicitation is not present when the consumer may avoid the message by merely averting his or her attention.
The second point about the public's attitude, that advertising has lowered the public's opinion of lawyers, is speculative, as discussed in Chapter VI. While there is research demonstrating that many do not approve of lawyer advertising generally, and disapproval increases as the nature and style of the advertising become more invasive, the extent and consequences of that disapproval have not been clearly ascertained. Regulations that limit communications also need to be balanced against the potential benefits of enhanced representation and better access to legal services, as discussed further in Chapter VI.
The suggestion in Bates that special problems of the electronic media warranted special consideration was one of a number of comments the Court made as it explored alternatives to the unconstitutionality of state-imposed prophylactic bans. The Court has encouraged the states to promulgate regulations to address specific and narrow problems. One example is the suggested use of disclaimers, but the Court has not indicated it would stray from the Central Hudson test in analyzing the constitutionality of those regulations. Nor has the Court demonstrated any retraction of the obligation it viewed for bars to assure that the communication of legal services "flows cleanly and freely."
The Court's refusal to hear the Humphrey case after the Iowa Supreme Court upheld its rules is one of the most curious aspects of the case law on commercial free speech. With no explanation, the Court indicated the case lacked a federal question. Nevertheless, the cases since 1985 give every indication that the Iowa rules, or any others that advance greater restrictions, would be subjected to the test set forth in Central Hudson if they were to be heard by the Supreme Court. The state would have to show, inter alia, that the rules were a "reasonable fit narrowly tailored" to achieve the desired objective. xxxi
While there have been recent cases that limit commercial free speech, the state interests advanced by the limitations on the advertising mainly have to do with curbing the various vices deemed harmful to the population as opposed to providing access to legal services. It is permissible, for example, to have regulation prohibiting television advertising of cigarettes and distilled spirits. More recently, the Court has approved restrictions that limit the broadcast of state lotteries into other states that oppose gambling. xxxii
Finally, since several members of the U.S. Supreme Court have changed since the most recent case directly on lawyer advertising, some suggest the current make-up of the Court is more inclined to uphold greater restrictions. The 1990 Peel case was extremely close, resulting in a plurality decision. However, more recent commercial free speech cases such as the 1993 case Edenfield v. Fane xxxiii and the 1994 case Ibanez v. Florida Department of Business and Professional Regulation, xxxiv strongly uphold commercial free speech rights and give no indication of a willingness of the Court to revise the standards now applicable to the issue.
Nevertheless, the Supreme Court has granted certiorari in McHenry v. Florida State Bar. Twenty state bar and eight local bar associations have joined to ask the Court to reconsider its decision in Bates. xxxv Consequently, the McHenry case could result in a modification of current constitutional standards. If any such standards are subsequently modified, in this case or any other in the future, the regulatory system should be reexamined as one with potential to provide better solutions to concerns with lawyer advertising.
Many of those who appeared before the Commission at the hearings, including constitutional scholars, expressed grave concerns about the adoption of regulations that go beyond the constitutionally accepted standard prohibiting "false and misleading" communications and impose restrictions on truthful and nondeceptive communications that are likely to be found unconstitutional. The Commission anticipates that this consideration will be of paramount concern to those who work to improve the profession's standing in the public.
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i. 21 F.3d 1038 (11th Cir. 1994), aff'g 808 F.Supp. 1543 (M.D. Fla. 1992), cert. granted, 115 S.Ct. 42 (1994).
ii. No. 91-40104WS (1993) on appeal No. 93-2933 (11th Cir.).
iii. No. 3:94CV569BN (1994).
iv. CIA 92-0764-SC (1992).
v. 843 F.Supp. 1124 (S.D.Tex. 1994), appeal docketed, No. H93-2170 (5th Cir. 10/19/94).
vi. 425 U.S. 748 at 770.
vii. 433 U.S. 350 (1977).
viii. Id. at 384.
ix. Id.
x. 436 U.S. 447 at 465.
xi. 447 U.S. 557 at 566.
xii. 492 U.S. 469 at 470.
xiii. 471 U.S. 626 at 647.
xiv. Id. at 633.
xv. Id. at 647.
xvi. Id. at 670.
xvii. Id. at 653.
xviii. 355 N.W.2d 565 at 569.
xix. Comm. on Professional Ethics and Conduct of the Iowa State Bar Ass'n v. Humphrey, 355 N.W.2d 565 (Iowa 1984), judgment vacated sub nom Humphrey and Haas v. Comm. on Professional Ethics and Conduct of the Iowa State Bar Ass'n 105 S.Ct. 2696 (1985), decision after remand, 377 N.W.2d 643 (Iowa 1985); cert. denied 106 S.Ct. 2293 (1986).
xx. 486 U.S. 466 at 467.
xxi. Id. at 471.
xxii. Id. at 472.
xxiii. Id. at 473.
xxiv. Id. at 474.
xxv. 496 U.S. 91 at 107.
xxvi. 113 S.Ct. 1792 at 1800.
xxvii. Ibanez, 114 S.Ct. 2084, 2088 quoting Zauderer, 471 U.S. 626, 646.
xxviii. Id. at 2088 quoting Edenfield, 113 S.Ct. at 1800.
xxix. 115 S.Ct. 42 (1994).
xxx. Petition of Felmeister & Issacs, 104 N.J. 515, at 539 (1986).
xxxi. Iowa rules are subject to constitutional challenge, as are the rules in all states. However, the nature of legal commerce in Iowa has failed to result in any such challenge since the 1985 Humphrey action. See supra note at 2.19.
xxxii. See Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986), upholding a ban on casino advertising to Puerto Rican residents while allowing continued solicitation of tourist business both inside and outside the commonwealth. See also United States v. Edge Broadcasting, __U.S.__, 113 S.Ct. 2696 (1993), where the Court held a federal statute banning state lottery advertising by broadcasters in states without lotteries "directly advanced" Congress's support of state-option choice under the third part of the Central Hudson test and that it provided a "reasonable fit" under the fourth part of the test. For a discussion of these issues in a broader context of commercial free speech, see DeVore, The Two Faces of Commercial Speech Under the First Amendment, 12 The Communications Lawyer 1, Spring, 1994.
xxxiii. Id. at note 2.26.
xxxiv. Id. at note 2.27.
xxxv. Supra note 2.1.