Lawyer Advertising
| Publication year | 2021 |
| Pages | 23 |
73 CBJ 23. Lawyer Advertising
Before 1977 lawyer advertising in the United States was generally forbidden. In Bates v. State Bar of Arizona, (fn1) the United States Supreme Court in a 54 decision extended First Amendment protections to lawyer advertising that was a "truthful advertisement concerning the availability and terms of routine legal services." (fn2) Since Bates the U.S. Supreme Court has writtten on lawyer advertising six times.
In 1978, the U.S. Supreme Court decided two solicitation cases, one in-person-for-profit in Ohralik v. Ohio State Bar Association, (fn3) the other a written communication on behalf of a non-profit organization in In re Pfimus. (fn4) Attorney Ohralik lost his appeal; Attorney Primus won his. (fn5) In 1982, the Court responded to jurisdictions that were revising their ethical rules to give Bates the narrowest possible scope. In re R.M.J. (fn6) declared unconstitutional various absolute restrictions in Ohio on the content of lawyer advertising even though the content was not misleading, such as listing areas of practice not set forth in the rules, listing courts where the lawyer was admitted to practice and sending office-opening announcements to people not listed in the rule.
In 1985, the Court held that Ohralik did not apply to newspaper advertising. Zauderer v. Office of Disciplinary Counsel (fn7) held that newspaper advertisments offering to refund the fee in drunken driving cases if the client was convicted, and showing a picture of a Dalkon Shield IUD and offering to represent women injured from using the device, were permitted by the first Amendment. The Ohio rules had barred use of illustrations and recommending employment of oneself.
The Ohio panel had also found the advertisements deceptive for failure to mention in the former advertisement that a fee would be charged if plea bargaining resulted in a plea to a lesser offense and in the latter advertisement the client's liability for costs.
In 1988, the Court went further and made it clear in Shapero v. Kentucky Bar Association, (fn8) that 0hralik was limited to inperson solicitation. Shapero concerned targeted direct-mail solicitation for bankruptcy representation sent to people who have had a foreclosure suit filed against them. The Court held that the difficulty of regulating in-person solicitations is much less of a problem than with targeted mail solicitations.
Since 1988, the Court has written on lawyer advertising exactly once. In Florida Bar v. Went For It, Inc., (fn9) the Court upheld Florida's 30-day ban on targeted direct-mail solicitations to accident victims.
That is it for words of wisdom from the U.S. Supreme Court. As we write in June 1998, we do not know authoritatively under the First Amendment whether, as Ralph Elliot opined in 1986, (fn10) Ohralik is limited to its tawdry facts or whether in-person solicitation can be generally banned; we do not know where telephone solicitations fit in; we do not know about targeted direct-mail solicitation except for the narrow issue decided in Florida Bar, and we do not know whether television advertising can be more strictly regulated than other forms of advertising.
On the subject of targeted direct-mail solicitation, the Fourth Circuit struck down a 1996 Maryland statute requiring lawyers to wait 30 days after a criminal or traffic charge before making such a solicitation. (fn11) The Court held that criminal and traffic cases are far different from civil accident cases because prodeedings can move so quickly in criminal cases. "While a criminal or traffic defendant may be shaken by his arrest, what he needs is representation, not time to grieve." (fn12) At about the same time, the Tenth Circuit struck down a New Mexico rule barring all target mail solicitation (except where there is a prior relationship) in accident cases. (fn13) The U.S. Supreme Court denied certiorafi. (fn14)
On the subject of television advertising, the Connecticut Superior Courtjudges in 1992 explicitly adopted the same advetising rules for television and radio as apply to the print media. (fn15) On the other hand, both Iowa and New Jersey have adopted stricter rules for television advertising than for other forms. Iowa's rule prohibits using a dramatic voice which is not that of the lawyer and it also prohibits most visual displays and background sound; New Jersey's rule prohibits the use of drawings, animations, dramatizations, music or lyrics. Such rules have been upheld by their state supreme courts. (fn16) In the Iowa case, the U.S. Supreme Court dismissed the appeal "for want of a substantial federal question." (fn17) Three justices, White, Blackmun and Stevens, would have noted probable jurisdiction and set the case for oral argument. (fn18) While dismissal for want of a substantial federal question is a ruling on the merits, (fn19) the precedential. value of the Iowa dismissal is doubfful because the two most liberal members of the court, justices Brennan and Marshall, voted to dismiss. One is left with the impression that they had some tactical reason for not wanting to hear the appeal. Their vote to dismiss does seem odd, because all five members of the aging majority in Bates remained on the court. Maybe they were worried about justice White.
What the U.S Supreme Court really thought about television advertising in 1986 or what it thinks today may be moot in Connecticut because of the Connecticut Constitution. In Grievance Committee v. Trantolo (Trantolo I), (fn20) one of the Connecticut Supreme Court's three forays into lawyer advertising (all involving the Trantolos), the Court held that a blanket restriction on television advertising was unconstitutional. While Trantolo I relied heavily on the reasoning of In re RM.J., it stated in a footnote that the free expression guarantees in Article First, Sections 4 & 5 of the Connecticut Constitution are at least as broad as those in the First Amendment and "provide an independent basis for our holding in this case." (fn21) The authors read this footnote to mean that, even if reliance on R.M.J. is later undermined, the result in Trantolo I would not change.
Trantolo I also stated that the Superior Court judges could continue to prohibit the dissemination of unlawful, false or misleading advertising and that they could also adopt rules to assure that "only useful, factual and relevent information is conveyed in advertisements for legal services." (fn22) The amusing (or tasteless, depending on one's perspective) television advertisements showed a couple in the process of a divorce deciding to split their property down the middle, whereupon the husband takes a chain saw to cut furniture down the middle while the family dog worriedly looks on; a lawyer and judge talking mumbo jumbo; an insurance adjuster trying to get an accident victim pinned under a car to sign a release with his teeth; and men repossessing a television set and then the bowl of popcorn held by the viewer. The Court concluded by ordering judgment directed for the Trantolos, which means that advertisements as a matter of law were not misleading or deceptive.
Unless the Connecticut Supreme Court's attitude has become more hostile to television advertising since 1984 (and there is no evidence that it has), it seems likely that regulations putting stricter. restrictions on television advertising than on the other media would not survive under the Connecticut Constitution. (fn23)
Most of the real problems with advertising, television or otherwise, have been dealt with under the false and misleading provision of Rule 7.1. For example, in Matter of Zang, (fn24) the Arizona Supreme Court upheld discipline against Attorney Zang, who had never tried a personal injury case but was apparently portrayed in a television ad arguing a case to the jury. Likewise, in Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, (fn25) the Commissioner of Consumer Protection claimed that the terms "clinic" and "law clinic" in the name of their law firm were unfair or deceptive. This is an allegation analogous to a violation under Rule 7.1.
On the other hand, in Capoccia v. Committee on Professional Ethics, (fn26) a federal judge held discipline improper for a television ad stating, "Andrew Capoccia understands, he's a smart, tough lawyer who's on your side." The...
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