Indiana Law Review


Evolving Concepts of Lawyer Advertising:

The Supreme Court's Latest Clarification

Douglas Whitman*
Clyde D. Stoltenberg**

I. Introduction

A commentator on lawyer advertising recently posed the question
whether the doctrine issued by the Supreme Court in Bates v. State Bar

of Arizona^ had produced progression or confusion.^ Bates held that a

total ban on lawyer advertising is unconstitutional and that the first amend-

ment protects truthful newspaper advertising of routine legal services and

their prices.' Characterizing the issue of attorney advertising as **an ob-

vious problem to members of the legal community,"* the commentator

noted that the Supreme Court has been "gradually filling in the interstices"

created by the Bates decision.' While the questions surrounding lawyer

advertising will probably **never be answered to everyone's total satisfac-

tion/** it has been suggested that the Supreme Court's recent decision

in Zauderer v. Office of DisciplinaryCounser ** should finally define the

boundaries within which a state may go in limiting lawyer advertisements'
discussions of specific legal problems.'"

In Zauderery the Court held that a state violates the first amendment

by prohibiting lawyer advertising that contains illustrations and advice

about specific legal problems.' The Court, however, simultaneously held

that failure to make full disclosure in the advertisement of all possible
costs of a lawsuit can result in disciplinary action.'** The Zauderer deci-

sion, though, comes as no surprise in view of the Supreme Court's opin-

ion in Virginia State Board of Pharmacy v. Virginia Citizens Consumer

Professor of Business Law, University of Kansas. B.A., Knox College, 1970; J.D.,
University of Missouri, 1973; M.B.A., University of Kansas, 1975; LL.M., University of
Missouri at Kansas City, 1982.

**Associate Professor of Business Law, University of Kansas. B.A., University of

Iowa, 1969; J.D., Harvard University, 1972; M.LA., Columbia University School of Inter-

national and Public Affairs, 1985.

'433 U.S. 350 (1977).

K^omment, Seven Years of the Bates Doctrine: Progression or Confusion?, 1 Am.
J. Trial Advocacy 611 (1984) [hereinafter cited as Comment, Seven Years].

H33 U.S. at 383.

^Comment, Seven Years, supra note 2, at 620.

'Id. (citing In re Felmeister, 95 N.J. 431, 437, 471 A.2d 775, 778 (1984)).

"•Id. at 621.

M05 S. Ct. 2265 (1985).

'Comment, Seven Years, supra note 2, at 621 n.85 (citing Nat'l L.J., Oct. 15, 1984,

at 5, col. 1).

"105 S. Ct. at 2280.

'"Id. at 2283 n.l5.

497



498 INDIANA LA W REVIEW [Vol. 19:497

Council, Inc.,^^ decided nearly a decade earlier. The Virginia Pharmacy

Board decision combined issues of commercial speech and regulation of
professionals. In its opinion, the Court noted that permissible restrictions

on commercial speech include regulation of the time, place, and manner

of advertising,'^ prohibitions on advertising which might in any way be
false or misleading, '^ and restrictions on advertisements promoting illegal

transactions.'* The Virginia Pharmacy Board decision also spawned a line

of cases dealing with lawyer advertising. In those cases decided by the

Supreme Court, lawyer advertising has consistently been allowed. '^ A sole

"425 U.S. 748 (1976). Virginia Pharmacy Board capped a line of cases beginning

with Valentine v. Christensen, 316 U.S. 52 (1942), in which the Supreme Court's position

had evolved from finding no constitutional restraints on the states' power to regulate

"purely commercial advertising" to requiring that first amendment interests be balanced

against the public interest served by the regulation in question. Id. at 54. See Bigelow v.

Virginia, 421 U.S. 809, 826 (1975) (state statute making the sale or circulation of any

publication which encourages or prompts the processing of an abortion a misdemeanor

violates first amendment freedom of speech rights of newspaper editor who published a
commercial advertisement announcing availability of placement services of organization in

another state where abortion was legal); Pittsburgh Press Co. v, Pittsburgh Comm'n on
Human Relations, 413 U.S. 376 (1973) (municipal ordinance prohibiting discrimination in
employment construed as forbidding newspapers to carry "help wanted" advertisements

in sex-designated categories does not infringe first amendment rights of advertisers); Breard

V. City of Alexandria, 341 U.S. 622 (1951) (municipal ordinance forbidding door-to-door

soliciting for sale of goods without prior consent of owners or occupants does not violate

freedom of speech and press); Martin v. City of Struthers, 319 U.S. 141 (1943) (municipal

ordinance forbidding door-to-door distribution of handbills or circulars advertising a

religious meeting invalid as abridging freedom of speech and religion). In another line of

cases, first amendment theory has been expanded to encompass protection of an individual's

right to know, in addition to his right of expression. See First Nat'l Bank v. Bellotti,

435 U.S. 765 (1978) (state statute prohibiting specified business corporations from making

contributions or expenditures to influence or affect the vote on any question submitted

to the voters violates the first amendment); Red Lion Broadcasting Co. v. FCC, 395 U.S.

367 (1969) (FCC's "fairness doctrine" requiring that public issues be presented to the

public by broadcasters and that both sides of issues be given fair coverage does not violate

first amendment rights of FCC licensees). See generally Baker, Commercial Speech: A
Problem in the Theory of Freedom, 62 Iowa L. Rev. 1 (1976); Cox, The Supreme Court,
1979 Term-Forward: Freedom of Expression in the Burger Court, 94 Harv. L. Rev. 1

(1980); Emerson, Legal Foundations of the Right to Know, 1976 Wash. U.L.Q. 1; Emerson,

Toward A General Theory of the First Amendment, 72 Yale L.J. 877 (1963); Meiklejohn,
The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245.

'^425 U.S. at 771. For a general discussion of content regulation allowable under

the first amendment, see Note, Content Regulation and the Dimensions of Free Expression,

96 Harv. L. Rev. 1854 (1983).
'H25 U.S. at 771.

'*Id.

''See, e.g., Zauderer v. Office of Disciplinary Counsel, 105 S. Ct. 2265 (1985); In

re R.M.J. , 455 U.S. 191 (1982); In re Primus, 436 U.S. 412 (1978); Bates v. State Bar

of Arizona, 433 U.S. 350 (1977). In spite of this line of cases upholding a lawyer's right

to advertise. Chief Justice Burger was quoted in a speech to an American Bar Association

commission on July 7, 1985, as stating that "some of the ads are 'sheer shysterism' and



1986] LAWYER ADVERTISING 499

exception occurred in Ohralik v. Ohio State Bar Association,^^ which in-
volved instances of blatant **in-person solicitation** rather than a general

public advertisement.'^

Lawyer advertising continues to be litigated with regularity, primarily

because of the manner in which the states have chosen to respond to the
Bates doctrine. Professional responsibility rules regulating advertising have

been revised by the states, but only grudgingly and often in the most
restrictive manner possible. An American Bar Foundation research attorney
pointed out in 1981 that "the very ad in Bates would not be permissible

in 27 states or under the ABA Model Code.**" The American Bar Associa-
tion changed its Model Code of Professional Conduct in 1983 to allow
lawyers to include any information in their ads as long as it is not false,

fraudulent, or misleading." However, to date, few states have adopted

that, if he were a private lawyer again, he would *dig ditches' before resorting to

advertising." Kansas City Times, July 8, 1985, at B-8, col. 5. He also opined that "the
actions of 'a tiny handful of lawyers advertising in flagrant ways' are 'pulling down' the

image of the entire profession," and claimed **I will never — my advice to the public
is never, never, never, under any circumstances, engage the services of a lawyer who
advertises." Id.

"•436 U.S. 447 (1978).

''Id. at 448-52.

'"L. Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation 43

(1980).

'The American Bar Association has changed its Model Code governing attorney

advertising twice since 1977. The 1980 amendments permitted and regulated advertising

of legal services in the public media. Disciplinary Rule 2-101 expressly prohibited "false,

fraudulent, misleading, deceptive, self-laudatory, or unfair" advertising. Model Code of
Professional Responsibility DR 2-101 (1979). Then it went on to create a list of 25
categories of information lawyer ads would be permitted to contain. Generally, the per-

missible content categories involved personal information about the lawyer and facts relating

to the lawyer's qualifications, the areas of law in which the lawyer practiced or specialized,

and information concerning the lawyer's fees and arrangements for payment. Id.

Given the problems inherent in the application of DR 2-101, the ABA continued its
consideration of lawyer advertising issues. This resulted in the publication, in 1981, of a

new proposed Model Rule 7.1. Model Rule 7.1 rejected the "laundry list" approach of

DR 2-101 on the grounds that information the public might think relevant could not be
adequately identified in such a manner. Instead, Model Rule 7.1 took the approach of

simply forbidding a lawyer to "make any false or misleading communication about the
lawyer or the lawyer's services" and then described what made a statement "false or

misleading." Model Rules of Professional Conduct Rule 7.1 (1983). Specifically, the
rule provides that a communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary

to make the statement considered as a whole not materially misleading; (b) is

likely to create an unjustified expectation about results the lawyer can achieve,

or states or implies that the lawyer can achieve results by means that violate

the rules of professional conduct or other law; or

(c) compares the lawyer's services with other lawyers' services, unless the com-
parison can be factually substantiated.



500 INDIANA LA W REVIEW [Vol. 19:497

the ABA 1983 Model Rules.^"
It is apparent that the Bates doctrine has produced both progress and

confusion. Although Supreme Court decisions have steadily and gradually

been filling in the interstices created by Bates, many issues remain unresolv-
ed. The states are split on the legality of direct mail advertising. States

prohibiting such advertising perceive it as impermissible solicitation,^* while

states upholding attorney direct mailings view it as permissible advertis-

ing." Another unresolved issue is the relationship between advertising

Id. The Model Rules of Professional Conduct were adopted by the ABA in 1983 with
Rule 7.1 intact. It is this version that is now under consideration by a number of the
states.

^he states have, for the most part, used the ABA's proposals only as a reference
source for drafting their own response to Bates. See L. Andrews, Birth of a Salesman:

Lawyer Advertising and Solicitation 135-46 (1980); Braverman, ISBA and CBA Joint
Committee Reviews Illinois Code/ABA Model Rules, 73 III. B.J. 544 (1985); Brosnahan
& Andrews, Regulation of Lawyer Advertising: In the Public Interest, 46 Brooklyn L.
Rev. 423 (1980); % ABA Rules Drubbed at N Y. Bar Meeting, Nat'l L.J., Feb. 11, 1985, at
3, col. 3. As of the end of 1985, only eight states had adopted the ABA Model Rules.
See Fight Intensifies on Ethics Rules, Nat'l L.J., Dec. 9, 1985, at 3, 8; Model Rules Jolted,

ABA Journal, Jan. 1986, at 18.
''See, e.g., Eaton v. Supreme Court, 270 Ark. 573, 607 S.W.2d 55 (1980), cert.

denied, 450 U.S. 966 (1981) (advertisement mailed to addressees Hsting only initial con-

sultation fee and broad areas of law without information on charges for those services

not informative in nature but rather impermissible solicitation); Florida Bar v. Schreiber,

407 So. 2d 595 (Fla. 1981) (letter mailed by attorney recommending own employment
violates state interest in prohibiting direct mail solicitation motivated solely by personal

pecuniary gain); State v. Moses, 231 Kan. 243, 642 P.2d 1004 (1982) (letters mailed by

attorney to persons whose names were gathered from the Realtors Multiple Listing con-

stituted recommendation of own employment and was impermissible direct solicitation);
Allison V. Louisiana State Bar Ass'n, 362 So. 2d 489 (La. 1978) (letters mailed by attorneys

to certain employers which sought formation of contract for prepaid legal services were

impermissible direct solicitation); In re Green, 78 A.D.2d 131, 433 N.Y.S.2d 853 (1980),

affd, 54 N.Y.2d 118, 429 N.E.2d 390. 444 N.Y.S.2d 883 (1981) (direct mail advertising

by attorney to real estate brokers soliciting broker to refer clients to attorney was im-

permissible third-party mailing); Adler v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978)

(attorneys who phoned and mailed form letters to clients of law firm which formerly
employed them in efforts to procure business for own new law firm violated state disciplinary
rule against self-recommendation where non-lawyer had not sought advice regarding em-
ployment), cert, denied, 442 U.S. 907 (1979). See generally Thurman, Direct Mail: Ad-
vertising or Solicitation? A Distinction Without a Difference, 11 Stetson L. Rev. 403
(1982); Note, Attorney Direct Mailings as Impermissible Solicitation or Permissible Ad-
vertising, 9 J. OF THE Legal Prof. 211 (1984).

''See, e.g., Kentucky Bar Ass'n v. Stuart, 568 S.W.2d 933 (Ky. 1978) (letters mailed

to real estate agencies stating only price charged for routine legal services in real estate

transactions and no words of solicitation did not constitute prohibited in-person solicitation);

In re Appert, 315 N.W.2d 204 (Minn. 1981) (disciplinary rule prohibiting distribution of
brochure and mailing of informational circular which advertised attorneys' experience and

availability in products liability suits against intrauterine device manufacturer are uncon-

stitutional restrictions on first amendment right to free speech); Koffler v. Joint Bar Ass'n,

51 N.Y.2d 140, 412 N.E.2d 927, 432 N.Y.S.2d 872 (1980) (direct mailing of letter to

individual real property owners soliciting use of attorney's legal services for the sale of

real property was neither misleading nor promoting unlawful activity). See generally



1986] LAWYER ADVERTISING 501

Specific services and the state's power to regulate specialization within the

profession." Finally, the Court noted in Bates that "the special problems

of advertising on the electronic broadcast media will warrant special con-

Stoltenberg & Whitman, Direct Mail Advertising by Lawyers, 45 U. Prrr. L. Rev. 381
(1984); Note, Mail Advertising by Attorneys and the First Amendment, 46 Ala. L. Rev.
250 (1981); Comment, Attorney Direct Mail Communication: The Koffler Commercial
Speech Approach, 4 W. New Eng. L. Rev. 397 (1982).

In general, states take one of three approaches to direct mail. One approach is
patterned after Rule 7.3 of the American Bar Association's Model Rules of Pro-

fessional Conduct. It provides that a lawyer may distribute letters generally to
persons not known to need legal services of the kind provided by the lawyer but
who are so situated that they might find such services useful .... Another ap-
proach . . . permits mailings to people whom the lawyer has identified as needing
specific legal services in a particular manner. . . . The third, most liberal, ap-

proach would permit lawyers to send letters to any potential client.

The Barriers to Lawyer Advertising, Nat'l L.J., Dec. 16, 1985, at 14, col. 3-4.

"The issue of a state's power to regulate specialization was addressed in Zauderer,

where the Supreme Court discussed Ohio's prohibition of Zauderer's advertisement con-

taining advice about a specfic legal problem. The Court stated that the "advertisement

did not promise readers that lawsuits alleging injuries caused by [the defendant's product]

would be successful, nor did it suggest that appellant had any special expertise in handling

such lawsuits other than his employment in other such litigation." 105 S. Ct. at 2276.

Commenting more generally, the Court noted that
[a]lthough our decisions have left open the possibility that States may prevent
attorneys from making non-verifiable claims regarding the quality of their services,
they do not permit a State to prevent an attorney from making accurate statements

of fact regarding the nature of his practice merely because it is possible that

some readers will infer that he has some expertise in those areas.

Id. at 2276 n.9 (citing Bates v. State Bar of Arizona, 433 U.S. 350 (1977)); In re R.M.J.,

455 U.S. 191, 203-05 (1982)). The Supreme Court appeared to enhance the deference due

state specialization certification procedures when, in January, 1986, it dismissed a challenge

to a Texas bar rule that forbids lawyers from advertising for any specific type of case unless

they have been certified as specialists in that area. Advertising Challenge Is Dismissed, Nat'l

L.J., Jan. 27, 1986, at 11, col. 1-2. See also In re Mountain Bell Directory Advertising,

185 Mont. 68, 604 P.2d 760 (1979) (state supreme court would not approve telephone

company plans to permit lawyers to advertise under 33 different sub-headings of practice).

See also ABA Model Rule 7.4, which states:
A lawyer may communicate the fact that the lawyer does or does not practice
in particular fields of law. A lawyer shall not state or imply that the lawyer
is a specialist except as follows:

(a) a lawyer admitted to engage in patent practice before the United States

patent and trademark office may use the designation "patent attorney" or a
substantially similar designation;

(b) a lawyer engaged in admiralty practice may use the designation 'admiralty,'
'proctor in admiralty' or a substantially similar designation; and

(c) (provisions on designation of specialization of the particular state).

Model Rules of Professional Conduct Rule 7.4 (1983). See generally Dickason, Ad-
vertising, Yes! Specialization, When?, 72 III. B.J. 332 (1984); Note, Seven Years of the

Bates Doctrine: Progression or Confusion?, 7 Am. J. Trlal Advoc. 611, 614-15 (1984);
Three Challenge Texas Bar's Rule on Ads, Nat'l L.J., June 3, 1985, at 8, col. 3; Iowa

Justices Delay Decision on Specialization, Nat'l L.J., Apr. 8, 1985, at 9, col. 1, 38;

Tennessee Lawyers Sue to Overturn Required Ad Disclaimer, Nat'l L.J., Feb. 11, 1985,
at 6, col. 1.



502 INDIANA LAW REVIEW [Vol. 19:497

sideration.*'^* The state courts' subsequent decisions in broadcast media

cases, however, have not been uniform."

This Article analyzes the Supreme Court's opinions on lawyer adver-

tising through In re R.M.J.,^^ examines the trends that have been evolv-

ing in the states since In re R.M.J, y^^ and concludes with a discussion

and analysis of Zauderer. The authors' goal is to derive from the vast

and growing volume of cases spawned by Bates those basic principles which

serve as the foundation for the resolution of future cases in this area

of continuing ferment,

II. From Bates to R.M.J.

The Supreme Court has issued several decisions regarding lawyer adver-

tising between Bates v. State Bar of Arizona,^* where it invalidated a

blanket suppression of lawyer advertising as violative of the first amend-

ment, and In re R.M.J.,^^ where the Court considered the rules regarding

lawyer advertising Missouri adopted in the wake of Bates. In Bates, two
Arizona attorneys decided to advertise to attract the volume of business
necessary to sustain their ** legal clinic.'"** They placed an advertisement

in a Phoenix newspaper which stated that the clinic provided ** legal ser-

vices at very reasonable fees'"' and which identified exact prices for several

routine legal services." The advertisement also stated that information
regarding other types of cases would be furnished on request." Arizona's

Disciplinary Rule 2- 101(B), incorporated in Rule 29(a) of the Supreme

^'Bates, 433 U.S. at 384.

"In Committee on Professional Ethics and Conduct v. Humphrey, 355 N.W.2d 565

(Iowa 1984), vacated and remanded, 105 S. Ct. 2693 (1985), an Iowa court enjoined a

law firm from airing three television commercials which featured an actor or actress

discussing an injury caused by negligence. The court determined that the advertisements

violated various disciplinary rules because they were misleading. Id. at 570. The case was

remanded to the Supreme Court of Iowa for further consideration in light of Zauderer

V. Office of Disciplinary Counsel, 105 S. Ct. 2265 (1985). See infra notes 158-65 and

accompanying text for a discussion of the Humphrey case.

M55 U.S. 191 (1982).
^'Id.

^"433 U.S. 350 (1977).

^'455 U.S. 191 (1982).

M33 U.S. at 354.
^^Id. An illustration of the advertisement is shown at 433 U.S. at 385.
"The legal services and prices advertised were:

Divorce or legal separation — uncontested (both spouses sign papers): $175 plus
$20 court filing fee. Preparation of all court papers and instructions on how

to do your own simple uncontested divorce: $100. Adoption — uncontested
severance proceeding: $225 plus approximately $10 publication cost. Bankruptcy

—non-business, no contested proceedings — individual: $250 plus $55 court
filing fee; wife and husband: $300 plus $110 court filing fee. Change of Name
— $95 plus $20 court filing fee.

Id. at 385.

''Id.



1986] LAWYER ADVERTISING 503

Court of Arizona, prohibited any lawyer advertising.^'* The attorneys con-
ceded that the advertisement violated the disciplinary rule, but argued that

the rule violated their first amendnient rights.''

The Arizona Bar Association urged six separate grounds for sustain-

ing the regulation: (1) the adverse effect on professionalism, (2) the in-

herently misleading nature of attorney advertising, (3) the adverse effect

on the administration of justice, (4) the undesirable economic effects of

advertising, (5) the adverse effect of advertising on the quality of service,
and (6) the difficulties of enforcement.''^ The Supreme Court concluded

that the public's need for information about the availability and terms

of legal services outweighed all of these concerns." Indeed, the Court

felt that the advertising prohibition was inconsistent with some of the par-

ticular purposes advanced."

The Court, however, exercised great care to limit its holding to the

facts of the case. It stated that the constitutional issue was "only whether

the State may prevent the publication in a newspaper of appellants' truthful

advertisement concerning the availability and terms of routine legal ser-

''Disciplinary Rule 2-101(B) stated in part:

A lawyer shall not publicize himself, or his partner, or associate, or any other
lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine

advertisements, radio or television announcements, display advertisements in the

city or telephone directories or other means of commercial publicity, nor shall

he authorize or permit others to do so in his behalf.

433 U.S. at 355 (citing Arizona statute) (footnote omitted).

'H33 U.S. at 356. The attorneys also argued that the disciplinary rule violated sections

1 and 2 of the Sherman Act because it Umited competition. Id.

'"Id. at 368-79.

''Id. at 379.

'"In addressing the argument that lawyer advertising is inherently misleading in nature,

the Court stated that

it seems peculiar to deny the consumer, on the ground that the information

is incomplete, at least some of the relevant information needed to reach an in-
formed decision. The alternative — the prohibition of advertising — serves only
to restrict the information that flows to consumers. . . . Although, of course, the

bar retains the power to correct omissions that have the effect of presenting an

inaccurate picture, the preferred remedy is more disclosure, rather than less.
Id. at 374-75 (emphasis added). Regarding the adverse effect on the administration of justice,
the Court commented that **[a]lthough advertising might increase the use of the judicial
machinery, we cannot accept the notion that it is always better for a person to suffer a
wrong silently than to redress it by legal action." Id. at 376. The argument that lawyer
advertising produces undesirable economic effects was defeated by the Court's statement
that '*[t]he ban on advertising serves to increase the difficulty of discovering the lowest
cost seller of acceptable ability. As a result, to this extent attorneys are isolated from com-
petition, and the incentive to price competitively is reduced." Id. at 377. Briefly addressing
the adverse effect of lawyer advertising on the quality of legal services, the Court stated
that "[rjestraints on advertising ... are an ineffective way of deterring shoddy work."
Id. at 378. Finally, on the difficulties of enforcement, the Court noted with irony that
'*[i]t is at least somewhat incongruous for the opponents of advertising to extol the virtures
and altruism of the legal profession at one point, and, at another, to assert that its members
will seize the opportunity to mislead and distort." Id. at 379.



504 INDIANA LAW REVIEW [Vol. 19:497

vices.**" The Court expressly stated that it was not considering two issues:

the peculiar problems associated with advertising claims relating to the

quality of legal services and the problems associated with in-person solicita-

tion of clients/" Finally, the Court mentioned "some of the clearly per-
missible limitations on advertising not foreclosed by our holding."*' These

include reasonable time, place, and manner restrictions, suppression of

advertising concerning transactions that are themselves illegal, and restraints

on false, deceptive, or misleading advertising.*^ Some considerations for
applying the false, deceptive, or misleading standard to lawyers* advertis-

ing in particular were suggested,*' but they were so vague as almost to

insure that the Court would have to speak to the issues involved with

greater particularity in future cases.

After Bates, the Court did not take another case involving lawyer

advertising until it decided In re R,M,J/* In the interim, however, the
Court decided three cases which have since had a strong impact on the

issues involved in lawyer advertising: In re Primus/^ Ohralik v. Ohio State

Bar Association,^^ and Central Hudson Gas and Electric Corp, v. Public
Service Comm'n of New York/'' In the companion cases of Primus and
Ohralik, the Court dealt with commercial speech issues arising from in-

person solicitation by lawyers, a topic the Court had expressly avoided

in Bates. In Central Hudson, the Court formulated a four-pronged test
to be applied in all challenges to a state* s attempt to regulate commercial

speech.

In In re Primus, the Court held that where the American Civil Liber-

ties Union (**ACLU**) engages in litigation as a means for effective political

expression and association, the first amendment protects efforts in pur-

^^Id. at 384. The limited scope of the opinion may lend additional force to the
criticism that in its approach to the first amendment in recent years, the Court has "paid

little attention to building a systematic body of law, but [has] instead engaged in par-

ticularistic and pragmatic balancing." Cox, supra note 11, at 26.
'^433 U.S. at 366 (emphasis added). The Court did give some hint of its attitude

toward these issues, however: "[AJdvertising claims as to the quality of services ... are

not susceptible of measurement or verification; accordingly, such claims may be likely to
be misleading as to warrant restriction. Similar objections might justify restraints on in-

person solicitation." Id. at 383-84.

"'/e/. at 383. This statement implies the existence of other permissible limitations,

but no hint is given of what they might be.
''Id. at 383-84 (citing Virginia Pharmacy Board, 425 U.S. at 771).
"The Court stated that "because the public lacks sophistication concerning legal

services, misstatements that might be overlooked or deemed unimportant in other advertising

may be found quite inappropriate in legal advertising." Id. at 383. The Court noted that
whether an advertisement is misleading will require consideration of the legal sophistication

of its audience and that different degrees of regulation may thus be necessary in different
areas. Id. at 383 n.37.

""455 U.S. 191 (1982).

"'436 U.S. 412 (1978).
"*436 U.S. 447 (1978).

"^447 U.S. 557 (1980).



1986] LAWYER ADVERTISING 505

suit of such litigation/' Primus dealt with an attorney, Edna Smith Primus,

who was associated with the Carolina Community Law Firm and was an
officer and cooperating lawyer with a branch of the ACLU. Primus went
to a meeting attended by persons who had been sterilized as a condition
for continued receipt of medical assistance. In August of 1973, the ACLU
decided it would file suit on behalf of any persons sterilized pursuant

to this program. Primus, having been informed that Mary Williams was
willing to institute suit, wrote Williams on August 30, advising her of

the ACLU's offer of free legal representation. Williams subsequently met
with the doctor who performed the operation and at that time, having
shown the doctor and his attorney Primus* letter, called Primus and an-

nounced her intention not to sue. There was no further communication

between Williams and Primus.

A complaint was Hied against Primus with the Board of Commis-
sioners on Grievances and Discipline of the Supreme Court of South

Carolina (**Board'*). A panel appointed by the Board found the lawyer
guilty of soliciting a client on behalf of the ACLU.*' Subsequently, the

^"436 U.S. at 436-39.

""Specifically, Primus was found guilty of violating South Carolina's Disciplinary

Rules (DR) 2- 103(D)(5)(a) and (c) and 2-104(A)(5). South Carolina's Rule (DR) 2-103(D)

provided:

A lawyer shall not knowingly assist a person or organization that recommends,
furnishes, or pays for legal services to promote the use of his services or those

of his partners or associates. However, he may cooperate in a dignifled manner
with the legal service activities of any of the following, provided that his

independent professional judgment is exercised in behalf of his client without

interference or control by any organization or other person: (1) A legal aid
office or public defender office:

(1) A legal aid office or public defender office:
(a) Operated or sponsored by a duly accredited law school.

(b) Operated or sponsored by a bona fide non-profit community organization.

(c) Operated or sponsored by a governmental agency.

(d) Operated, sponsored, or approved by a bar association representative of the

general bar of the geographical area in which the association exists.

(2) A military legal assistance office.
(3) A lawyer referral service operated, sponsored, or approved by a bar association
representative of the general bar of the geographical area in which the association

exists.

(4) A bar association representative of the general bar of the geographical area
in which the association exists.

(5) Any other non-profit organization that recommends, furnishes, or pays for
legal services to its members or beneficiaries, but only in those instances and

to the extent that controlling constitutional interpretation at the time of the

rendition of the services requires the allowance of such legal service activities,

and only if the following conditions, unless prohibited by such interpretation,

are met:

(a) The primary purposes of such organization do not include the rendition of
legal services.

(b) The recommending, furnishing, or paying for legal services to its members



506 INDIANA LAW REVIEW [Vol. 19:497

Board approved this finding, and its findings were adopted verbatim by
the Supreme Court of South Carolina.'"

Primus argued, based on NAACP v. Button^^ and its progeny, that
her activities involved constitutionally protected expression and associa-
tion. In Button, the Court had stated that the NAACP's activities which
encourage litigation do not constitute solicitation the state can prohibit,
but instead are forms of political association and expression fully pro-
tected by the first and fourteenth amendments." Without referring to any
of its earlier commercial speech cases, the Court found that because the

is incidental and reasonably related to the primary purposes of such organi-

zation.

(c) Such organization does not derive a financial benefit from the rendition of

legal services by the lawyer.

(d) The member or beneficiary for whom the legal services are rendered, and
not such organization, is recognized as the client of the lawyer in that matter.

436 U.S. 418-19 n.lO (citing DR 2-103(D) incorporated into South Carolina Supreme Court
Rule 32 (1976)). South Carolina's DR 2-104(A) provided:

A lawyer who has given unsolicited advice to a layman that he should obtain
counsel or take legal action shall not accept employment resulting from that

advice, except that:

(1) A lawyer may accept employment by a close friend, relative, former client
(if the advice is germane to the former employment), or one whom the lawyer
reasonably believes to be a client.

(2) A lawyer may accept employment that results from his participation in
activities designed to educate laymen to recognize legal problems, to make
intelligent selection of counsel, or to utilize available legal services if such activities

are conducted or sponsored by any of the offices or organizations enumerated

in DR 2-103(D)(l) through (5), to the extent and under the conditions prescribed
therein.

(3) A lawyer who is furnished or paid by any of the offices or organizations
enumerated in DR 2-103(D)(l), (2), or (5) may represent a member or beneficiary
thereof to the extent and under the conditions prescribed therein.

(4) Without affecting his right to accept employment, a lawyer may speak publicly
or write for publication on legal topics so long as he does not emphasize his

own professional experience or reputation and does not undertake to give in-
dividual advice.

(5) If success in asserting rights or defenses of his client in litigation in the

nature of a class action is dependent upon the joinder of others, a lawyer may
accept, but shall not seek, employment from those contacted for the purpose

of obtaining their joinder.

Id. at 418-19 n.ll (citing DR 2- 104(A) incorporated into South Carolina Supreme Court
Rule 32 (1976)).

«>/</. at 418-21.

"371 U.S. 415 (1963). Subsequent decisions interpreting Button have established the

principle that "collective activity undertaken to obtain meaningful access to the courts is

a fundamental right within the protection of the First Amendment." United Transportation
Union v. State Bar of Michigan, 401 U.S. 576, 585 (1971). See also Bates v. State Bar

of Arizona, 433 U.S. 350, 376 n.32 (1977); United Mine Workers of America v. Illinois
State Bar Ass'n, 389 U.S. 217 (1967); Brotherhood of R.R. Trainmen v. Virginia State
Bar, 377 U.S. 1 (1964).

"371 U.S. at 428-30.

(



1986] LAWYER ADVERTISING 507

ACLU was similar in relevant respects to the NAACP," any statute pro-
hibiting activity hke the ACLU's had to withstand exacting scrutiny in
order to be found constitutional.'^ It concluded that Primus had not

engaged in in-person solicitation, and that because the case was on a par

with Button J her activity was protected by the first amendment." Her
"speech — as part of associational activity — was expression intended
to advance ^beliefs and ideas,* "" and, as such, was subject to the full
protection of the first amendment rather than the partial protection of

the commercial speech doctrine.

In the companion case of Ohralik v. Ohio State Bar Association, the

Court held that the state bar can constitutionally discipline an attorney

for soliciting individuals for pecuniary gain under circumstances likely to

pose dangers that the state has an interest in preventing." In Ohralik,

an experienced lawyer personally solicited the representation of two young

auto accident victims in a suit to recover insurance money and was found
guilty of in-person solicitation by the Ohio State Bar Association. The

Supreme Court first noted that Bates^* did not automatically control the

decision because the in-person solicitation involved in the Ohralik case

differed from the type of communication approved in Bates, and because
the state's countervailing interest in prohibition was much greater in
Ohralik than in Bates. Specifically, the Court reasoned:

In this respect, in-person solicitation serves much the same func-
tion as the advertisement at issue in Bates, But there are signifi-

cant differences as well. Unlike a public advertisement, which

simply provides information and leaves the recipient free to act

upon it or not, in-person solicitation may exert pressure and often
demands an immediate response, without providing an opportunity

"The Court noted that the ACLU engaged in litigation for the purpose of com-
municating useful information to the public and expressing their political beliefs. 436 U.S.

at 431. The Court rejected the argument that because the ACLU has a policy of requesting
an award of counsel fees that this case was outside the protection of the Button case.

Id. at 429.

'"The Court indicated that South Carolina must demonstrate some compelling reason

for its actions. Id. at 432 (citing Bates v. Little Rock, 361 U.S. 516, 524 (I960)). The

Court found that South Carolina's Disciplinary Rules were so broad as to prevent any

lawyer employed by or cooperating with the ACLU from giving unsolicited advice to any
lay person who later retained the organization. Id. at 433. The Court also noted that an
attorney could be punished under these solicitation rules without any proof of some evil

flowing from the attorney's actions. Id. at 433.
"In holding that Primus' letter was clearly protected by the first amendment, the

Court seemed to look favorably on such written communications because it stated, "[TJhe
fact that there was a written communication lessens substantially the difflculty of policing

solicitation practices that do offend valid rules of professional conduct. . . . The manner
of solicitation in this case certainly was no more likely to cause harmful consequences
than the activity considered in Button . . . ." Id. at 435-36.

'"Id. at 438, n.32 (citing NAACP v. Alabama, 357 U.S. 449, 460 (1958)).
"436 U.S. 447, 464-68 (1978).
'"433 U.S. 350 (1977).



508 INDIANA LAW REVIEW [Vol. 19:497

for comparison or reflection. The aim and effect of in-person

solicitation may be to provide a one-sided presentation and to
encourage speedy and perhaps uninformed decisionmaking; there

is no opportunity for intervention or counter-education by agencies

of the Bar, supervisory authorities, or persons close to the solicited

individual.''

The Court further argued that the state has the responsibility for main-

taining the professional standards of lawyers, particularly because lawyers

are essential to the administration of justice.^** The advertising in Bates
did not erode this important interest of the state, but the type of blatant

solicitation involved in Ohralik — a kind of ''ambulance chasing** — did
severely affect the state*s interest in preserving professionalism among
lawyers.*' Given the longstanding regulation by the bar of the professional

ethics of lawyers, and given the longstanding, judicially recognized ra-

tionales for that regulation, the case fits neatly into the Court*s belief

that conunercial speech does not deserve full first amendment protection.*^

Some regulation of commercial speech is constitutionally permissible, and
the Court in Ohralik found it easy to justify such regulation in light of

the state's important interests in protecting consumers and preventing

fraud, undue influence, and overreaching.

In a case of major significance to commercial advertising as well as

attorney advertising, the Court in Central Hudson Gas & Electric Corp.
V. Public Service Comm'n ofNew York^^ set forth a test for determining
when the state can regulate commercial speech. The New York Public
Service Commission had ordered all electric utilities in New York to stop
any advertising that promoted the use of electricity. However, the Com-
mission permitted ''informational*' advertising designed to encourage shifts

of consumption from real demand times to periods of low demand. The
regulation was first promulgated during an energy shortage, but the Com-
mission decided to make the regulation permanent in order to promote

'"Ohralik, 436 U.S. at 457 (footnote omitted).

«»/£/. at 460.

*'The Court summarized the case against the lawyer:

He approached two young accident victims at a time when they were especially
incapable of making informed judgments or of assessing and protecting their

own interests. He solicited Carol McClintock in a hospital room where she lay
in traction and sought out Wanda Lou Holbert on the day she came home
from the hospital, knowing from his prior inquiries that she had just been

released .... He employed a concealed tape recorder .... He emphasized that
his fee would come out of the recovery, thereby tempting the young women
with what sounded like a cost-free and therefore irresistible offer. He refused
to withdraw ....

Id. at 467.

"See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748 (1976), where the Court noted that permissible restrictions on commercial
speech include regulation of the time, place, and manner of advertising. Id. at 771.

"447 U.S. 557 (1980).



1986] LAWYER ADVERTISING 509

energy conservation. The New York Court of Appeals found the regula-
tion to be constitutional/* but the Supreme Court reversed in a com-
prehensive opinion concerning the doctrine of commercial speech. The

Court noted that the Commission's order restricted only commercial

speech, which was defined as "expression related solely to the economic

interests of the speaker and its audience.*'" The Court determined that

the regulation violated the first and fourteenth amendments because it

completely banned promotional advertising." Furthermore, commercial

speech, the majority argued, should be treated differently from other forms

of speech.'' The Court announced a test to be applied in commercial

speech cases:

'^Consolidated Edison Co. v. Public Serv., 47 N.Y.2d 94, 390 N.E.2d 749, 417

N.Y.S.2d 30 (1979), rev'd, 447 U.S. 557 (1980). The New York court thought that
promotional advertising would only exacerbate the energy crisis, and therefore the gov-

ernmental interest in prohibiting this speech outweighed the constitutional value of the

commercial speech. Id. at 110, 390 N.E.2d at 758, 417 N.Y.S.2d at 39.
"447 U.S. at 561. The Court summarized the commercial speech doctrine and the

important cases:

The First Amendment, as applied to the States through the Fourteenth Amend-
ment, protects commercial speech from unwarranted governmental regulation.

Commercial expression not only serves the economic interest of the speaker,

but also assists consumers and furthers the societal interest in the fullest possible

dissemination of information. In applying the First Amendment to this area,
we have rejected the "highly paternalistic" view that government has complete

power to suppress or regulate commercial speech. . . . Even when advertising
communicates only an incomplete version of the relevant facts, the First Amend-
ment presumes that some accurate information is better than no information at

all.

Id. at 561-62 (citing Bates v. State Bar of Arizona, 433 U.S. 350, 374 (1977); Virginia

State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,
761-62 (1976)).

"^Id. at 570.

''^Id. at 561-62. The Court noted that commercial speech receives less protection than

traditionally protected non-commercial speech. The Court then attempted to summarize

what regulation of commercial speech was permissible:

The First Amendment's concern for commercial speech is based on the

informational function of advertising. Consequently, there can be no constitu-

tional objection to the suppression of commercial messages that do not accurately

inform the public about lawful activity. The government may ban forms of
communication more likely to deceive the public than to inform it, or commercial

speech related to illegal activity ....
If the communication is neither misleading nor related to unlawful activity,

the government's power is more circumscribed. The State must assert a substantial

interest to be achieved by restrictions on commercial speech. Moreover, the

regulatory technique must be in proportion to that interest. The limitation on

expression must be designed carefully to achieve the State's goal. Compliance

with this requirement may be measured by two criteria. First, the restriction
must directly advance the state interest involved; the regulation may not be
sustained if it provides only ineffective or remote support for the government's

purpose. Second, if the governmental interest could be served as well by a more
limited restriction on commercial speech, the excessive restrictions cannot survive.



510 INDIANA LAW REVIEW [Vol. 19:497

In commercial speech cases, then, a four-part analysis has

developed. At the outset, we must determine whether the expres-
sion is protected by the First Amendment. For commercial speech

to come within that provision, it at least must concern lawful
activity and not be misleading. Next, we ask whether the asserted
governmental interest is substantial. If both inquiries yield positive

answers, we must determine whether the regulation directly ad-
vances the governmental interest asserted, and whether it is not

more extensive than is necessary to serve that interest.**

This four-part test has since served as the benchmark for determining when

the states can regulate commercial speech.*'

447 U.S. at 563-64 (cinting Friedman v. Rogers, 440 U.S. 1, 13 (1979); Ohraiik v. Ohio

State Bar Ass'n, 436 U.S. 447, 465-66 (1978); First Nat'l Bank of Boston v. Bellotti, 435

U.S. 765, 783 (1978); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376,
388 (1973)) (footnote omitted). See generally Jackson & Jefferies, Commercial Speech:
Economic Due Process and the First Amendment, 65 Va. L. Rev. 1, 38-39 (1979).

'^447 U.S. at 566. The Court's application of its newly articulated four-part test

may be summarized as follows. The Commission had not argued that the expression in
question was inaccurate or related to an unlawful activity. The New York Court of
Appeals, however, had suggested that in light of the noncompetitive market in the utility

field, the Commission's order did not restrict commercial speech of any worth. 47 N.Y.2d

at 110, 390 N.E.2d at 757, 417 N.Y.S.2d at 39. The Supreme Court rejected this argument.

It noted that utilities compete for energy with other users of energy. Furthermore, consumers

need to decide how much energy they need to use, and such a regulation decreased the
total amount of information available to the public.

The Court observed that "[e]ven in monopoly markets, the suppression of advertising

reduces the information available for consumer decisions and thereby defeats the purpose

of the First Amendment." 447 U.S. at 567. The Court conceded, however, that the

asserted interest of the state in encouraging energy conservation was substantial. Likewise,

it conceded that the state's interest in fair rates was also a substantial goal. The ban was

deemed to advance those interests. Id. at 568-69. The critical question, then, was whether

the Commission's order was no more extensive than necessary to advance the state's

asserted interests. The Commission completely suppressed speech ordinarily protected by

the first amendment. The Court stated that the energy conservation rationale could not
justify "suppressing information about electric devices or services that would cause no

net increase in total energy use." Id. at 570. To the extent the order suppressed speech
that in no way impaired the goal of energy conservation, the ban violated the first and

fourteenth amendments. Furthermore, the state failed to demonstrate that a more limited

restriction on the content of ads would not adequately serve the state's interests. Id.

'•'Some commentators, while agreeing with the result in Central Hudson, took issue

with the four-part test adopted in the case, preferring instead a rule fully protecting both

commercial and non-commercial speech:

The four-part analysis enunciated by the Court in Central Hudson and the
implicit holding that narrowly drawn content-based regulation of accurate com-

mercial speech would be constitutional are, however, inconsistent with the prin-

ciples underlying the first amendment. Because commercial expression furthers
the same values and interests that require protection of other forms of speech,

regulation based on the content of the former should receive full constitutional
protection.

The Supreme Court, 1979 Term, 94 Harv. L. Rev. 75, 164 (1980). The authors also
note, in light of the failure of the Court to define commercial speech, "[T]he application



1986] LAWYER ADVERTISING 511

The decision in Central Hudson set the stage for the next Supreme
Court decision dealing with attorney advertising. In In re R.M.J.,^^ the

Court addressed whether Missouri's rules regarding lawyer advertising

adopted in the wake of Bates^^ violated the first amendment commercial
speech doctrine set forth in Central Hudson. ^^ The court concluded that

truthful advertising related to lawful activities is protected by the first

amendment, but where the advertising is false, deceptive, or misleading,

the state can property regulate it.^' Even where the communication is not
misleading, the state retains some authority to regulate if it can assert
a substantial interest and that the interference with speech is in proportion

to the interest served."*

The Advisory Committee had charged a lawyer (R.M.J.) with four

violations of the revised Disciplinary Rule on publicity, DR 2-101.'' First,

of a lower level of protection to speech labeled 'commercial' threatens to dilute the

protection afforded social and political expression." Id. at 167.

Other writers observed that the Central Hudson formulation shifts a new burden to

the state when it wishes to regulate activity:

[It] shifts to the government the onerous burden of proving that a restriction

on truthful commercial advertising concerning lawful activity both directly ad-
vances a substantial interest and was selected only after a meticulous appraisal

of narrower alternatives.

Fein, Free Speech in Ads Wins Key Plug From Brethren, Nat'l L.J., Nov. 17, 1980, at
15, col. 1.

™455 U.S. 191 (1982).

"433 U.S. 350 (1977).

^^447 U.S. 557 (1980).

'Un re R.M.J., 455 U.S. 191, 203 (1982).

'*Id.

"The revised Missouri rule stated:

(A) A lawyer shall not, on behalf of himself, his partner, associate or any
other lawyer affiliated with him or his firm, use or participate in the use

of any form of public communication respecting the quality of legal services

or containing a false, fraudulent, misleading, deceptive, self-laudatory or

unfair statement or claim.

(B) In order to facilitate the process of informed selection of a lawyer by

potential consumers of legal services, a lawyer may publish, subject to
DR 2-103, the following information in newspapers, periodicals and the
yellow pages of telephone directories distributed in the geographic area or

areas in which the lawyer resides or maintains offices or in which a

substantial part of the lawyer's clientele resides, provided that the infor-

mation disclosed by the lawyer in such publication complies with DR 2-
101(A), and is presented in a dignified manner:

(1) Name, including name of law firm and names of professional as-

sociates; addresses and telephone numbers;

(2) One or more particular areas or fields of law in which the lawyer

or law firm practices if authorized by and using designations and

definitions authorized for that purpose by the Advisory Committee;

(3) Date and place of birth;

(4) Schools attended, with dates of graduation and degrees;

(5) Foreign language ability;

(6) Office hours;



512 INDIANA LAW REVIEW [Vol. 19:497

he had placed an advertisement in a neighborhood newspaper listing areas

(7) Fee for an initial 30-minute consultation;

(8) Availability upon request of a schedule of fees;

(9) Credit arrangements for payment of fees will be given consideration;

(10) The fixed fee to be charged for the following specific routine legal
services:

1. An uncontested dissolution of marriage;
2. An uncontested adoption;
3. An uncontested personal bankruptcy;
4. An uncomplicated change of name;
5. A simple warranty or quitclaim deed;
6. A simple deed of trust;
7. A simple promissory note;
8. An individual Missouri or federal income tax return;
9. A simple power of attorney;

10. A simple will;
1 1

.

Such other services as may be approved by The Advisory Com-
mittee, the description of which would not be misunderstood

or be deceptive, provided that the statement discloses that the

quoted fee will be available only to clients whose matters fall

into the services described and that the client is entitled without

obligation to a specific estimate of the fee likely to be charged

in print size at least equivalent to the largest print used in setting

forth the fee information.

(C) If a lawyer advertises a fee for a service, the lawyer must render that

service for no more than the fee advertised.

(D) Unless otherwise specified in the advertisement, if a lawyer publishes any

fee information authorized under DR 2- 101(B) in a publication that is
published more frequently than one time per month, the lawyer shall be

bound by any representation made therein for a period of not less than 30

days after such publication. If a lawyer publishes any fee information

authorized under DR 2- 101(B) in a publication that is published once a
month or less frequently, he shall be bound by any representation made

therein until the publication of the succeeding issue. If a lawyer publishes

any fee information authorized under DR 2- 101(B) in a publication which
has no fixed date for publication of a succeeding issue, the lawyer shall

be bound by any representation made therein for a reasonable period of

time after publication but in no event less than one year.

(E) This rule does not prohibit limited and dignified identification of a lawyer

as a lawyer as well as by name:

(1) In political advertisements when his professional status is germane to

the political campaign or to a political issue.

(2) In public notices when the name and profession of a lawyer are required

or authorized by law or are reasonably pertinent for a purpose other

than the attraction of potential clients.

(3) In routine reports and announcements of a bona fide business, civic

professional, or political organization in which he serves as a director

or officer.

(4) In and on legal documents prepared by him.

(5) In and on legal textbooks, treatises, and other legal publications, and

in dignified advertisements thereof.



19861 LAWYER ADVERTISING 513

of practice which had not been approved.'* Second, he had Usted courts

where he had been admitted to practice. Third, he had not included a

required disclaimer of certification to practice in the listed areas of law.

Finally, he had sent professional announcement cards announcing the open-

ing of his office to persons other than lawyers, clients, former clients,

personal friends, and relatives in violation of DR 2- 102(A)(2).
R.M.J, urged the Missouri Supreme Court to modify its standards

in accordance with the four-part test enunciated in Central Hudson. ^^ The

court declined to do so and privately reprimanded him, stating that it

** respectfully decline[d] to enter the thicket of attempting to anticipate

and to satisfy the subjective ad hoc judgments of a majority of the justices
of the United States Supreme Court.'*'*

The Supreme Court reversed and Justice Powell, speaking for a

unanimous Court, indicated the Court's intention to apply the Central

Hudson commercial speech doctrine to professional advertising cases. The
Court commented on the state of the commercial speech doctrine as applied

to professionals and advertising:

(F) A lawyer shall not compensate or give anything of value to representatives
of the press, radio, television, or other communication medium in antic-
ipation of or in return for professional publicity in a news item.

Mo. Ann. Stat. DR 2-101 (Vernon 1982), reprinted in In re R.M.J., 609 S.W.2d 411,
412-13 (Mo. 1980), rev'd, 455 U.S. 191 (1982).

^^In re R.M.J., 609 S.W.2d at 411. Strangely, the approved areas of law and

terminology did not appear in DR 2-101, but in an Advisory Committee's addendum to
DR 2-101(B)(2), pubHshed only in the January-February 1978 Journal of the Missouri
Bar, Id. at 415 (Seller, J., dissenting).

The addendum listed twenty-three areas of law which could be used in advertising.

It permitted no deviation from these phrases. It also required the following disclaimer:

"Listing of the above areas of practice does not indicate any certification of expertise

therein." Id.

"447 U.S. 557 (1980).

^"609 S.W.2d at 412 (emphasis in original). Justices Bardgett and Seller dissented.

Justice Bardgett disagreed first with the requirement in the addendum that only certain

boilerplate language describing a field of practice be permitted in an advertisement. The

charge had been made that R.M.J, had used phrases contrary to those specified in the
addendum such as "contracts," and "personal injury" rather than "tort law" and "Work-

man's Compensation" rather than "Worker's Compensation Law." Responding to these

charges, Justice Bardgett urged that the addendum should "be considered as a guide and
that no unethical conduct is committed if the terminology used to describe a field of

practice is reasonable and fairly describes to a nonlawyer the field of law spoken of in
the advertisement." Id. at 414 (Bardgett, J., dissenting). He also found that R.M.J.'s
statement that he had been admitted to practice in Missouri, Illinois, and before the

United States Supreme Court was not unethical. Id. He also rejected the contention that
mailing such material constituted unethical behavior. Id. Justice Bardgett, however, would

not have applied Central Hudson in its entirety to lawyer advertising because he believed
the court "should continue to exercise responsibility to the public in regulating the practice

of law and this includes advertising." Id.



514 INDIANA LAW REVIEW [Vol. 19:497

Commercial speech doctrine, in the context of advertising for

professional services, may be summarized generally as follows:
Truthful advertising related to lawful activities is entitled to the

protections of the First Amendment. But when the particular con-

tent or method of the advertising suggests that it is inherently

misleading or when experience has proven that in fact such adver-

tising is subject to abuse, the States may impose appropriate
restrictions. Misleading advertising may be prohibited entirely. But
the States may not place an absolute prohibition on certain types
of potentially misleading information, e.g.y a listing of areas of

practice, if the information also may be presented in a way that
is not deceptive. . . . Although the potential for deception and

confusion is particularly strong in the context of advertising pro-

fessional services, restrictions upon such advertising may be no
broader than reasonably necessary to prevent the deception.

Even when a communication is not misleading, the State re-

tains some authority to regulate. But the State must assert a

substantial interest and the interference with speech must be in

proportion to the interest served. . . . Restrictions must be

narrowly drawn, and the State lawfully may regulate only to the
extent regulation furthers the State's substantial interest.^'

Justice Seller also would have dismissed the charges against R.M.J. As to the

disclaimer, Justice Seller would have dismissed the charge because R.M.J, immediately

attempted to change his advertisements upon being notified of the rule. Id. at 415-16

(Seller, J., dissenting). Justice Seller did not believe listing courts where admitted to practice

should be permitted in an advertisement, but he did not feel in this case that the listing

warranted discipline. Id. at 416. "I doubt that informational value gained by the consumer

by advertising the isolated fact of admission to the United States Supreme Court justifies

the risk of the false impression that such advertising may convey." Id. Justice Bardgett,
as noted earlier, would have permitted such a listing. Id. at 414 (Bardgett, J., dissenting).

Justice Seller also rejected the requirement of using only the phrases in the addendum to
describe the areas of practice. In fact, Justice Seller acknowledged that some of the phrases

used by R.M.J, actually might be more helpful to consumers. Id. at 416 (Seller, J.,

dissenting). Finally, he regarded the mailing of this information as constitutionally per-

missible in light of Central Hudson. Furthermore, Justice Seller argued that the disciplinary
rules in question violated the free speech clause of the Missouri Constitution. Id.

^M55 U.S. at 203. The Court recognized, however, that the Central Hudson test
must be applied to professional services advertising in light of the special characteristics

that advertising has to "mislead and confuse that are not present when standardized

products or services are offered to the public." Id. at 204 n.l5.

The Court recognized that these general principles do not provide "precise guidance,"
but as they are applied on a case-by-case basis, more guidance will be available. Id. at
204 n.l6. The language quoted in the text, therefore, should assuage the fears of com-

mentators that the Court's decision in Friedman v. Rogers, 440 U.S. 1 (1979), where it

declined to apply a least restrictive means analysis to the state's prohibition of the use
of a trade name in connection with an optometric practice, presaged a movement away
from this form of analysis. See generally Note, Reuniting Commercial Speech and Due



1986] LAWYER ADVERTISING 515

However, when the Court finally got to the facts of the case, it found
itself unable to apply the principles which allow the state to regulate in

the commercial speech area. As to the reprimand for deviating from the
precise areas of practice, the State of Missouri was unable to show that

any of the advertising forms used by the appellant were misleading or

that any substantial state interest was promoted by the regulations:

Because the listing [of areas of practice] published by the appellant

has not been shown to be misleading, and because the Advisory
Committee suggests no substantial interest promoted by the restric-

tion, we conclude that this portion of Rule 4 is an invalid restric-
tion upon speech as applied to appellant's advertisement.***

The Court also saw no justification for a rule prohibiting the listing

of jurisdictions in which a lawyer is licensed to practice," although it

was somewhat troubled by the potentially misleading statement that he

was a member of the bar of the Supreme Court of the United States.
Even so, it decided to permit such information in light of the absence

of information in the record that the material was misleading.*^ The third

violation was not addressed because the appellant did not raise it. The

Court also rejected the mailing of professional announcement cards as

a basis for disciplinary action:

Finally, appellant was charged with mailing cards announc-

ing the opening of his office to persons other than **lawyers,

clients, former clients, personal friends and relatives." Mailing

and handbills may be more difficult to supervise than newspapers.
But again we deal with a silent record. There is no indication
that an inability to supervise is the reason the State restricts the

potential audience of announcement cards. Nor is it clear that
an absolute prohibition is the only solution. For example, by re-

quiring a filing with the Advisory Committee of a copy of all

general mailings, the State may be able to exercise reasonable
supervision over such mailings. There is no indication in the record

of a failed effort to proceed along such a less restrictive path."

Thus, the Court found no evidence that any of R.M.J. 's material

Process Analysis: The Standard for Deceptiveness in Friedman v. Rogers, 57 Tex. L.

Rev. 1456, 1473 (1979).
'"'455 U.S. at 205.

''Id.

'•Id.

'^Id. (footnotes omitted). To alleviate any fears associated with receiving letters from
attorneys, the Court suggested that any envelope received from an attorney containing an

advertisement must include the statement "This is an Advertisement." 455 U.S. at 206

n.20.



516 INDIANA LAW REVIEW [Vol. 19:497

was misleading. "'• In short, In re R.M.J, was an easy case. According

to the Court, the State of Missouri had not even tried to justify its regula-

tions. Therefore, the Court could not invoke the state's right to regulate

as it apparently wanted to do.

III. Trends in State Court Decisions Since In re R.M.J.

A. Misleading Advertising in the Wake of R.M.J.

The Supreme Court in R.M.J, allowed for the total prohibition of

"misleading advertising.'**' At the same time, however, the Court barred

states from imposing an ** absolute prohibition on certain types oi poten-

tially misleading information ... if the information also may be presented
in a way that is not deceptive.'*" The Court put some flesh on the bones
of this distinction. First, it noted **listing of areas of practice" as an

example of the "potentially misleading information.'"^ Second, the Court

echoed the prong of the fourth Central Hudson test by stating that
allowable restrictions could be "no broader than reasonably necessary to
prevent the deception.""

Given the lack of detail in such a standard, it is not surprising that

the cases decided by state supreme courts after R.M.J, raised the issue
whether the ads in question were misleading, either actually or potentially.

Thus, in State ex rel. Oklahoma Bar Association v. Schaffer,*^ the
Oklahoma Supreme Court divided lawyer advertising into three categories:

(1) inherently misleading or proven to be misleading in practice, (2) poten-

tially misleading, or (3) not misleading.'** The court analyzed allowable

restrictions in each category as follows:

'^The Court stated:

There is no finding that appellant's speech was misleading. Nor can we say that

it was inherently misleading, or that restrictions short of an absolute prohibition

would not have sufficed to cure any possible deception. We emphasize, as we
have throughout the opinion, that the States retain the authority to regulate

advertising that is inherently misleading or that has proven to be misleading in

practice. There may be other substantial state interests as well that will support
carefully drawn restrictions. But although the States may regulate commercial
speech, the First and Fourteenth Amendments require that they do so with care
and in a manner no more extensive than reasonably necessary to further sub-

stantial interests. The absolute prohibition on appellant's speech, in the absence

of a finding that his speech was misleading, does not meet these requirements.

Id. at 206-07.

"'See supra text accompanying note 79. It is important to note that the scope of

the prohibition relates to both the "content" and "method" of advertising employed. Id.
•"•455 U.S at 203 (emphasis added).

*'Id.

**Id.

-"648 P.2d 355 (Okla. 1982).

nc^. at 358.



1986] LAWYER ADVERTISING 517

The first category may warrant absolute state prohibition. As to
the second, the regulatory device, as suggested in Bates, is not

necessarily a total ban but rather a required disclaimer or explana-

tion. The restriction on potentially misleading advertising may be
no broader than reasonably necessary to prevent specific decep-

tion. Regulation of the third category must be justified by a show-

ing of substantial state interest. . . . Unless it is shown that the

objectionable ads are either misleading or their restriction fur-

thers some substantial state interest, respondent's exercise of com-

mercial speech cannot be subjected to regulation."

Schaffer concerned a disciplinary proceeding for a lawyer's use of

two newspaper advertisements. One offered legal services for adopting
a step-child and the other promised free legal services if they were not

performed within a certain period of time.'^

Reviewing the prior proceedings on the ads in question, the court

found no contention by the Bar or finding by the trial authority that

the ads were misleading. The court noted that the "record fail[ed] to reflect

that in practice ads of the type here under consideration may be misleading
or that somebody has in fact been harmed by them."" The court then

looked to see if the state's restriction furthered some substantial state in-

terest. Concluding that the **substantial interest interposed by the state

in justification of its restrictive policy — as applied to these ads — rests
on the need for protecting an unsophisticated lay public from potential

harm from lawyer advertising,'* the court rejected the claim as **unfound-

ed.'"' Specifically, as to the second ad promising free legal services if

not performed within five days, the court concluded that the state surely

has no interest in suppressing free legal services or in discouraging ex-

peditious performance by a lawyer.'*

"'Id.

"^Id. at 356. The first advertisement stated: "adopt: to love and cherish as your

own. Perhaps you already love and cherish your step-child .... Even so, he may be

certain benefits. A legal adoption may give your step-child many of these benefits while
telling your step-child you want him as your very own."

The second advertisement stated: "Need a lawyer? 5 days — or free. Within 5
working days after you provide us with the information we need, we will file the necessary

court documents, or if filing is not appropriate, begin providing legal services — or our
services are free. Good for 30 days. DIVORCE NAME CHANGE WILLS INCORPO-
RATION ADOPTION."

"Vc^. at 358.

'^Id. at 359. The second ad was challenged not on the grounds that it was misleading

but rather because it was closely akin to a prohibited guarantee of quality. Id. For further

discussion regarding the second ad see infra text accompanying notes 113-17.

As to the first ad, the Bar had argued that its content did not "impart knowledge
designed to foster informed and reliable decision making for counsel selection;" rather,



518 INDIANA LAW REVIEW [Vol. 19:497

By contrast, the Utah Supreme Court at about the same time voiced

a more expansive concept of the state's interests which might underlie

allowable restrictions.'^ In the course of approving a set of proposed new

disciplinary rules, the court recognized the state's interest in "protecting

the public from false, deceptive, or misleading advertising, . . . and from

those aspects of solicitation that involve fraud, undue influence, intimida-

tion, overreaching, and other forms of vexatious conduct."" It also in-

dicated that the state has substantial interests in "guarding against adver-

tisements containing common, cheap or undignified claims and in main-
taining high standards of dignity and professionalism.'*" It seems fair

to characterize the Oklahoma and Utah decisions as representing polar
positions adopted by state supreme courts in the wake of R.M.J.

Within these conceptual boundaries, the resolution of various cases

following R.M.J, involved the issues of whether lawyer advertisements

regarding fees, claims of expertise in certain areas, or claims of specializa-

tion were misleading. '*'°

Two cases raised the issue of whether the manner of stating fees in
an advertisement had been misleading. In Kentucky Bar Association v.
Gangwish,^^^ a lawyer had authorized or caused the publication of an ad

in a chamber of commerce brochure that his law firm "would provide

for a period of four months a twenty-percent (20%) discount to members

of the Chamber on the cost of legal services.'""^ The court read Bates

it appealed "solely to the emotions of the reader." Id. The court disagreed and concluded

that the ad was a benefit to the public:

The perils of harm to be dealt by professional advertising must be carefully

weighed against the benefits from unimpeded flow of information. Advertising
can play a meaningful role in aiding consumers' recognition of a legal problem

and in gaining better insight into the economics of the law practice. We find
this ad free of any information which could potentially deceive or mislead the

public. Id. at 359.

'*^In re Utah State Bar Petition for Approval of Change in Disciplinary Rules on

Advertising, 647 P.2d 991 (Utah 1982).

""""Id. at 993.

"^Id.

'""Courts also adopted a variety of approaches in addressing advertising issues after

R.M.J. The Mississippi Supreme Court, in McLellan v. Miss. State Bar Ass'n, 413 So.

2d 705 (Miss. 1982), took a very straightforward approach of simply comparing a challenged

telephone book ad with that at issue in Bates. The ads were reproduced in appendices
to the opinion. Id. at 709. Finding that the advertisement in Bates was "larger in size and

more aggressive" than the one it had under consideration, id. at 707, the court permitted
it and struck down as constitutionally impermissible rules providing for the complete elimina-
tion and blanket prohibition of advertising in the yellow pages of a telephone directory.

Id. at 708. (See the ads involved in Bates and McLellan in Appendix A.).
'"'630 S.W.2d 66 (Ky. 1982).
'"Vc^. The brochure had been distributed to 727 member firms of the Northern

Kentucky Chamber of Commerce (of which the respondent's law firm was a member),
and there were approximately 1,100 assignee members of the Chamber who would have



1986] LAWYER ADVERTISING 519

and R.M.J, to say that '^advertising as to fees is limited to fees charged

for certain routine services and that misleading advertising can be pro-

hibited.'""' Without any further explanation, the court concluded that
*

'advertising '20<^o discount on legal services' is not advertising of fees

for routine legal services and is misleading in every respect.'""'* Therefore,

the attorney was publicly reprimanded.

The Wisconsin Supreme Court in In re Disciplinary Proceedings

Against Marcus similarly addressed the issue of whether the ads in ques-
tion were false, misleading, or deceptive.'"' The defendants had placed

several ads in local newspapers claiming that fees charged by many
attorneys were higher than necessary due, at least in part, to high overhead,

inefficiency, and the practice of charging by the hour. The ads listed fees

that the firm charged for particular legal services and stated that, on the

average, these fees represented savings of fifty percent. In addition, the

firm made it a practice to estimate the cost for any legal matter not covered
by a fixed fee, and the firm bore the risk of any underestimate.'"*

Characterizing the question of whether fixed fees or time charges better

serve the public interest as **a matter about which reasonable minds may
differ," the court could not say that the ads in question were "inherently

misleading.'""^ Thus, the court agreed with the referee's finding that "the

ads did not create an overall impression which was false, misleading or

deceptive.'""*

Another issue appearing with some frequency immediately following

R.M.J, was that of self-laudatory advertising and the related matter of

claims of special skill or expertise. The Mississippi Supreme Court in

been entitled to the services. Id. The court's finding "that such widespread dissemination

is in fact advertisement as contemplated in SCR 3.135," id. (emphasis added), suggests
that a less ambitious effort might have yielded a different result. The court's opinion,

however, does not discuss the issue in further detail.

'"Vc/. at 67 (emphasis in original).

""107 Wis. 2d 560, 320 N.W.2d 806 (1982).
'"^/c^. at 563, 320 N.W.2d at 808-10. The ads were published both as full page ads

and in smaller versions in the Milwaukee Journal and Milwaukee Sentinel from August

through October, 1978: Id. at 564-67, 320 N.W.2d at 809-10. (See Appendices B & C).
"'7c^. at 577, 320 N.W.2d at 815.
""^Id. Marcus also considered the procedural question of who should bear the burden

of proof regarding whether an ad is false, misleading, or deceptive. In Marcus, the Board

of Attorneys Professional Responsibility argued that the attorneys, as officers of the court,

should be required to prove the veracity of their statements. Id. at 576-77, 320 N.W.2d

at 811-12. The Board submitted that if it had the burden of proof, it would be required

to produce evidence of non-truth, the inherent difficulty of which would have rendered

the disciplinary rules against attorney advertising unenforceable. Id. at 569-70, 320 N.W.2d

at 811. The court imposed the burden on the Board, relying on the general rule in

discipHnary proceedings that the state has the burden of showing a violation. Id. at 577,

320 N.W.2d at 811.



520 INDIANA LA W REVIEW [Vol. 19:497

McLellan v. Mississippi State Bar Association^^'* addressed the issue of

whether the ad in question was self-laudatory. Comparing the ad in

question"" with those which the Supreme Court had sustained in Bates

and R.M.J. , the court found the latter "far more susceptible of being

self-laudatory" and dismissed the complaint.'" The court struck at the

core of the issue by observing that drawing attention to oneself **is the

purpose of all advertisements.'*"^

In the Schaffer^^^ case, the Bar attempted to characterize the lawyer's

ad assuring prompt legal service (in the form of a promise that there would

be no charge for any legal matter neglected for more than five days) as

misleading or potentially deceptive. The supreme court rejected this con-

tention and agreed with the lower court that although the ad was closely

akin to a prohibited guarantee of quality, the analogy was "inapposite.**"*

The court said that **[a] lawyer*s product guarantee might be deemed
potentially or presumably deceptive if it is in the nature of a promise

whose fulfillment is clearly beyond the sole control of the promisor.**"'

The court concluded, however, that the respondent's representations could

not be considered excessive "because his pledge of prompt-service-delivery-

or-free-performance [was] quite well within his own human means to
accomplish.**"* Proceeding to an analysis of a possible state interest that

the restriction might promote, the court could find none; to the contrary,

the court found the challenged ad*s content "compatible with public in-

terest.**"' Thus, the disciplinary proceedings were dismissed.

Related to self-laudatory advertising are ads which make claims as
to legal expertise. One of the ads in the Marcus case had contained the
statement: "[W]hen you come to Marcus and Tepper, the first thing you*ll
notice is the high level of legal expertise.**"' In an apparent attempt at

refutation, the Board challenging the ads had adduced evidence that, "aside
from Mr. Tepper, who was an experienced attorney, the members of the
firm had very little experience practicing law.**"' The Wisconsin Supreme
Court, however, upheld the ad, noting the absence of any proof that clients

had either complained about the level of representation they had received

or the prices charged, or had received less than a high level of legal

expertise in the handling of their legal matters.'"

"M13 So. 2d 705 (Miss. 1982).
""See supra note 100.

'"413 So. 2d at 708-09.

'''Id. at 709.

"'648 P.2d 355 (Okla. 1982). See supra text accompanying notes 89-96.

•'*Icl. at 359.

'''Id.

""Id.

'"Id.

""107 Wis. 2d at 579, 320 N.W.2d at 816.
'"'Id. at 578-79, 320 N.W.2d at 816.
''"Id. at 580, 320 N.W.2d at 816. The court also noted in support of its conclusion



1986] LAWYER ADVERTISING 521

Speaking directly to the issue of whether lawyer advertising which

contains a statement of an attorney's specialization is misleading, the Min-

nesota Supreme Court in In re Johnson}^^ vacated an attorney's admoni-

tion for making the statement that he was a Civil Trial Specialist certified

by the National Board of Trial Advocacy ("NBTA").'" The lawyer had

been licensed in the state since 1952 and had been primarily engaged in

civil trial advocacy.'" The court characterized the NBTA's certification

standards as "rigorous" and "exacting."'" Following extensive citations

to /?.M.y., the court observed that "[mjembers of the general public could

be misled by claims of specialization when no guidelines for specializa-

tion have been drawn"; however, the panel hearing the complaint had

found the ad neither misleading nor deceptive.'" Moreover, the court

regarded as overly broad under R,MJ. standards any blanket prohibition
on advertising specialization pending the Minnesota Supreme Court's pro-

mulgation of rules describing what specialty designations were acceptable

and how to get those designations.'"
Another approach adopted by some courts with respect to the prob-

lem of advertising specializations has been to require that such ads con-

tain a disclaimer of any endorsement by the respective state supreme court

concerned.'" The Arkansas Supreme- Court, for example, felt that adver-

the testimony of a prominent consumer interest attorney that "if properly supervised,

recent law school graduates could provide a high level of legal expertise." Id. at 579,

320 N.W.2d at 816. This seems to constitute an implicit recognition that the competent

performance of many routine legal services does not require years of legal experience.
'^'341 N.W.2d 282 (Minn. 1983).
'"The ad, placed in a community directory and in telephone book yellow pages,

provided in part: "Johnson, Richard W., Civil Trial Specialist Certified by the National

Board of Trial Advocacy Personal Injury Wrongful Death." Id. at 283. It was challenged

under Minnesota DR 2-105, which provided:
(A) A lawyer shall not use any false, fraudulent, misleading or deceptive

statement, claim or designation in describing his or his firm's practice or

in indicating its nature or limitations.

(B) A lawyer shall not hold out himself or his firm as a specialist unless and
until the Minnesota Supreme Court adopts or authorizes rules or regulations
permitting him to do so.

Id. (quoting DR 2-105).
'^'Id. at 282.

'^VJ. at 283. The NBTA had been formed in 1979; by the spring of 1983, it had
certified only 541 lawyers nationwide as trial specialists. Although the state bar association

had discussed the question of rules regulating specialization in 1981, it had taken no

action pursuant to its discussion. Id.

^^^Id. at 285 (emphasis added).

'"/c^. Where states have a procedure for certifying specialists, however, the Supreme
Court appears to have given a green light to rules forbidding lawyers from advertising for
any specific type of case unless they have been certified as specialists in that area. Advertis-
ing Challenge Is Dismissed, Nat'l L.J., Jan. 27, 1986, at 11, col. 1-2.

'"The Supreme Court in R.M.J, had found that the attorney's reference to being
"a member of the Bar of the Supreme Court of the United States" could be misleading
to the general public unfamiliar with the requirements of admission to its Bar. 455 U.S.

at 205. Some state courts have noted the similarity between the lack of guidelines for



522 INDIANA LA W REVIEW [Vol. 19:497

tising legal specialties could be misleading if the public believed that a

lawyer who advertised as a specialist was in some way endorsed by the
court as being competent in that specialty.'^' Thus, it requested the Board

of specialization to consider whether the term **Board Recognized

Specialist" should contain a disclaimer that the supreme court had not

endorsed the lawyers as speciaHsts.'^'

In keeping with this approach, Alabama's disciplinary rules barred

publication of any advertisement unless it contained, in legible print, the

following disclaimer: **No representation is made about the quality of
the legal services to be performed or the expertise of the lawyer perform-

ing such services.*"'" In Mezrano v. Alabama State Bar,^^^ the Bar had
challenged a lawyer who had advertised routine legal services on several
occasions in a newspaper of general circulation without including the

disclaimer.'" The Alabama Supreme Court held that because the state
had no rating system or format for identifying attorneys as specialists,

the Bar "could reasonably conclude that attorneys should not hold

themselves out as being superior to other attorneys.'"" Concluding that

**attorneys' representations about the quality of their legal services could

very well mislead the public, '"''• the court affirmed a 120-day suspen-

sion. Therefore, Mezrano is distinguishable from In re Johnson ^ a situa-
tion in which the NBTA certification standards were more definite.'"

admission to practice before the Supreme Court and the problem of specialization des-

ignations. E.g., In re Johnson, 341 N.W.2d at 285. The possibility of permissible warning
or disclaimer requirements had been suggested in both Bates, 433 U.S. at 384, and R.M.J.

,

455 U.S. at 200 n.ll.

'^"//i re Amendments to the Code of Professional Responsibility and Canons of

Judicial Ethics, 637 S.W.2d 589 (Ark. 1982).
'^"637 S.W.2d at 591.

'^"Mezrano v. Alabama State Bar, 434 So. 2d 732, 734 (Ala. 1983) (quoting DR 2-
102(A)(7)(0).

'^'434 So. 2d 732.

''^Id. at 734.

'"/<y. at 735. In further support of its conclusion, the court noted that applicants

do not receive their bar examination scores if they pass and that "Iu]pon passing the bar

examination, all attorneys are presumed to be on an equal footing." Id. As indistinguishable
as newly-admitted lawyers might be from one another, the court did not explain the

relationship between these observations and the lawyer in question, who had been licensed
for some sixteen years. Id. at 733.

^^*Id. at 735. The opinion, however, contained no finding that the public had actually

been misled. Indeed, it made no reference whatsoever to the language used in the subject
ads.

'"Besides failing to include a required disclaimer, other omissions from lawyer ad-

vertising raise similar problems. In In re Burgess, 279 S.C. 44, 302 S.E.2d 325 (1983),

for example, a lawyer whose ads promised relief from financial difficulty was sanctioned

for failing to disclose the nature of the service to be provided as bankruptcy. The disciplinary
rule at issue, DR 2-101, provided that an attorney could not use "any public communication
which (1) contains a misleading statement, (2) omits a material fact necessary to make
the statement not misleading, (3) is intended to attract clients by use of showmanship or

garish format, or (4) is presented in an undignified manner." Id. at 46, 302 S.E.2d at



1986] LAWYER ADVERTISING 523

B, Prelude to Zauderer: Forms of Advertising

A state's prohibition of illustrations in lawyer advertising was
addressed by the Supreme Court in Zauderer v. Office of Disciplinary

Counsel.^ ^^ Prior to this most recent pronouncement of the Court on

lawyer advertising, several states had addressed the validity of various other

forms of advertising, such as the use of trade names, electronic media,

and direct mail advertising. In In re SekereZt''^ the Indiana Supreme Court

addressed the question whether the prohibition against the use and adver-

tising of trade names was an unconstitutional restraint on commercial

speech and thus violative of the first amendment. The court held that

it was not."'

Sekerez had owned a number of legal clinics, all of which were named

for the particular city in which they were located (for instance, **Merrill-

ville Legal Clinic**). These cHnics had been advertised in newspapers,

telephone directories, and pamphlets. The court noted that in most of
the advertising Sekerez had included his name as well as that of the clinic,
but his name had always been in much smaller print. The court concluded
that the use of a geographic location as part of the name of a law prac-
tice constitutes the use of a trade name.'" Sekerez was consequently

charged with improper use and advertisement of a trade name and with
advertising his clinics in pamphlets constituting professional notices in viola-

tion of Disciplinary Rules 2-101(A) and 2-102(A) and (B).'"*'
Sekerez argued that the prohibition against the use of trade names

violated the first amendment. The court rejected Sekerez*s claim and
upheld its disciplinary rules regarding trade names.'*' The court reasoned
that the use of a trade name for a legal clinic is inherently misleading
because there is often much misunderstanding as to the identity, respon-
sibility, and status of the individuals working in the clinics.'*^ This was

326. The court regarded two ads as violative of the rule. The fact that the lawyer was
disbarred, however, probably rested more on his* repeated neglect of legal matters entrusted

to him. Id. at 46-47, 302 S.E.2d at 326 (emphasis in original). (See Appendix D.).

In another case a couple of months later, the court ordered only a public reprimand

for advertisements which it characterized as "remarkably similar" to the ones disapproved

in Burgess. In re Hodges, 279 S.C. 128, 303 S.E.2d 89, cert, denied, 464 U.S. 960 (1983).

"M05 S. Ct. 2265 (1985).
'"458 N.E.2d 229 (Ind.), cert, denied, 105 S. Ct. 182 (1984).

''*Id. at 243.

""M at 242.
""'M at 241.

""/flT. at 243. In Friedman v. Rogers, 440 U.S. 1 (1979), the Supreme Court similarly

upheld a prohibition on the use of trade names by optometrists. The main objection of
the Court to the use of trade names by professionals is that "the public may be attracted
by a trade name that reflects the reputation of an optometrist no longer associated with
the practice. A trade name frees an optometrist from dependence on his personal reputation
to attract clients." Id. at 13.

'"^The court in Sekerez, in reaching its conclusion, noted that the Ind. Code of
Professional Responsibility EC 2-11 states: "The use of a trade name or an assumed



524 INDIANA LA W REVIEW [Vol. 19:497

true in Sekerez, where clients had been unaware that employees of the
clinic assisting them were law students or secretaries. With respect to the

pamphlets distributed by the clinics, the court objected to the pamphlets*

failure to mention the name of a lawyer, thus amounting to advertising
under a trade name. The court stated that a lawyer cannot accomplish

indirectly what is prohibited directly.'*' Thus, the court proscribed the

use of trade names in legal clinics as inherently misleading.

The Supreme Court of Oregon in In re Magar^** addressed an issue
related to the use of a trade name when it decided whether a lawyer's
advertisement that omitted the lawyer's name was in violation of
DiscipHnary Rule 2-101(A)(l), which prohibits false and misleading com-

munications, including a material omission of fact. The Disciplinary Review

Board had found that Magar, in intentionally failing to place his name
on his advertising, had violated DR 2-101(A)(l).'*' The court avoided this
issue through an artful interpretation of the disciplinary rule. It held that

the Bar must prove that the failure to include the name in any given adver-
tisement is misleading.'*^ In this case, it found that evidence of a viola-

tion had not been established.'*'

Several recent state court decisions have dealt with the issue of attorney

advertising in the electronic media. In Grievance Committee v. Trantolo,^**

two attorneys had been charged with violations of the Connecticut Code of
Professional Responsibility DR 2-101 when they broadcast four television
commercials. The trial court ruled that DR 2-101 does not permit tele-
vised advertising by attorneys and thus reprimanded the defendants.'*'

name could mislead laypersons concerning the identity, reponsibility and status of those

practicing thereunder." 458 N.E.2d at 243.

'*'Id. at 244.

'^296 Or. 799, 681 P.2d 93 (1984).

'**296 Or. at 813, 681 P.2d at 100. Or. Code of Professional Responsibility
DR 2-101(A)(l) provides as follows: "A lawyer shall not make any false or misleading
communication about the lawyer or the lawyer's services. A communication is false or
misleading if it: (1) contains a material misrepresentation of fact or law or omits a fact

necessary to make the statement considered as a whole not materially misleading . . . ."

The Disciplinary Review Board in its opinion and the Oregon State Bar, in its brief

to the Court, regarded the advertising as misleading because it deprived the reader of the

opportunity to check out the lawyer's reputation with friends or relatives before hiring

him. 296 Or. at 816, 681 P.2d at 102.

The trouble with this argument is that it ignores the reason for permitting attorney

advertising in the first place: people need more information about attorneys. If they are

initially familiar with an attorney's reputation or know people who are acquainted with
the attorney they certainly will not pay very much attention to an advertisement.

'*^Id. at 817, 681 P.2d at 102.

'*'Id. at 818, 681 P.2d at 103.
'^"192 Conn. 15, 470 A.2d 228 (1984).
'"Vc^. at 20, 470 A.2d at 231. Prior to Bates, the Connecticut Code of Professional

Responsibility DR 2- 101(B) (1972) explicitly prohibited television advertising as well as
other forms of advertising. After Bates, DR 2-101 was revised as follows:



1986] LAWYER ADVERTISING 525

In overturning the decision of the trial court, the Supreme Court of Con-

necticut noted that the Connecticut Code does not explicitly prohibit or
authorize television advertising by attorneys."" Because it did not

specifically address this point, the court regarded the rule as ambiguous.*"

It concluded that while the state has a substantial interest in regulating

legal advertising, **a blanket restriction on television advertising is not

the sort of narrow regulation that the Supreme Court countenanced in

R.M.J, and Central Hudson Gas.**^^^ Thus, the court permitted attorneys

to advertise on television, subject to reasonable regulations.'"

In In re Felmeistery^^* the regulation at issue similarly banned radio

and television advertising by lawyers. The defendants Robert A. Felmeister

and Hanan M. Isaacs contacted the Supreme Court of New Jersey's
Advisory Committee on Professional Ethics and stated that they felt the

state's ban on attorney advertising through radio or television was un-
constitutionally broad. The Division of Ethics and Professional Services

informed the defendants that the matter was presently before New Jersey's
Supreme Court Committee on Attorney Advertising and invited the defen-

dants, as interested parties, to testify before the Committee. The defen-

dants, nevertheless, chose not to appear and also allowed their adver-

tisements to be broadcast over radio.

The Division of Ethics and Professional Services then filed charges
against them for their willful and deliberate violation of the ban on radio

advertising. On review, the court noted that the issue was not the con-
stitutionality of a total ban, but rather whether the court can assure that

its rules of conduct are obeyed even when under challenge.'*' The court
concluded that even where statutes have been held unconstitutional, en-

forcement during the challenged period is permissible.'" The court reasoned

(A) A lawyer shall not, on behalf of himself, his partner, associate or any other
lawyer affiliated with him or his firm, use, or participate in the use of, any

form of public communication containing a false, fraudulent, misleading, de-

ceptive, self-laudatory or unfair statement or claim, nor shall any such com-

munication be in an extravagant format. (B) In order to facilitate the process

of informed selection of a lawyer by the public, a lawyer may publish, subject
to DR 2-103 and any guidelines adopted by the Superior Court, the following
information in newspapers, periodicals and other printed publications provided

that the information disclosed by the lawyer in such publication complies with

DR 2- 101 (A) and is presented in a dignified manner ....
192 Conn, at 18, 470 A.2d at 230 n.3 (emphasis added).

""M. at 20, 470 A.2d at 231.

'''Id. at 22, 470 A.2d at 232.
'"/^. at 25, 470 A.2d at 233.

'"Id. at 26, 470 A.2d at 234. The court, however, remanded the case to the trial
court to determine if the advertisements in question violated the disciplinary rules in some

other way. Id. at 26-27, 470 A.2d at 234.
''"95 N.J. 431, 471 A.2d 775 (1984).

'"M at 442, 471 A.2d at 781.
''"Id. at 444, 471 A.2d at 782.



526 INDIANA LA W REVIEW [Vol. 19:497

that the defendants' overbreadth challenge to the rule was not available
where commercial, rather than political, speech was at issue. '^^

Of the recent cases that have considered the issue of attorney adver-
tising in the electronic media, perhaps the most consequential is Commit-

tee on Professional Ethics v. Humphrey. ^^^ In Humphrey, the defendant

lawyers Humphrey, Haas, and Gritzner had aired three different adver-

tisements over a Des Moines television station during a three-day period.

Each of these advertisements portrayed a dramatic situation emphasizing
that persons injured through the negligence of others should consult a

lawyer. These dramatizations were followed by a scene depicting the recep-

tion area of a law office. Superimposed over this scene were the name,

address, phone number, and areas of practice of the defendants' law firm.

While this scene was being shown, a voice encouraged persons who felt
they had been injured through the negligence of others to call the defen-

dants. The voice also stated that cases would be handled on a percentage
basis and that there would be no charge for an initial consultation. The

ethics committee subsequently charged the defendants with violations of

Iowa's Code of Professional Responsibility DR 2-101. Iowa's DR 2-101
permitted television advertising with several restrictions. The rule provided

that only a single, non-dramatic voice, not that of a lawyer, with no other

background sound could be communicated on television.'"

The lawyers contended this rule was unconstitutionally vague and
violative of the first amendment. '*° The committee on professional ethics
and conduct argued that the defendants' television advertisement could

be misleading to the public in two ways: (1) the advertisement could be

interpreted as implying it costs nothing to sue,'^' and (2) it included self-

'"M at 446-47, 471 A.2d at 783.
"«355 N.W.2d 565 (Iowa 1984), vacated and remanded, 105 S. Ct. 2693 (1985).
'"Iowa Code of Professional Responsibility DR 2- 101(B) lists nineteen items that may

be mentioned in advertising. It further provides with respect to television advertising:

The same information, in words and numbers only, articulated by a single

nondramatic 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.

All such communications on radio and television, to the extent possible, shall

be made only in the geographical area in which the lawyer maintains offices

or in which a significant part of the lawyer's clientele resides. Any such in-
formation shall be presented in a dignified manner ....

355 N.W.2d at 568-69 (quoting Iowa Code of Professional Responsibility DR 2-101(B)).
"^he court criticized the lawyers for not availing themselves of the procedure provided

in the rules for a reconsideration of the rules, as opposed to rushing out and running

the advertisements. "It should be scarcely necessary to point out that any lawyer asserting

the wisdom of a rule change, should present the proposal to the committee under the

procedure we have provided. The professional disciplinary system would be in utter chaos
if violations could be defended on the ground the lawyer involved could think of a better

rule." 355 N.W.2d at 569.
"'The advertisement stated that certain cases were handled on a percentage basis and

that there was no other charge for initial consultation. It, however, did not mention



1986] LAWYER ADVERTISING 527

laudatory comments on the advertisers' expertise.'" The court agreed that

these advertisements could mislead the public and therefore issued a writ

restraining continued placement of the ads.'*' The court also concluded
that Iowa's DR 2-101 was within the area that a state can properly regulate
and was not too vague or more expansive than necessary to serve the

state's interests.'" The court reasoned that all the rule prohibited were

the tools that would manipulate the viewer's mind and will.'"
Other state cases have dealt with the issue of whether attorney adver-

tising via direct mail is permissible. In Spencer v. Honorable Justices of

Supreme Court of Pennsylvania^^^^ the plaintiff-attorney sought a declara-

tion that various provisions of the Pennsylvania Code of Professional

payment of expert witnesses or other costs of litigation. 355 N.W.2d at 570.
"•^In fact, Humphrey had tried six cases, and Haas had virtually no trial experience.

Id. at 570. The opinion does not state what self-laudatory statement was in question.

'^The court went on to uphold Iowa's television advertising rule. Justices Larson

and McCormick dissented. Larson objected to the "laundry list" of allowable advertising

content found in DR 2- 101(B), and to the requirements on technique in television advertising.
"The combined effect of the rules is to inhibit dissemination of relevant information

without a showing of a substantial state interest. This violates the free speech clause of

the first amendment." 355 N.W.2d at 572 (Larson, J., dissenting).
Justice Larson noted that the test set forth by the Supreme Court in Central Hudson

specifies that speech is not protected if it concerns an unlawful activity or is misleading.

He observed that the majority objected to the advertising in this case because it might
be misleading. He noted that this, however, is not the proper test to apply to commercial
advertising. Id. Furthermore, he felt that these advertisements were not reasonably likely

to deceive the public in any event. The Iowa rules do not require the disclosure of costs

except when the advertisement mentions a contingent fee rate. Id. Here the attorneys

merely said the fee would be a percentage. He thought this matter could be resolved at
the first conference with the lawyer. Id. at 574. He also rejected the conclusion that the
advertisements overstated the lawyers' qualifications. Id.

Because he viewed the advertisements as concerning a lawful activity and not

misleading, Larson reasoned that the advertisements could be restricted only if the state's

regulations complied with the balance of the Central Hudson test. Larson argued that

the restrictions failed in this case because the committee never established a substantial

state interest. The Iowa rule restricts the amount of information available to the public.

The public would be better off with more information — not less. Larson would have
adopted a false and misleading standard in place of Iowa's current version of DR 2-
101(B) and its laundry list approach of permissible information that may appear in
advertisements. Id. at 575-76.

In April, the United States Supreme Court voted 6-3 to dismiss the lawyers' appeal.

Justices Rule on Fees, Advertising, Nat'l L.J., May 5, 1986, at 27, col. 1. The practical
significance of the decision, however, may be limited because only five other states have
restrictions at least as severe as Iowa's, and two of them have amendments under con-

sideration to relax their rules. The chairman of the ABA's commission on advertising has

expressed doubt that other states would be likely to amend their rules to tighten up on

television advertising. Id.

"^355 N.W.2d at 571.
'"'Id.

"*579 F. Supp. 880 (E.D. Fa. 1984).



528 INDIANA LAW REVIEW [Vol. 19:497

Responsibility banning all solicitation were unconstitutional.'*^ The plain-
tiff attempted to use direct mail to solicit the business of aircraft owners,

pilots, computer users, and others. The defendants contended that direct

mailing is permissible to the extent it constitutes advertising, but imper-

missible to the extent it constitutes solicitation. The court determined that

this standard was too vague to be enforceable.'*' In addition, the court held

that the absolute ban on direct mail solicitation was unconstitutional in

light of the application of the Central Hudson test for commercial
speech.'"

The court determined that the regulation failed the first prong of Cen-

tral Hudson which maintains that commercial speech is protected where
it is lawful and not misleading."® The court determined that the total

prohibition on direct mail solicitation inevitably swept within its effect

some protected speech.'" The court also concluded that the second part

of the Central Hudson test was not met. It requires that where speech
is not misleading, the state must assert a substantial interest in regulating

the expression."^ The court rejected all three proferred state interests. As

to the state's contention that its regulation protected the public from an

invasion of privacy, the court concluded that recipients of direct mail

advertising could avoid an affront to their sensitivities by simply throw-

ing the letters away.'" The court also rejected the state's contention that

direct mail solicitation presents evils of undue influence and overreaching

because, contrary to in-person solicitation, the recipient of a mailing has

time to investigate the lawyer with no pressure to respond."* Finally, the

court rejected the state's contention that it was protecting the public from

conflicts of interest because the state simply failed to prove its

contention.'"

"•The Pennsylvania Code of Professional Responsibility provisions at issue were DR
2-103(A) and DR 2-104(A). DR 2-103(A) states: "A lawyer shall not recommend em-
ployment, as a private practitioner, of himself, his partner, or associate to a nonlawyer

who has not sought his advice regarding employment of a lawyer." DR-2104(A) provides:
"A lawyer who has given unsolicited advice to a layman that he should obtain counsel
or take legal action shall not accept employment resulting from that advice . . . ." Pa.

Code of Professional Responsibility DR 2-103(A); DR 2-104(A) (1974).
"«579 F. Supp. at 888-89.

'""Id. at 889 (citing Central Hudson, 447 U.S. 557, 566 (1980)). Judge Lord noted

that direct mail provides the public with useful information. To prohibit such mailings
would prevent people from learning about the availability, nature, and price of products

and services. Id. at 891. Additionally, even if direct mail increased the number of suits,
the alternative of more suits would be preferable to letting people suffer in silence. Id.
(citing Bates v. State Bar of Arizona, 433 U.S. 364, 376 (1977); In re Primus, 433 U.S.

412, 436-37 (1978)).

''°W. (citing In re R.M.J., 455 U.S. 191, 205 (1982)).

'''Id.

'''Id.

"'Id. at 890.

''*Id.

"'Id.



19861 LAWYER ADVERTISING 529

In another case dealing with a state's absolute ban on mailed solicita-

tions, the Connecticut Supreme Court similarly held that the regulation
was unconstitutional in light of Central Hudson. ^^^ In Grievance Com-
mittee V. Trantolo, the defendants had sent printed announcements re-

garding the opening of their law clinic to people with whom they had
had no prior professional or personal relationship. They also included

a brochure describing their clinic. They were consequently charged with

a violation of DR 2-103(C).'''
The court determined that this blanket prohibition on direct mail

solicitation violated the Central Hudson test because the state had failed
to prove that its prohibition was not more extensive than necessary to
serve its interests."' The state contended that its regulation was necessary
in order to preserve the personal relationship between a lawyer and client

and to prevent the evils of solicitation. Specifically, the court determined

that there were less intrusive means of satisfying the state's concerns —
such as requiring that a copy of the mailing be filed with the grievance

committee. '''

In In re von Wiegen,^*^ the New York Court of Appeals similarly
held that the state's ban on direct mail solicitation was impermissible in

that case.'" The court focused on whether the defendant attorney's mail

solicitation of accident victims implicated more substantial state interests

than an attorney's solicitation of other clients, thereby justifying a pro-

scription of such mailings. The Committee on Professional Standards had

brought a disciplinary proceeding against the defendant attorney based

on his direct mail solicitation of the victims injured when the sky-walk
collapsed at the Hyatt Regency Hotel in Kansas City, Missouri, in July,

1981.

As with the two prior cases, the court applied the Central Hudson
test. Because this direct mail solicitation was not related to an unlawful

activity, nor was it inherently misleading, the court examined the govern-

mental interests involved in prohibiting such direct mail. The state had

contended that it had interests in preventing over-commercialization of

the profession, invasion of privacy, the stirring up of litigation, and the

potential for deception. The court concluded that these interests were not

of sufficient magnitude to override the public's interest in receiving infor-

•'"Grievance Committee v. Trantolo, 192 Conn. 27, 470 A.2d 235 (1984).

'"The mail allegedly violated Connecticut Code of Professional Responsibility DR 2-
103(C) (1972). 192 Conn, at 30-31, 470 A.2d at 236-37.

'^"192 Conn, at 35, 470 A.2d at 239.

''''Id.

"'°63 N.Y.2d 163, 470 N.E.2d 838, 481 N.Y.S.2d 40, cert, denied, 105 S. Ct. 2701

(1985).

""M at 175, 470 N.E.2d at 845, 481 N.Y.S.2d at 47. The court noted, "In sum,
the State cannot establish interests of sufficient magnitude to override the public's interest

in receiving information on the availability of legal services and the danger of deception

presented by the mailing may be controlled by the filing requirement." Id.



530 INDIANA LA W REVIEW [Vol. 19:497

mation on the availability of legal services.'" The court also concluded
that a complete suppression of direct mail was not justifiable because less

drastic alternatives, such as the filing of such letters with the state, could

be required."' Thus, the charge of direct mail solicitation was dismissed.

In contrast to the above cases, other states have addressed an at-

torney's use of direct mail advertising by examining whether or not it con-

stituted impermissible solicitation. In State v. Moses,'** a. Kansas lawyer

had acquired a list of persons in the process of selling their homes and
mailed them a letter advertising his services. The attorney was charged

with violating Disciplinary Rule 2-103, which prohibits an attorney from

recommending himself as a private practitioner to laypersons who have
not sought his advice regarding employment. Noting a ** distinction bet-

ween advertising, which may not be prohibited, and direct solicitation,
which may,** the Kansas Supreme Court said that although the letter was

not "of the nature of ambulance chasing and hospital room solicitation,**
it was nevertheless **directed to a segment of the public which, under

present economic conditions, is extremely vulnerable to a suggestion of

employment that may or may not be advantageous to the individual
homeowner.**'" Without further explanation, the court expressed its opin-

'*^Specifically, the court noted that over-commercialization is now controlled by the

advertising standard in DR 2-101. Furthermore, it did not view the mailings as constituting
a substantial invasion of privacy because people could throw the letters away. While the

letters might generate suits, the court noted that the victims of this tragedy needed legal

counsel. It also conceded that there was a potential for deception — but not as in the case
of in-person solicitation. Furthermore, because the court earlier had ruled that such letters

must be filed with the state, there would be less likelihood for publication of improper

statements. 63 N.Y.2d at 173-75, 470 N.E.2d at 844-45, 481 N.Y.S.2d at 46-47.

'''Id. at 175, 470 N.E.2d at 845, 481 N.Y.S.2d at 47.

"^231 Kan. 243, 642 P.2d 1004 (1982). Following a personal and individualized

salutation, each letter stated:

As homeowners of today, you are by now well aware of the harsh realities
restraining the current real estate market. Inflation, unemployment, and high

interest rates all combine to make selling a home a difficult prospect indeed.

Selling your home *By Owner,' will not only save you thousands of dollars,

but will increase your chances of selling by offering a lower, but fair, market

price. However, many sellers are reluctant to do this — mainly because they
feel inexperienced in the legal requirements and technicalities.

As a real estate consultant with 33 years of experience, my $300.00 fee in-
cludes all the necessary paperwork, contracts, deeds, and related materials to assist

you in selling your home. In addition, you will receive expert advice and any

necessary consultations.

If your house is listed, it's easy to terminate the listing contract by simply

calling your broker and advising him you want to cancel your listing contract

and have him send you the contract marked 'cancelled.'
For additional information, call my office at 273-2392 for an appointment,

Monday through Friday.
s/ Earl C. Moses, Jr.

Earl C. Moses, Jr.

Id. at 244-45, 642 P.2d at 1006.

""/c^. at 246, 642 P.2d at 1007. This classification is subject to criticism on two



1986] LAWYER ADVERTISING 531

ion that the regulation and restriction of personal solicitation worked **to

the benefit of the general public and to the fair administration of justice**

and held that ** direct solicitation of a stranger by an attorney for employ-

ment for a particular legal matter** violated DR 2-103.'** Thus, the court
proscribed the attorney's use of direct mail as impermissible solicitation.

In In re Alessi,^^^ the attorneys were similarly charged with a viola-

tion of Disciplinary Rule 2-103 prohibiting solicitation when their legal

clinic mailed letters, not to homeowners, but to some one hundred realtors

in the Albany area quoting fees for listed real estate transactions. The

court upheld the finding of professional misconduct and distinguished what

types of solicitation are prohibited. The court noted that here the mail-

ings were made to realtors whose interests could be more intertwined with
the attorneys* interests than with their clients* interests.'" The court em-

phasized that it was not imposing a **general ban upon all mailings by

attorneys to others than potential clients**; rather, its prohibition was

limited to third-party mailings involving a conflict of interest. ^^^ Thus,

grounds. First, the court seeks to protect persons who would most benefit from additional
information. The classification is, in effect, criticizing the defendant for advertising his

services in the area of real estate transactions to persons currently selling their homes.

Granted, these people are more likely to employ the defendant, but such employment is

the purpose of advertising. Furthermore, the services offered in the letter represent a

viable option for the recipient. As stated by the Supreme Court in Bates, "The bar
retains the power to correct omissions that have the effect of presenting an inaccurate

picture, [although] the preferred remedy is more disclosure, rather than less." 433 U.S.
at 375. The court, in the present case, seems to assume that the recipients of this letter

would blindly leap at the opportunity presented merely because the letter is signed by an

attorney. Second, by prohibiting advertising to persons "vulnerable to a suggestion of

employment," the court has in effect prohibited effective advertising. Such a prohibition,

whether achieved directly by express statute or indirectly through similar broad classifi-

cations, seems unconstitutionally broad.
'«*231 Kan. at 246, 642 P.2d at 1007. The holding leaves open the question of the

extent to which acquaintances or existing clients might permissibly be solicited. C/. Walls

V. Miss. State Bar, 437 So. 2d 30 (Miss. 1983) (court declined to discipHne two attorneys

who had advertised and held an "open house" for their new office, but had not actually
solicited clients in any way).

'•'^60 N.Y.2d 229, 457 N.E.2d 682, 469 N.Y.S.2d 577 (1983), cert, denied, 104 S.

Ct. 1599 (1984). Two earlier cases had involved a similar situation. In In re Greene, 54
N.Y.2d 118, 429 N.E.2d 390, 444 N.Y.S.2d 883 (1981), the decision was against the

lawyer. Kentucky Bar Association v. Stuart, 568 S.W.2d 933 (Ky. 1978), had yielded just

the opposite result.

'^O N.Y.2d at 234-35, 457 N.E.2d at 686, 469 N.Y.S.2d at 581.
''"Id. at 234, 457 N.E.2d at 685-86, 469 N.Y.S.2d at 581 (emphasis added). The

court continued:

What is proscribed is mailing to that limited number of third persons who
themselves may have dealings with potential clients of the attorney from which
a conflict of interest may result. Wholly unrelated to the content of the letter
[see generally Note, Content Regulation and the Dimensions of Free Expression,

96 Harv. L. Rev. 1854 (1983)], the proscription is not against the attorney

making known to potential clients the availability of his services or even against
his doing so through third parties, but against his doing so in a particular



532 INDIANA LA W REVIEW [Vol. 19:497

the New York court's focus on the conflict of interest issue in Alessi clearly
distinguished its position from the Kansas court's general opposition to

solicitation in Moses. ^^^

IV. The Zauderer Case

The Supreme Court issued its most recent clarification of lawyer adver-

tising in Zauderer v. Office of Disciplinary Counsel of the Supreme Court

of Ohio.
^^^ The Court determined whether three forms of Ohio's regula-

tion of lawyer advertising were violative of the first amendment. These

regulations included a prohibition on soliciting legal business through

advertisements containing advice and information about speciHc legal prob-

lems, restrictions on the use of illustrations, and disclosure requirements

regarding contingent fees. The Court held that the first two regulations

were violative of first amendment protections under the Central Hudson
test for commercial speech.'" The Court held, however, that the state's
disclosure requirements regarding contingent fees were reasonably related

to the state's interest in preventing consumer deception.'" The Court also

addressed whether Zauderer was denied procedural due process when
disciplined in connection with a drunk driving advertisement and concluded

that he was not."*

There were two advertisements at issue in Zauderer. One contained

manner: through a third party whose interests may be more closely intertwined

with those of the attorney than with those of the client.

Id. at 234-35, 457 N.E.2d at 686, 469 N.Y.S.2d at 581.

""Indeed, several years earlier the New York Court of Appeals had rejected the
"artificial distinction" between advertising and solictation and held that a direct mailing

of 7,500 letters by lawyers to individual property owners was constitutionally protected

under the first amendment. Koffler v. Joint Bar Association, 51 N.Y.2d 140, 412 N.E.2d

927, 432 N.Y.S.2d 872 (1980), cert, denied, 450 U.S. 1026 (1981). It must be remembered,

of course, that although truthful direct mail advertising cannot be forbidden, lawyers may
be disciplined for mass mailings that are deceptive or not identified as pitches for business.

Thus, two California lawyers who had sent 250,000 letters to civil defendants over a VA
year period advising of the legal options available to debtors were sanctioned where the

letters were found to be misleading. Firm's Mass Mailing Held Deceptive, Nat'l L.J., Sept.

9, 1985, at 6, col. 1-4.

'^'105 S. Ct. 2265 (1985).

'«/</. at 2280.

"7c^. at 2282. Cf. Lyons v. Alabama State Bar, 451 So. 2d 1367 (Ala.), cert, denied,

105 S. Ct. 385 (1984). The attorneys had been charged with failing to include a reasonably

accurate estimate of court costs in their advertisement which stated: "Video Taped Will

. . . $250.00 . . . (Above Fees Do Not Include Court Costs)." 451 So. 2d at 1368. In
light of the latter statement and in the absence of a substantial state interest in including

a list of specific court costs in the advertisement, the court dismissed the charge. Id. at

1372. The court noted, "An inclusion of specific costs would have made the advertisement
more informative to some, but that, in and of itself, is not enough to cause the advertisement
to be misleading. Anyone reading the advertisement would have been aware that the prices
did not include court costs and could have taken steps to determine what those costs

were." Id.

"^105 S. Ct. at 2284.



1986] LAWYER ADVERTISING 533

an illustration of the Dalkon Shield intrauterine device and stated that
it was not too late to take action against the manufacturer for injuries

caused by the device. Additionally, the ad stated that the cases would

be handled on a contingent fee basis and that if there was no recovery,

no **legal fees [would be] owed by our clients.""' The other ad offered

assistance if a defendant was accused of drunk driving and stated that

the **[f]ull legal fee [would be] refunded if [the defendant was] convicted

of DRUNK DRIVING.'"'*
Zauderer had been prompted to institute the Dalkon Shield advertis-

ing campaign as a result of In re Appert,^^^ a. Minnesota Supreme Court

decision upholding such an advertisement. The Minnesota Supreme Court

had examined brochures and circulars used by Appert and his partner

concerning the Dalkon Shield intrauterine contraceptive device. It upheld

the right of Appert to engage in such advertising in order to locate women
interested in bringing suit for injuries sustained by using the Dalkon Shield.

Zauderer had first (before Appert) tried to obtain the consent of the

Ohio disciplinary authorities to place the Dalkon Shield advertisement in

Ohio newspapers. The Office of Disciplinary Counsel of the Supreme

Court of Ohio advised him that such an advertisement would violate

Disciplinary Rule 2- 101(B), which prohibits the use of illustrations, re-

quires that ads be ** dignified,*' and provides a list of what may be in-
cluded in the ad."' Therefore, Zauderer chose not to run any advertising

"' Id. at 2269. (See Appendix E.).

""Id. (See Appendix F.).

'^^315 N.W.2d 204 (Minn. 1981). See Stewart, A Picture Costs Ten Thousand Words,
71 A.B.A. J. 62, 63 (1985).

The court in In re Appert ruled that the state had failed to demonstrate a compelling

justification for prohibiting this type of advertising. In light of the substantial interest of

the injured women as well as the interest of the public in finding out this information,
the court ruled that the state's interest was "not sufficiently compelling" to justify a

restriction of the first amendment rights involved. 315 N.W.2d at 212.
Interestingly, Appert and his partner obtained seventy-five new cases as a result of

their advertising campaign, thereby suggesting it was a very effective method of advertising.
Id. at 206.

'""Ohio's Code of Professional Responsibility DR 2-101(B) reads as follows:
In order to facilitate the process of informed selection of a lawyer by potential

consumers of legal services, a lawyer may publish or broadcast, subject to DR
2-103, in print media or over radio and television. Print media includes only

regularly published newspapers, magazines and other periodicals, classified tele-

phone directories, city, county and suburban directories, law directories and law

lists. The information disclosed by the lawyer in such publication or broadcast

shall comply with DR 2- 101 (A) and be presented in a dignified manner without
the use of drawings, illustrations, animations, portrayals, dramatizations, slogans,

music, lyrics or the use of pictures, except the use of pictures of the advertising

lawyer, or the use of a portrayal of the scales of justice. Only the following

information may be published or brodcast:
(1) Name, including name of law firm and names of professional associates,

addresses and telephone numbers.

(2) One or more fields of law in which the lawyer or law firm is available
to practice, but may not include a statement that the practice is limited



534 INDIANA LA W REVIEW [Vol. 19:497

at that time. Later, however, after the issuance of the Minnesota Supreme

to or concentrated in one or more fields of law or that the lawyer or

law firm specializes in a particular field of law unless authorized under

DR 2-105;
(3) Age;

(4) Date of admission to the bar of a state, or federal court or administrative

board or agency;

(5) Schools attended, with dates of graduation, degrees and other scholastic

distinctions;

(6) Public or quasi-public offices;

(7) Military service;

(8) Published legal authorships;

(9) Holding scientific, technical and professional licenses, and memberships in

such associations or societies;

(10) Foreign language ability;

(11) Whether credit cards or other credit arrangements are accepted;

(12) Office and telephone answering service hours;

(13) Fee for an initial consultation;

(14) Availability upon request of a written schedule of fees or an estimate of

the fee to be charged for specific services;

(15) Contingent fee rates subject to DR 2- 106(C), provided that the statement
discloses whether percentages are computed before or after deduction of

court costs and expenses;

(16) Hourly rate, provided that the statement discloses that the total fee charged

will depend upon the number of hours which must be devoted to the

particular matter to be handled for each client and the client is entitled

without obligation to an estimate of the fee likely to be charged, in print

size at least equivalent to the largest print used in setting forth the fee

information;

(17) Fixed fees for specific legal services;

(18) Legal teaching positions, memberships, offices, committee assignments, and

section memberships in bar associations;

(19) Memberships and offices in legal fraternities and legal societies;

(20) In law directories and law lists only, names and addresses of references,

and, with their written consent, names of clients regularly represented.

Ohio Code of Professional Responsibility DR 2- 101(B) (1982).
This so called "laundry list" of permissible advertising is similar to the rules considered

by the Supreme Court in In re R.M.J. See supra note 75. Ohio's version of DR 2-101(B)
differs very little from the A.B.A. Model Code of Professional Responsibility. See infra

text accompanying notes 286-301.

Counsel for the Office of Disciplinary Counsel argued to the Supreme Court that

a "laundry list" approach as utilized in Ohio's DR 2-101(B) is the only practical way to
police lawyer advertising. A precisely worded rule enables attorneys who see professional
advertising to recognize advertising in violation of the rule and thus be in a position to

report violations to the Office of Disciplinary Counsel. Consequently, the rules in question

are rationally related to the state's compelling interest in preventing misleading advertising

by lawyers. See Court to Deal Again with Lawyer Advertising, Nat'l L.J., October 15,

1984, at 5, col. 1.

One, however, can certainly question the need for practicing attorneys to report

advertising violations to the Office of Disciplinary Counsel. The test enunciated in In re

R.M.J, specifically stated, "[R]estrictions upon such advertising may be no broader than
reasonably necessary to prevent the deception." 455 U.S. at 203-04. A less restrictive
alternative is available in the case of all advertising. As the R.M.J. Court noted with



1986] LAWYER ADVERTISING 535

Court's decision in In re ApperV^^ and the Supreme Court's favorable

lawyer advertising decision in In re R.M.J.,^^^ Zauderer again met with

the staff of the Office of Disciplinary Counsel to discuss his proposed

advertisement. The parties agreed that the Dalkon Shield advertisement
failed to conform to DR 2-101 and that certain aspects of this rule were
not touched upon in the R.M.J, case. Although the Disciplinary Counsel

took no position as to whether the advertisement in question should be

published, Zauderer, relying upon the Supreme Court's decision in R.M.J.

and his behef that Ohio's regulations were unconstitutional, ^°* chose to

run the advertisement^"^ in three dozen Ohio newspapers. ^"^ He received
234 inquiries and filed ninety-five lawsuits.^®''

After placing the advertisement dealing with drunk driving in The

Columbus Citizen-Journal, ^^^ Zauderer received a call from the Office of

respect to mailed advertising, a state may police it "by requiring a filing with the Advisory
Committee of a copy of all general mailings, [thus] the State may be able to exercise
reasonable supervision over such mailings." Id. at 206.

Obviously, the same is true of all advertising. The state could require that attorneys

file all advertising in a central location. Persons familiar with the state rules with respect

to advertising could then review it for compliance with those rules. Thus, there would

be no need for members of the practicing bar to be able to spot every advertisement that

fails to conform to the rules.
"^315 N.W.2d 204 (Minn. 1981).
-"<'455 U.S. 191 (1982).

-•"105 S. Ct. at 2274. See also Stewart, supra note 197, at 63.

^"V/7 re Complaint against Philip Q. Zauderer v. Office of Disciplinary Counsel,

Findings of Fact and Recommendation of the Board of Commissioners on Grievances

and Discipline of the Supreme Court of Ohio, No. 454 at Exhibit B, Office of Disciplinary

Counsel v. Zauderer, 10 Ohio St. 3d 44, 461 N.E.2d 883 (1984), aff'd in part, rev'd in

part, 105 S. Ct. 2265 (1985) [hereinafter cited as Complaint against Zauderer].

^"The newspapers had a combined circulation of 1,860,160. This advertisement ap-

peared on those days on which it was most likely to reach the greatest number of women
readers. Stewart, supra note 197, at 63-64.

-"^Zauderer still has 70 of his cases pending. Stewart, supra note 197, at 64. Thus

far, he has received more than two million dollars through settlements — all on a contingent
fee basis. Id. This suggests that placing the advertisements in question has already turned

out to be richly rewarding.

In fact, there is a certain advantage to engaging in activities other persons regard

as unethical or even illegal. In this case, the advantage is that other people are not going

to advertise. One might ask whether placing advertisements such as the one discussed in

this case really makes economic sense. As the Supreme Court gradually lowers the inhibitions

of other lawyers, more attorneys will advertise. The likely effect of this will be that
advertising as a whole will be far less effective — or perhaps not effective at all. It is
the failure of others to advertise, in the authors' opinion, that results in such advertising

being so successful.

-"'Complaint against Zauderer, supra note 202, at Exhibit A.

Zauderer's thinking with respect to advertising makes a great deal of sense. He chose
not to place a general advertisement, but rather specifically advertised for clients likely

to have a particular legal need — namely women injured by the Dalkon Shield and people
who had been arrested (or who might be arrested) for driving while intoxicated. Obviously,



536 INDIANA LA W REVIEW [Vol. 19:497

Disciplinary Counsel advising him that the advertisement constituted an

offer to accept a criminal case on a contingent fee in violation of DR
2-1 06(C). ^°* Zauderer immediately stopped the advertisement. Although

he received two inquiries in response to the advertisement, Zauderer de-

clined to represent these callers. In a letter to the Disciplinary Counsel

he admitted the advertisement violated the prohibition against contingent

fees in criminal cases. His letter indicated that he had merely forgotten

about this rule.^**'

these people have a specific need for legal services while the average person really never

needs the services of an attorney. It certainly makes the most sense to try to identify people

who actually need the services of an attorney because these people are the most likely to
see and respond to the advertisement in question.

Many other attorneys have tried the same strategy of placing advertisements aimed

at people with a need for specific legal services. See, e.g., Kentucky Bar Association v.

Stuart, 568 S.W.2d 933 (Ky. 1978) (attorneys mailed letters to real estate agencies concerning

their willingness to engage in real estate law); Woll v. Kelley, 409 Mich. 500, 297 N.W.2d

578 (1980) (attorneys sent letters to retired union members concerning workmen's com-

pensation claims); Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140, 412 N.E.2d 927, 432 N.Y.S.2d

872 (1980) (attorneys sent letters to real estate owners notifying them of their willingness

to perform services with respect to the sale of real property and to real estate brokers

asking them to refer clients to the lawyers); In re Greene, 78 A.D.2d 131, 433 N.Y.S.2d

853 (1980), affd, 54 N.Y.2d 839, 429 N.E.2d 390, 444 N.Y.S.2d 58 (1981) (lawyer mailed

flyers to real estate brokers requesting them to refer individuals to him for legal services

in the sale or purchase of real property); Dayton Bar Ass'n v. Herzog, 436 N.E.2d 1037

(Ohio 1982) (lawyer mailed letters to defendants in municipal court cases which were listed

in the Daily Court Reporter).

^**^The Ohio Code of Professional Responsbility DR 2-106 reads as follows:
(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal
or clearly excessive fee.

(B) A fee is clearly excessive when, after a review of the facts, a lawyer of or-
dinary prudence would be left with a defmite and firm conviction that the fee

is in excess of a reasonable fee. Factors to be considered as guides in determining

the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions involved,

and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client,

(7) The experience, reputation, and ability of the lawyer or lawyers performing the

services.

(8) Whether the fee is fixed or contingent.
(C) A lawyer shall not enter into an arrangement for, charge, or collect a con-
tingent fee for representing a defendant in a criminal case.

Ohio Code of Professional Responsibility DR 2-106 (1982).
^'"Stewart, supra note 197, at 64. The objectionable wording in this advertisement

apparently was the phrase, "[fjull legal fee refunded if convicted of DRUNK DRIVING."
This arguably amounts to an offer to take a criminal case on a contingent fee basis.



1986] LAWYER ADVERTISING 537

The Office of Disciplinary Counsel then filed a complaint against

Zauderer alleging he had violated the Disciplinary Rules of the Ohio Code
of Professional Responsibility by placing the Dalkon Shield and drunken

driving advertisements.^**' There were a number of charges against Zauderer
concerning the Dalkon Shield advertisement. He was charged with violating
the prohibition against the use of illustrations in advertisements,^*" failing

to advertise in a dignified manner,^'" and violating his oath of office.^"

In an amended complaint, the state added two new counts. It asserted
that Zauderer had not properly disclosed in the advertisement whether

contingent fee percentages would be computed before or after the deduc-

tion of court costs and expenses.^ '^ Finally, the state charged that by
placing these advertisements he had violated the rule that prohibits an

attorney from recommending employment of himself to one who has not
sought his advice regarding the employment of a lawyer^'' and the rule

that prohibits an attorney from accepting employment after giving un-

solicited advice to an individual that he obtain counsel or take legal

action.^'* The complaint also charged that Zauderer*s drunk driving adver-

tisement violated the prohibition against handling criminal cases on a con-

-""Interestingly, the Office of Disciplinary Counsel did not base its decision to proceed

in this matter on complaints instituted by persons who had contacted Zauderer as a result
of his advertisement. It did receive complaints, however, from the local counsel for A.H.

Robins Co., the manufacturer of the Dalkon Shield, and from other lawyers. Stewart,

supra note 197, at 64.

^"'Complaint aganst Zauderer, supra note 202, at 2, Count VI. It should be noted

that neither the Board nor the Ohio Supreme Court found a violation based on this

charge.

''"Id. at 2, Count V.

'"Id. at 2, Count VII.

'''Id. at 3, Count VIII. This allegedly violated DR 2-101(B)(15) of the Ohio Code of
Professional Responsibility: "Only the following information may be published or broadcast
. . . (15) [c]ontingent fee rates subject to DR 2-106(C), provided that the statement discloses
whether percentages are computed before or after deduction of court costs and expenses."

This also was alleged to violate DR 2-101(A) based on the theory that leaving this information
out was deceptive.

''Complaint against Zauderer, supra note 202, at 3, Count IX. DR 2-103(A) of the
Ohio Code of Professional Responsibility reads: "A lawyer shall not recommend employ-
ment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who

has not sought his advice regarding employment of a lawyer."

Ohio Code of Professional Responsibility DR 2- 103(A) (1982).
Zauderer violated this provision because the advertisement by implication recommended

his own employment: "Our law firm is presently representing women on such cases . . . ."

See supra note 202.

'•^Complaint against Zauderer, supra note 202, at 3, Count IX. DR 2-104(A) of the
Ohio Code of Professional Responsibility states:

(A) A lawyer who has given unsolicited advice to a layman that he should
obtain counsel or take legal action shall not accept employment resulting

from that advice, except that:



538 INDIANA LAW REVIEW [Vol. 19:497

tingent fee basis. ^" Subsequently, a hearing was held before a three-

member panel of the Board of Commissioners on Grievances and Discipline

of the Ohio Supreme Court. Zauderer contended that Ohio's regulations

regarding the content of attorney advertising were unconstitutional as ap-

pHed to him. The panel rejected these contentions, noting that neither

Bates^^^ nor In re R.M.J.^^^ had forbidden all regulation of lawyer adver-
tising.^'* In addition, the panel found that the state's interests in pro-

hibiting advertising which solicited clients to pursue a particular legal claim

were as substantial as the state's interests in prohibiting in-person solicita-

(1) A lawyer may accept employment by a close friend, relative, former
client (if the advice is germane to the former employment), or one

whom the lawyer reasonably believes to be a client.
(2) A lawyer may accept employment that results from his participation

in activities designed to educate laymen to recognize legal problems,

to make intelligent selection of counsel, or to utilize available legal

services if such activities are conducted or sponsored by any of the

offices or organizations enumerated in DR 3- 103(D)(1) through (5),
to the extent and under the conditions prescribed therein.

(3) A lawyer who is recommended, furnished or paid by a qualified legal
assistance organization enumerated in DR 2- 103(D)(1) through (4) may
represent a member or beneficiary thereof, to the extent and under

the conditions prescribed therein.

(4) Without affecting his right to accept employment, a lawyer may speak
publicly or write for publication on legal topics so long as he does

not emphasize his own professional experience or reputation and does
not undertake to give individual advice.

(5) If success in asserting rights or defenses of his client in ligitation in

the nature of a class action is dependent upon the joinder of others,

a lawyer may accept, but shall not seek, employment from those
contacted for the purpose of obtaining their joinder,

Ohio Code of Professional Responsibility DR 2-104 (1982).
This charge is presumably based upon the statement in the advertisement that the

reader should not "assume it is too late to take legal action against the Shield's man-

ufacturer." See supra note 202.

^"Complaint against Zauderer, supra note 202, at 2, Counts II and III. It was alleged

that he had violated DR 2-101(B)(15) and DR 2-101(A) of the Ohio Code of Professional
Responsibility.

Only the following information may be published or broadcast . . .
(15) Contingent fee rates subject to DR 2- 106(C), provided that the statement

discloses whether percentages are computed before or after deduction of

court costs and expenses.

DR 2-101(A) states:
(A) A lawyer shall not, on behalf of himself, his partner, associate or any

other lawyer affiliated with him or his firm, use, or participate in the use

of, any form of ublic communication containing a false, fraudulent, mis-

leading, deceptive, self-laudatory or unfair statement or claim.

Ohio Code of Professional Responsibility DR 2-101(B)(15); DR 2-101(A) (1982).
-"433 U.S. 350 (1977).

-'M55 U.S. 191 (1982).

''''Zauderer, 105 S. Ct. at 2274.



1986] LAWYER ADVERTISING 539

tion as expressed in Ohralik.^^^ Specifically, the panel concluded that as

to the Dalkon Shield advertisement, Zauderer breached Ohio's prohibi-

tion against the use of illustrations, deceptive advertising, self-

recommendation, and accepting employment resulting from unsolicited ad-

vice."** The panel concluded that the ad was deceptive and misleading
because it failed to disclose a client's potential liability for costs even if

her suit was unsuccessful."' As to the drunken driving advertisement, the

panel concluded that it was deceptive."^ The panel found it deceptive

because the ad stated **[f]ull legal fee refunded if convicted of DRUNK
DRIVING," and a person who pleads guilty to a lesser charge may not
be convicted, but his legal fee would not be refunded."' Thus, the ad

was misleading, and the panel consequently recommended that Zauderer
be publicly reprimanded.

The Board of Commissioners on Grievances and Discipline of the

Supreme Court of Ohio reviewed the decision of the three-member panel

of the Board. The Board adopted the panel's findings in full, but recom-

mended that the sanction of a public reprimand be increased to indefinite
suspension from the practice of law."*

The decision of the Board was then reviewed by the Supreme Court

of Ohio."* It affirmed the findings of the panel and the Board,"* but

reduced the penalty to a public reprimand."^ The court observed that

the Supreme Court has recognized the power of the states to regulate

attorney advertising."" The court then ruled that its Disciplinary Rules

-'Vf/. (citing Ohralik, 436 U.S. 447 (1978)).

-"Id. at 2273.

---Id.

"'Id.

--'Id. at 2274.

--^Office of Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44, 461 N.E.2d 883

(1984).

"'•The Ohio Supreme Court ruled:

As to the Dalkon Shield advertisement we agree with the findings of the

panel and board that respondent violated DR 2-101(B), prohibiting illustrations
in an advertisement; DR 2-104(A), in accepting employment resulting from un-
solicited advice given by him to a non-lawyer; DR 2-101(A), in publishing com-
munications which were misleading; DR 2-101(B)(15), by failing fully to disclose
the terms of the contingent fee arrangement which was intended to be entered

into at the time of publishing the advertisement; and DR 2-103(A), in recom-
mending employment of himself as a private practitioner to a non-lawyer who
had not sought his advice regarding employment of a lawyer.

10 Ohio St. 3d at 47, 461 N.E.2d at 886.

These sections which the Panel and Board found had been violated by the respondent

are constitutional provisions of the Ohio Disciplinary Rules as contained within the Code

of Professional Responsibility.

'-'no Ohio St. 3d at 48-49, 461 N.E.2d at 887.

--•^See In re R.M.J., 455 U.S. 191, 203 (1982), in which the United States Supreme

Court indicated that the states retain some authority to regulate advertising although it



540 INDIANA LAW REVIEW [Vol. 19:497

regarding lawyer advertising complied with those set forth by the Supreme

Court."' Specifically, the court noted that the state's disclosure re-

quirements concerning ads that mention contingent fees are permissible.""

The court reasoned that for purposes of clarity, people reading an adver-

tisement that mentions a contingent fee need to know what the fees are
as well as any additional costs that might be assessed against them."'

The court also thought it reasonable for the state to restrict lawyers from

accepting employment resulting from unsolicited advice."^ The court also
agreed with the panel's conclusion and reasoning that the drunken driving
advertisement was misleading."'

On appeal, the United States Supreme Court, in an opinion by Justice
White, affirmed the decision of the Ohio Supreme Court in part and

reversed it in part."* The Court noted that its approach to commercial

speech is well settled."' According to the Central Hudson test, where com-

is speech protected to some extent by the first amendment of the United States Constitution,

and Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977).
""10 Ohio St. 3d at 48, 461 N.E.2d at 886.

""Id.

"^Id. Zauderer never stated the exact percentage charged in contingent fee cases, nor

did he state in his drunk driving advertisement that the client would be responsible to

pay certain costs of litigation.

The failure to mention the costs does seem somewhat misleading as persons reading

the advertisement might falsely conclude it would cost them nothing to litigate a suit. On
the other hand, this matter could be explained by an attorney to prospective clients at

the first interview. If a person did not wish to proceed after learning this information,

he would be free to drop the matter.

"MO Ohio St. 3d at 48, 461 N.E.2d at 886-87. The Ohio Supreme Court did not

specify any reasons why it thought an attorney should be prohibited from accepting such

employment. If this rule were to be upheld with respect to lawyer advertisements, it would

in effect prohibit the use of any advertisements by attorneys. The Ohio Supreme Court

is attempting through this rule to enforce a total ban on attorney advertising because all

advertisements are intended to promote the services of the advertiser and to result eventually

in the employment of the advertiser. No one would waste money advertising if he did
not expect to generate eventually some additional business as a result of the advertisement.

Because this in effect amounts to a total ban on advertising, it clearly cannot be reconciled

with the United States Supreme Court's prior decisions in this area.

One might also argue that the advertisement did not recommend Zauderer's em-
ployment in any event. See supra notes 202 and 205. The drunk driving advertisement
does not recommend his employment in any way. The Dalkon Shield advertisement merely
states: "Our law firm is presently representing women on such cases .... For free
information call 1-614-444-1113." One could argue that he was merely stating facts, not
recommending that readers employ him.

"MO Ohio St. 3d at 48, 461 N.E.2d at 887.

"^Zauderer v. Office of Disciplinary Counsel, 105 S. Ct. 2265 (1985). Justice Powell

took no part in the consideration or decision of the case.

"'The Court stated:

The States and the Federal Government are free to prevent the dissemination
of commercial speech that is false, deceptive, or misleading, or that proposes

an illegal transaction. Commercial speech that is not false or deceptive, and



1986] LAWYER ADVERTISING 541

mercial speech is neither false nor deceptive, the state must prove that

its restrictions directly advance a substantial government interest."* The
Court divided its analysis of Ohio's advertising regulations into three parts:

prohibition of advertisements that contain legal advice on specific legal

problems, prohibitions on the use of illustrations, and the obligation of

advertising attorneys to disclose the terms of contingent fees in their adver-

tising. The Court held that an attorney may not be disciplined for soliciting
business through advertisements which contain legal advice on specific legal

problems,"^ or for using accurate, nondeceptive illustrations."' The Court
held, however, that the state's requirement that ads which refer to

contingent-fee arrangements contain information regarding a client's

liability for costs was reasonable."'

With respect to Ohio's rules prohibiting self-recommendation and pro-

hibiting the acceptance of employment resulting from unsolicited legal ad-

vice, the Court ruled for Zauderer."" It noted that because Zauderer's

statements about the Dalkon Shield were neither false nor deceptive, Ohio

must estabhsh that ** prohibiting the use of such statements to solicit or

obtain legal business directly advances a substantial governmental in-

terest."^*' The Court rejected three proferred state interests. First, it re-

jected the argument that this ban served the same purposes as a ban on

in-person solicitation previously upheld by the Court in the Ohralik case."^

The Court reasoned that in-person solicitation is a practice rife with

possibilities for overreaching, invasion of privacy, fraud, and undue in-
fluence, whereas, a printed advertisement containing advice about a specific

legal problem does not involve the same pressure on a potential client

for an immediate yes or no answer to the offer of representation."'

Second, the Court disapproved of the argument that because Zauderer's

does not concern unlawful activities, however, may be restricted only in the
service of a substantial government interest, and only through means that directly

advance that interest.

105 S. Ct. at 2275 (citing Friedman v. Rogers, 440 U.S. 1 (1979); Pittsburgh Press Co.

V. Human Relations Comm'n, 413 U.S. 376 (1973); Central Hudson Gas & Electric Corp.
v. Public Service Comm'n, 447 U.S. 557 (1980)).

-''"447 U.S. at 566.

-"105 S. Ct. at 2280.

^""Id. at 2281.

''''Id. at 2283.

-""'/flf. at 2280. White was joined by Brennan and Marshall on this point. Id. at 2284

(Brennan, J., concurring in part and dissenting in part).

^"'M at 2277.

'*'Id. White specifically rejected the application of Ohralik v. Ohio State Bar Ass'n,

436 U.S. 447 (1978), to this set of facts. White quoted from Ohralik: "[IJn-person solicitation

of professional employment by a lawyer does not stand on a par with truthful advertising

about the availability and terms of routine legal services." 105 S. Ct. at 2277 (quoting

Ohralik, 436 U.S. at 455).
-"'105 S. Ct. at 2277.



542 INDIANA LA W REVIEW [Vol. 19:497

advertisement might promote lawsuits, the advertisement should be

banned."'* The Court reasoned that a state cannot interfere with a citizen's

right of access to the courts."' Finally, the state argued that it needed

a prophylactic rule, even if Zauderer's advertisement was harmless, because

advertising by attorneys presents unique regulatory difficulties. The Court,

however, did not answer the question of whether a prophylactic rule is

ever permissible in this area. Instead, it found that the state had failed

to establish that such a rule was necessary in this case to achieve a substan-

tial governmental interest."** The Court noted that it is often difficult to
determine whether advertisements for both legal services and products are
deceptive. Therefore, the Court found no basis for the state's argument

that such advertising by attorneys should be subject to a blanket

prohibition.

With respect to Ohio's rule that prohibited the use of illustrations

in attorney advertising, the Court applied the Central Hudson test and
found that the state had failed to present a substantial state interest which

justified its restriction."^ The Court rejected the state's argument that
the restriction was justified as a means of ensuring that attorneys main-

tain their dignity. The Court stated that this interest was not substantial

enough to justify abridging an attorney's first amendment rights."' The
Court also rejected the state's argument that any possible abuses could

only be combatted through the use of a blanket ban on illustrations since

it would be difficult to prove which illustrations were misleading."' The

Court reasoned that consumers rarely base decisions about legal services

on visual illustrations in advertisements."" Also, because the advertisements

could be policed on a case-by-case basis, the Court concluded that the

prophylactic approach taken by Ohio was invalid."' Thus, Zauderer could

not be disciplined for his use of an accurate and nondeceptive illustration.

Zauderer lost on the issue of the right of Ohio to discipline attorneys

who fail to disclose the terms of any contingent fees mentioned in their
advertising."^ The Court held that an advertiser's rights are adequately

^**Id. at 2278. The Court noted, "[W]e cannot accept the notion that it is always

better for a person to suffer a wrong silently than to redress it by legal action." Id.

(quoting Bates, 433 U.S. at 376).

-''Id.

-'""Id. at 2278-79.

'*^Id. at 2281. White was joined by Brennan and Marshall on this point. Id. at 2284

(Brennan, J., concurring in part and dissenting in part). Justices O'Connor, Burger, and

Rehnquist concurred in the Court's judgment on this point. Id. at 2294 (O'Connor, J.,

concurring in part and dissenting in part). The Court was thus unanimous in its rejection

of Ohio's rule prohibiting the use of illustrations.

'*'Id. at 2280.

^""M at 2281.

^'^Id. at 2282. White was joined by Justices O'Connor, Burger, and Rehnquist on

this point. Id. at 2294 (O'Connor, J., concurring in part and dissenting in part).



1986] LAWYER ADVERTISING 543

protected as long as a state's disclosure requirements are reasonably related

to its interest in preventing consumer deception."^ The Court distinguished

rules that prohibit speech from those that require disclosure. Because first

amendment interests implicated by disclosure requirements are substan-
tially less than those at stake when speech is suppressed, the Court reasoned
that the state's rule should not fail just because the state did not employ

the least restrictive means of regulation available."" Specifically, the Court

found that the advertisement in question that stated if there was no
recovery, no legal fees would be owed would mislead readers into believing
it would cost them nothing to file suit."^ In reality they would still be

liable for the costs of the actions even if they lost. Presumably because

the possibility of deception was so obvious, the state did not have to pre-

sent evidence to support its position that such an advertisement is

deceptive."*

The final issue in this case was whether Zauderer had been denied
procedural due process with respect to his drunk driving advertisement.

Zauderer contended that because the Ohio Supreme Court and the Board

of Commissioners had determined that Zauderer's advertisement was

misleading and deceptive on a completely new theory than that asserted
against him by the Office of Disciplinary Counsel, he had been denied

"'M at 2282. White stated, "[T]he requirement that an attorney advertising his
availability on a contingent-fee basis disclose that clients have to pay costs even if their

lawsuits are unsuccessful (assuming that to be the case) easily passes muster under this

standard." Id. at 2283. White is not saying that the first amendment does not apply to

disclosure requirements. Rather, under certain circumstances, he recognizes that "unjustified

or unduly burdensome disclosure requirements might offend the First Amendment by
chilling protected commercial speech." Id. at 2282.

"'Id. at 2282 n.l4.

-"M at 2283.
-''•The Court stated, "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." Id. at 2283.

White does concede that it is difficult to tell how burdensome the disclosures requested
by the Ohio Supreme Court are in light of the Ohio court's failure to specify precisely

what disclosures were required. Id. at 2283 n.l5. The report of the Board of Bar

Commissioners "at a minimum suggests that an attorney advertising a contingent fee must

disclose that a client may be liable for costs even if the lawsuit is unsuccessful. The report
and the opinion of the Ohio Supreme Court also suggest that the attorney's contingent-

fee rate must be disclosed. Neither requirement seems intrinsically burdensome . . . ." Id.

(citing Office of Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44, 48, 461 N.E.2d

883, 886 (1984)). White admits that the Ohio Supreme Court's opinion regarding precisely
what must be disclosed is vague, and that Ohio's DR 2-101(B)(15) really only mandated
disclosure of contingent fee rates. He then noted that Zauderer's advertisement did not
refer to rates. Therefore, White concluded it might be improper to attempt to disbar an

attorney on the basis of this rule as it would raise "significant due process concerns."

Id. Nonetheless, because only a public reprimand was issued here, he saw no problem

with the application of this rule to Zauderer's advertisement. Id.



544 INDIANA LAW REVIEW [Vol. 19:497

due process. The Court found that because the decision of the Board

of Bar Commissioners had put Zauderer on notice of the charges he had
to answer before the Supreme Court of Ohio, he had been afforded notice

and an opportunity to respond. Thus, there had been no violation of due

process."^

Justice Brennan, who was joined by Justice Marshall, filed a separate
opinion, concurring in part and dissenting in part. The Justices agreed

with the majority that a state may not discipline an attorney for publishing
advertisements that contain truthful and nondeceptive advice about specific

legal problems and accurate illustrations."' The Justices dissented primarily

on two points. First, they stated that Ohio*s vague disclosure requirements

regarding contingent fees were not reasonably related to the state's in-

terest in preventing consumer deception."' Second, they found that Ohio's

punishment of Zauderer violated his due process rights.""

With respect to Ohio's disclosure requirements, Brennan agreed with

the majority that disclosure requirements must be reasonably related to

a state's interest in preventing consumer deception, but only to the extent

that this "reasonable relationship" inquiry is consistent with the Central

Hudson test,"' Therefore, the state must demonstrate that its regulation
directly advances a substantial state interest. Brennan observed that it was

difficult to determine precisely what disclosure requirements the majority

had approved."^ He concluded that the Supreme Court of Ohio had im-
posed three requirements with respect to disclosures: first, if an advertise-
ment refers to contingent fees, it should indicate whether additional costs

might be assessed to the client; second, that an attorney advertising a

contingent fee must specifically express his rates; and third, that an at-

torney must fully disclose the terms of a contingent fee contract in his

advertising."^ Brennan proceeded to analyze these requirements in light

of the first amendment standard set forth above.

"'105 S. Ct. at 2284. Zauderer also contended that he was prejudiced because he

could not present evidence before the Ohio Supreme Court concerning the Board's con-

clusion that drunken driving cases are often plea bargained to a lesser offense. However,

White noted Zauderer probably could not argue that plea bargaining is not common in
such cases. Furthermore, Zauderer never argued before the Ohio Supreme Court that it

was improper for the Board to take judicial notice of such pleas. Id. at 2284 n.l7.

""M at 2284 (Brennan, J., concurring in part and dissenting in part).
""/</. at 2285.

^"^Id.

^'"Id. Brennan agreed that the distinction between suppression and disclosure in the

commercial speech context merits some differences in analysis. Id. at 2285 n.l. "Never-

theless, disclosure requirements must satisfy the basic tenets of commercial-speech doctrine:

they must demonstrably and directly advance substantial state interests, and they may
extend no further than 'reasonably necessary' to serve those interests." Id.

''"Id. at 2286.

""Id. at 2286-88.



1986] LAWYER ADVERTISING 545

With respect to the first point, the Ohio Supreme Court had ruled

that an advertisement mentioning contingent fees should indicate whether

"additional costs . . . might be assessed the client.**"^ Brennan agreed

that because of the public's general unfamiharity with the difference be-

tween fees and costs, a state may require an advertisement to include a
costs disclaimer."' He added a proviso, however, that the disclaimer should
not be broader than is reasonably necessary to prevent the deception."^

Second, the Ohio Supreme Court required that an attorney offering

services on a contingent fee basis must specifically express his rates."'

The majority upheld this requirement provided it is not unduly burden-
some."' Brennan stated that whether such a requirement is burdensome
or not is irrelevant unless the state can demonstrate that its requirement

directly and proportionately furthers a substantial state interest."' Brennan

concluded that Ohio had failed to demonstrate such evidence.

Third, Brennan noted that Ohio had found that Zauderer had acted

unethically by failing to disclose fully the terms of his offer to represent

people on a contingent fee basis."° Brennan concluded that such a re-

quirement compelling the publication of detailed fee information that

would fill more space than the ad itself y^as unduly burdensome and would

chill protected commercial speech."** Brennan also concluded that because

Ohio did not precisely specify what disclosures Zauderer was required to

include in his advertisements, the rule failed to provide Zauderer with

sufficient notice of what he should have included in his advertisements

and therefore violated basic due process and first amendment guarantees."^

Brennan*s second major point in dissent dealt with the issue of pro-

cedural due process. Brennan argued that it was improper for the Board

of Commissioners to find that Zauderer's drunk driving advertisement

-'-'Office of Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44, 48, 461 N.E.2d

883, 886 (1984).

^'•'105 S. Ct. at 2287. (Brennan, J., concurring in part and dissenting in part). See

also In re R.M.J. , 455 U.S. at 203.

^"^Id.

-"MO Ohio St. 3d at 48, 461 N.E.2d at 886.
^'^''105 S. Ct. at 2283 n.l5.

-"^/flf. at 2287. (Brennan, J., concurring in part and dissenting in part).

-™/c^. at 2287-88 (citing Office of Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d.

at 47, 461 N.E.2d at 886) (emphasis in original).

^"/c^. Furthermore, such a requirement might clutter up an advertisement, causing it

to be far less effective. Such information easily can be disclosed to clients on their first

visit to an attorney's office.

"Vc^. at 2289. Brennan agreed that a state may require an advertising attorney to

include a costs disclaimer, but he felt Ohio had not created a clear rule at the time

Zauderer ran his advertisement. Id. Brennan worried that because the Ohio rules are so

vague, they are a trap if attorneys even mention contingent fees. Id. However, White

clearly indicated that a state could not disbar an attorney based upon such advertising

and that Ohio should draft clearer rules. Id. at 2283 n.l5.



546 INDIANA LAW REVIEW [Vol. 19:497

was misleading and deceptive on a completely new theory that had not

been brought up in the original complaint filed against him."' Because

Zauderer was not given fair notice of the precise nature of the charges

against him, and because on appeal the Ohio Supreme Court would be

limited to reviewing whether the findings were against the weight of the

evidence, Brennan concluded that the proceedings violated due process."'*

Justice O'Connor, who was joined by Chief Justice Burger and Justice
Rehnquist, also filed a separate opinion concurring in part and dissenting

in part. Justice O'Connor concurred with the majority's conclusion that

accurate illustrations in lawyer advertising cannot be prohibited, that the

state's disclosure requirements concerning contingent fees should be upheld,

and that Zauderer had not been denied due process."' O'Connor dissented
from the majority's conclusion that Ohio's prohibition of soliciting business

through legal advice in advertisements violated the first amendment. "'^

She concluded for two reasons that the use of unsolicited legal advice

poses enough risk of overreaching to justify its ban."^

First, because consumers are especially susceptible to confusion and

deception when a professional markets his services, the ban is justified."*

Second, an attorney's personal interest in securing new business may color
the advice rendered in an advertisement."' The Justice found that the
Dalkon Shield advertisement presented a risk of overreaching, but to a

lesser degree than that incident to in-person solicitation.^*" This is true

because where the legal advice is phrased in uncertain terms it induces

a client to seek further legal advice in person where in-person solicitation

can occur. ^*' Thus, Justice O'Connor determined that Ohio's prohibition

on soliciting business through legal advice in advertisements should have

been upheld.

V. Implications of Zauderer

The Supreme Court's opinion in Zauderer has clarified various points

concerning lawyer advertising that will have an impact on an attorney's

practice. A central provision of the Code of Professional Responsibility
at issue in Zauderer was DR 2-101(B),"^ which requires that advertisements

-''^Id. at 2292-93 (Brennan, J., concurring in part and dissenting in part).

'''Id. at 2293 (citing In re Ruffalo, 390 U.S. 544, 552 (1968)).

-'Id. at 2294 (O'Connor, J., concurring in part and dissenting in part).

-'*^Id.

'''Id.

'"^Id. Specifically, she stated, "the State has a significant interest in preventing attorneys

from using their professional expertise to overpower the will and judgment of lay people

who have not sought their advice." Id. at 2296.
""Id. at 2294.

''"Id. at 2296.

'''Id.

-"-Model Code of Professional Responsibility DR 2- 101(B) (1979).



1986] LAWYER ADVERTISING 547

be presented in a dignified manner without the use of illustrations and
which provides a ** laundry list" of information that can be published.

Zauderer initigdly had been charged with including information in his adver-

tisements that had not been authorized by the **laundry list*' and with

failing to advertise in a dignified manner.^" Although neither the Board

of Commissioners on Grievances and Discipline nor the Ohio Supreme

Court found Zauderer guilty on these counts, they did find he had failed

to comply with DR 2- 101(B) by including an illustration"'* and by failing
to disclose all the necessary information relating to contingent fees in his

Dalkon Shield advertisement."'

Before considering the Supreme Court's treatment of these specific

points in DR 2- 101(B), the propriety of retaining the rule's "laundry list"
approach to the regulation of attorney advertising will be considered. "•*

^"See supra notes 209-15.

^••^Office of Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44, 47, 461 N.E.2d

883, 885-86.

'''Id.

2«'^The rule states:

In order to facilitate the process of informed selection of a lawyer by potential

consumers of legal services, a lawyer may publish or broadcast, subject to DR
2-103, the following information in print media distributed or over television

or radio brodcast in the geographic area or areas in which the lawyer resides

or maintains offices or in which a significant part of the lawyer's clientele

resides, provided that the information disclosed by the lawyer in such publication

or brodcast complies with DR 2- 101 (A), and is presented in a dignified manner:
(1) Name, including name of law firm and names of professional associates;

addresses and telephone numbers;

(2) One or more fields of law in which the lawyer or law firm practices, a

statement that practice is limited to one or more fields of law, or a

statement that the lawyer or law firm specializes in a particular field of

law practice, to the extent authorized under DR 2-105;
(3) Date and place of birth;

(4) Date and place of admission to the bar of state and federal courts;

(5) Schools attended, with dates of graduation, degrees and other scholastic

distinctions;

(6) Public or quasi-public offices;

(7) Military service;

(8) Legal authorships;

(9) Legal teaching positions;

(10) Memberships, offices, and committee assignments, in bar associations;

(11) Membership and offices in legal fraternities and legal societies;

(12) Technical and professional licenses;

(13) Memberships in scientific, technical and professional associations and so-

cieties;

(14) Foreign language ability;

(15) Names and addresses of bank references;

(16) With their written consent, names of clients regularly represented;

(17) Prepaid or group legal services programs in which the lawyer participates;

(18) Whether credit cards or other credit arrangements are accepted;

(19) Office and telephone answering service hours;



548 INDIANA LA W REVIEW [Vol. 19:497

States vary considerably in the extent to which they have adopted the

precise language used in the American Bar Association's Model Code of

Professional Responsibility — with some states following the Model Code
very closely and other states deviating from the language quite substan-

tially."^ For the most part, Ohio's version of DR 2- 101(B), at issue in
Zauderer, differed very little from the Model Code."' It should be noted

that in place of DR 2-101(B), the American Bar Association's new Model
Rules of Professional Conduct, adopted by the House of Delegates of

the American Bar Association on August 2, 1983, does away with the

"laundry list" approach and essentially replaces it with a false and

misleading standard."' In other words, lawyers may include any infor-
mation in their ads so long as it is not false, fraudulent, or misleading.

In considering the constitutionality of Ohio's version of DR 2- 101(B),
it should be borne in mind that this rule restricts the free flow of infor-

(20) Fee for an initial consultation;

(21) Availability upon request of a written schedule of fees and/or an estimate

of the fee to be charged for specific services;

(22) Contingent fee rates subject to DR 2-106(C), provided that the statement
discloses whether percentages are computed before or after deduction of

costs;

(23) Range of fees for services, provided that the statement discloses that the

specific fee within the range which will be charged will vary depending

upon the particular matter to be handled for each client and the client

is entitled without obligation to an estimate of the fee within the range

likely to be charged, in print size equivalent to the largest print used in

setting forth the fee information;

(24) Hourly rate, provided that the statement discloses that the total fee charged

will depend upon the number of hours which must be devoted to the

particular matter to be handled for each client and the client is entitled

to without obligation an estimate of the fee likely to be charged in print

size at least equivalent ot the largest print used in setting forth the fee

information;

(25) Fixed fees for specific legal services, the description of which would not

be misunderstood or be deceptive, provided that the statement discloses

that the quoted fee will be available only to clients whose matters fall

into the service described and that the client is entitled without obligation

to a specific estimate of the fee likely to be charged in print size at least

equivalent to the largest print used in setting forth the fee information.

Model Code of Professional Responsibility DR 2- 10 1(B) (1979).
^"See Andrews, Lawyer Advertising and the First Amendment, Am. B. Found.

Research J. 967, 986-88 (1981).
^*^See supra note 198 and accompanying text.

^"''See supra note 19. Under a false and deceptive standard, the public would receive

more information than that permitted by the "laundry list."
One could argue that the false and deceptive standard requires more of an enforcement

effort than rules that state exactly what may appear in an advertisement. However, when
weighing the need of the public for more information against the possible extra enforcement
effort that might be needed to police a false and deceptive standard, the need for information
seems to suggest a false and deceptive standard should be the rule.



1986] LAWYER ADVERTISING 549

mation between attorneys and prospective clients in contradiction to the

right of the public to receive such information, a point enunciated in Bates

V. State Bar of Arizona.^^^ Such information assists the public in learning
about the legal system."' When a state Hmits the speech of lawyers to
the categories mentioned in DR 2- 101(B), according to the Central Hudson
test, it must assert a substantial state interest that directly supports the

restriction and is drawn in the least restrictive manner possible."^ A
number of possible state interests could be asserted in defense of such

a regulation. The state has an interest in ensuring that the public receives

adequate and accurate information concerning legal services. However,
this rule unnecessarily restricts the quantity of information available to

the public."^ Alternatively, the rule could be viewed as a way of main-
taining high professional standards. In fact, as the Court enunciated in

BatesJ such a rule is a poor way to deter shoddy work."" It might also

2*'433 U.S. 350, 364 (1977). See also Bolger v. Youngs Drug Products Corp., 463

U.S. 60 (1983); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,

Inc., 425 U.S. 748, 770 (1976).

^'"Bates V. State Bar of Arizona, 433 U.S. 350, 364. The Court recognized the interest

of consumers in learning as much as possible about all types of commercial speech:

The listener's interest is substantial: the consumer's concern for the free flow

of commercial speech often may be far keener than his concern for urgent

political dialogue. Moreover, significant societal interests are served by such

speech. Advertising, though entirely commercial, may often carry information

of import to significant issues of the day. And commercial speech serves to
inform the public of the availability, nature and prices of products and services,

and thus performs an indispensible role in the allocation of resources in a free

enterprise system.

Id. (citing Bigelow v. Virginia, 421 U.S. 809 (1975)).

'"^Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557
(1980).

^''There are less restrictive means of regulation that make certain the public receives

accurate information — such as a false or deceptive standard of regulating advertising.
In her opinion in the Zauderer case. Justice O'Connor noted that the public does

not have to rely upon legal advertising as its exclusive source of information about the

law. "Ohio and other states afford attorneys ample opportunities to inform members of

the public of their legal rights. See, e.g., Ohio DR 2-104(A)(4) (permitting attorneys to
speak and write publicly on legal topics as long as they do not emphasize their own

experience or reputation)." 105 S. Ct. at 2297 (O'Connor, J., concurring in part and

dissenting in part).

-"'See Bates V. State Bar of Arizona, 433 U.S. 350, 378 (1977). "Restraints on

advertising, however, are an ineffective way of deterring shoddy work. An attorney who
is inclined to cut quality will do so regardless of the rule on advertising." Id.

In essence, the state argued that the public should be protected from its lack of

sophistication about legal matters. The Court rejected this argument in Virginia State Bd.

of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). "There

is ... an alternative to this highly paternalistic approach. That alternative is to assume

that this information is not in itself harmful, that people will perceive their own best

interests if only they are well enough informed, and that the best means to that end is

to open the channels of communication rather than to close them . ..." Id. at 770.



550 INDIANA LA W REVIEW [Vol. 19:497

prevent attorneys from promoting litigation. In Bates, however, the Court

rejected the argument that it is improper to advise people via advertising

of their right to sue."' Furthermore, it could be argued that advertising

should be informational and not promotional. The Court, however, has

ruled that commercial speech cannot be regulated merely because it is pro-

motional."* Arguably, DR 2-101 (B) prevents deception, which the state
has a substantial interest in preventing. However, Ohio's rule, by limiting

the type of information that can be advertised, may result in deceptive
advertising nonetheless."' Furthermore, the rule arguably advances the

state's interest in preventing an adverse effect on the professionalism of
attorneys. The Supreme Court, however, rejected in Bates the argument

that the regulation of advertising promotes this goal."* DR 2-101(B)
therefore violates the Central Hudson test because it does not directly
advance any substantial governmental interest.

Further, DR 2- 101(B) fails the second part of the Central Hudson
test because the **laundry list" approach to regulating advertising clearly

is not the least restrictive means of accomplishing any of the above-
mentioned state interests. The states using DR 2- 101(B) could easily adopt
other rules that impinge upon an attorney's free speech in a more limited

manner, as required by In re R.M.J^^'* and Central Hudson. ^^'^ For
example, the false and misleading standard adopted by the American Bar

Association accomplishes the same ends as DR 2- 101(B), but gives at-
torneys greater latitude in designing their advertising.

'"'

As mentioned previously, the Court did not consider the ** laundry
list" aspect of Ohio's DR 2-101(B) in the Zauderer case. At some point
in the future, the Court should reconsider this rule and insist that states

adopt the false and deceptive standard enunciated in the American Bar

Association's Model Code of Professional Conduct. This rule is more

beneficial because it permits attorneys to provide more information to

the public.

Indirectly, of course, the Supreme Court has invalidated Ohio's DR
2- 101(B) because the rule does not specifically permit attorneys to include

""'Although advertising might increase the use of the judicial machinery, we cannot

accept the notion that it is always better for a person to suffer a wrong silently than to

redress it by legal action," 433 U.S. at 376. See supra note 243 and accompanying text.

Justice White in Zauderer specifically ruled an attorney may advise people of their legal
rights in advertising. 105 S. Ct. at 2280.

^"^Bates V. State Bar of Arizona, 433 U.S. 350, 371-72 (1977).

-^^For example, if a rule permits a lawyer to state the areas in which he is available

to practice, such a rule would permit a lawyer to advertise he is available to practice in

an area in which he has no experience.
-"''433 U.S. at 368-69.

-^455 U.S. 191, 206 (1982).
'"•'447 U.S. 557, 571 (1980).

""See supra note 198 and accompanying text.



1986] LAWYER ADVERTISING 551

legal advice in their advertising, as required by Zauderer. However, about

all one can say at this point is that Ohio must add the right to include

legal advice in advertising to the list of other permissible information to

be included in legal advertising.

With respect to the specific violations of DR 2- 101(B) assessed against
Zauderer, the rule limiting illustrations to those of a picture of the adver-

tising lawyer or the scales of justice should next be considered. ^"^

Obviously, one of the goals of an advertising campaign is to catch the
attention of the reader. The reader who skims through a paper will not
consciously notice many of its articles and advertisements. To be worth-
while, the advertisement must cause a few readers to stop and at least

glance at the advertisement. Zauderer advertised both with and without

the illustration of the Dalkon Shield. The advertisement without the il-

lustration produced no response.'"'

Even in the seminal case, Bates v. State Bar of Arizona, the plain-

tiffs had used an illustration of the scales of justice.'"* Likewise, R.M.J,

had used an illustration of the scales of justice.'"' Presumably, a rule

that prohibits the use of illustrations is motivated by a desire that the

advertisements be dignified.'"*^ However, the Supreme Court has rejected
a distaste for advertising as a basis for suppressing it.'"^ Furthermore,

'"^DR 2-101(B) prohibits all illustrations except for a picture of the lawyer or a

portrayal of the scales of justice. Model Code of Professional Responsibility DR 2-
101(B) (1979).

'"'5e^ Brief for Appellant at 14-15, Zauderer v. Office of Disciplinary Counsel, 105

S. Ct. 2265 (1985). In contrast, he received 95 responses to the advertisement with the

illustration. Brief for Appellant at 5. See supra note 204. Presumably, the advertisement

without the illustration did not catch the attention of women reading the newspapers.
The women very possibly had no idea what type of intrauterine device they had been
using. The illustration of the very distinctive I.U.D. in this case obviously caught the

attention of many readers. What is the point in placing an advertisement that no one
reads?

''M33 U.S. at 385. Presumably, Ohio permitted the use of such an illustration because

the Court upheld the right of Bates to place such an advertisement in a newspaper. It

is interesting to note that many of the rules adopted by the states after Bates did not

permit the advertisement in the Bates case. See Andrews, Lawyer Advertising and the

First Amendment, 1981 Am. B. Found. Research J. 967, 971 (1981).
'"'In re R.M.J. , 455 U.S. 191, 207. The Court did not comment on this illustration

but upheld his right to place the advertisement thus implicitly permitting the illustration.

Id. (See Appendix G.).

"*Ohio Code of Professional Responsibility DR 2- 101(B) reads in part: "The infor-
mation disclosed by the lawyer in such publication or broadcast shall ... be presented

in a dignified manner . . . ." Ohio Code of Professional Responsibility DR 2- 101(B)
(1982). See supra note 198.

''"See Bates v. State Bar of Arizona, 433 U.S. at 368, where the Court discusses the

argument that advertising allegedly diminishes the dignity of the profession. The Court

in Bates noted that the bar on advertising originated as a rule of etiquette, and that the

view that lawyers are "above" trade has become an anachronism. Id. at 371-72. See also

Carey v. Population Services Int'l, 431 U.S. 678, 701 (1977), where the Court remarked



552 INDIANA LAW REVIEW [Vol. 19:497

there is no substantial governmental interest advanced by a rule that per-

mits some types of illustrations but prohibits all others. The Ohio Supreme

Court never indicated what governmental interest was advanced by such

a rule, but instead merely indicated that illustrations in general may be
misleading.'"' This is particularly important because this rule clearly in-

terferes with the right of the public to receive information to assist

in selecting a lawyer. This rule fails to comport with the requirement

articulated in In re R.M.J, that speech must be regulated "with care and

in a manner no more extensive than reasonably necessary to further

substantial interests."'®'

Clearly, the Supreme Court was correct in striking down Ohio's
blanket ban on the use of illustrations in advertisements. So long as the

illustration used by an attorney is accurate and not deceptive, an attorney
will be able to use it. It is doubtful, however, that extensive use of

illustrations will appear in advertising. The Dalkon Shield's unique design

made it particularly useful in the advertising to alert readers to the pro-
duct in question. Illustrations in general, however, probably will not be

all that useful for attorneys to include in their advertising.

Zauderer had been charged with violating DR 2- 101(B) by offering
to represent women in Dalkon Shield cases on a contingency basis without
first disclosing how the fees would be computed."" No real substantial
governmental interest was asserted to support this rule,'" as required by

Central Hudson. ^^^ Even so, the Court ruled against Zauderer because

that offensiveness is not a justification for suppressing expression.

Justice White in Zauderer acknowledged that this was probably the reason for the

rule prohibiting the use of other illustrations. 105 S. Ct. at 2280. White also observed,

"[AJlthough the State undoubtedly has a substantial interest in ensuring that the attorneys

behave with dignity and decorum in the courtroom, 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." Id.
'"''Office of Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44, 47, 461 N.E.2d

883, 886 (1984). Cf. In re R.M.J., 455 U.S. 191, 202, 205-06 (where the Court indicated

that the state must offer evidence that the challenged advertising is in fact deceptive or

misleading).

"M55 U.S. at 207.

^*"See supra notes 198, 231 and accompanying text. DR 2-101(B) permits the publication
of such information. "Only the following information may be published or broadcast
. . . [cjontingent fee rates subject to DR 2- 106(C), provided that the statement discloses
whether percentages are computed before or after deduction of court costs and expenses."

Zauderer failed to disclose this information in his advertisement.

'"The Ohio Supreme Court merely noted with respect to this issue: "Also, requirements

relative to the content of the advertising concerning legal fees would be permissible under

the United States Supreme Court rulings cited. Certainly for purposes of clarity to those

reading a lawyer advertisement which refers to contingent fees, the requirement should

be that such fees be specifically expressed, as well as any additional costs that might be

assessed the client." Office of Disciplinary Counsel v. Zauderer, 10 Ohio St. 3d 44, 48,

461 N.E.2d 883, 886 (1984).
"H47 U.S. at 566.



1986] LAWYER ADVERTISING 553

it felt that the Central Hudson test should not be applied to an offer
to represent women on a contingent fee basis.'" Instead, the Court created
a new rule — that the disclosure requirements must be **reasonably related
to the State's interest in preventing deception of consumers.""* While

everyone on the Court agreed that the advertisement in question could

be misleading, Brennan and Marshall in their separate opinion correctly

pointed out that it was not at all clear what rule had been approved by

the Court.''* There is no doubt that states must clearly specify what must

be disclosed in an advertisement with respect to the costs of litigation

and the rates an attorney charges. Any rule that is not drafted clearly
probably will not receive the approval of the Supreme Court.''* States
will need to check their disclosure requirements to make certain they are
clearly stated in order to give notice of what must be disclosed.

Zauderer had also been charged with violating DR 2- 103(A), which
prohibits a lawyer from recommending employment of himself to one who
has not sought his advice regarding the employment of a lawyer,"^ and

with violating DR 2- 104(A), which prohibits a lawyer from accepting
employment after giving unsolicited advice to an individual to obtain

counsel or to take legal action.'" The Ohio disciplinary authorities felt

that his Dalkon Shield advertisement constituted solicitation by recom-

mending that readers employ him. This is perhaps the most absurd point

with respect to this case, for it is the purpose of all advertising to generate

business for the advertiser.

It is in the best interest of the public to receive as much information
about lawyers as possible.'" A rule that prohibits lawyers from taking
cases that result from an advertisement would discourage any lawyer from

ever placing an advertisement. This would consequently decrease the

amount of information provided to the public about lawyers.'^"

'"See supra note 252.

"M05 S. Ct. at 2282.
'"/</. at 2286 (Brennan, J., concurring in part and dissenting in part).

'"•See supra note 256.

"'See supra note 213.

""See supra note 214.

"*Ohio Code of Professional Responsibility Ethical Consideration 2-1 states: "The

need of members of the public for legal services is met only if they recognize their legal

problem, appreciate the importance of seeking assistance, and are able to obtain the

services of acceptable legal counsel. Hence, important functions of the legal profession

are to educate laymen to recognize their legal problems, to facilitate the process of

intelligent selection of lawyers, and to assist in making legal services fully available."

Ohio Code of Professional Responsibility EC 2-1 (1982).
Canon 2 of the American Bar Association Model Code of Professional Responsibility

states: "A lawyer should assist the legal profession in fulfilling its duty to make legal
counsel available." Model Code of Professional Responsibility Canon 2 (1979).

"•The public desperately needs information concerning lawyers. One study has indicated

that the vast majority of the people have no way of knowing which lawyers are competent



554 INDIANA LA W REVIEW [Vol. 19:497

The Court was correct in striking Ohio's prohibition on soHciting

business through advice in advertisements. The Ohio authorities confused

the distinction between advertising and solicitation, a distinction previously

recognized by the Supreme Court."' Furthermore, the state failed to ad-

vance any substantial state interest to support its position. Clearly, the

need of the public for such information is very great and would require

that the state assert a very substantial interest to merit banning such

advertising.

In sum, the Supreme Court created a good rule that will enable at-

torneys to include more information concerning legal matters in their adver-
tising. This will be beneficial to the public because many people do not
understand the law and very often do not realize when they have a right
to bring suit. The decision in the Zauderer case on this point is likely

to have the greatest impact on legal advertising of all the issues discussed

in this case. It is quite likely that attorneys will include such material

in their advertisements in the future.

VI. Conclusion

The United States Supreme Court, starting with the decision in Bates

V. State Bar of Arizona in 1977, began to open the doors to legal adver-

tising. It has since that time ruled in three other relevant cases: In re

Primus, Ohralik v. Ohio State Bar Association, and In re R.M.J. Its most
recent pronouncement in this area, Zauderer v. Office of Disciplinary

Counsely has further clarified various issues regarding attorney advertis-

ing."^

to handle their legal problems. B. Curran, The Legal Needs of the Public: The Final
Report of a National Survey 228 (1977). Perhaps even more shocking is the fact that

many attorneys do not know how to locate an attorney with expertise in a certain field.
Stern, Dabbling is Dangerous, J. Mo. B. 121, 122 (March, 1985).

At one time many people believed that an attorney obtained business by developing

a reputation in the community. The Supreme Court questioned the value of a reputation

in securing new business in Bates v. State Bar of Arizona. "Although the system may
have worked when the typical lawyer practiced in a small homogeneous community in

which ascertaining reputational information was easy for a consumer, commentators have

seriously questioned its current efficacy." 433 U.S. at 374 n.30.

One might question in any event whether a personal reputation or personal contacts
with lawyers and the business community is more helpful in securing new business. It is

far more likely that people will hire an attorney whom they know, as opposed to basing
their hiring decision strictly on a lawyer's reputation.

"'Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460, 462 n.20 (1978). The Court

noted in this case that while advertising "simply provides information and leaves the

recipient free to act upon it or not, in-person solicitation may exert pressure and often
demands an immediate response, without providing an opportunity for comparison or

reflection." Id. at 457.

'^^Along with this line of cases has come an increase in the incidence of advertising
by lawyers. The percentage of lawyers who have tried advertising has grown from 3<7o in
1978 to 24% in 1985. Recent increases are especially noticeable. The percentage of lawyers



1986] LAWYER ADVERT/SING 555

Bates established that attorneys unquestionably have a right to adver-

tise, and the public has a right to receive this information. Primus and

Ohralik, however, established that attorneys may not directly solicit clients;
In re R.M.J, moved the law a giant leap forward by adopting the Central
Hudson test for legal advertising. That test states that commercial speech
concerning a lawful activity and not false, deceptive, or misleading is pro-

tected by the first amendment. If a state attempts to regulate such speech,

the regulation must directly advance a substantial state interest, and the

regulation must be no more extensive than is necessary.

Justice White, in Zauderer v. Office of Disciplinary Counsel, applied

the Central Hudson test in arriving at the conclusion that an attorney
cannot be disciplined for soliciting legal business through advertising that

contains truthful and nondeceptive information and advice regarding the

legal rights of potential clients. He also relied upon the Central Hudson
test in striking down Ohio's rules prohibiting the use of illustrations in
advertising. Justice White, however, rejected the application of the Cen-

tral Hudson test with respect to Ohio's requirement that certain informa-
tion be disclosed in advertising mentioning contingent fees. Instead, the

Court held that an advertiser's rights are adequately protected as long

as the state's disclosure requirements are reasonably related to its interest

in preventing consumer deception.

Perhaps it is regrettable that the Court did not continue to adhere

to the Central Hudson test on the disclosure issue. At least adhering to
the same rule adds some consistency to the law and makes it more predic-

table. On the other hand, the Court certainly did not clarify exactly what
disclosure requirements it was upholding. Nevertheless, it is clear that if

states wish to require that certain matters be disclosed in advertising, the

rules must be stated in such a manner that attorneys are put on notice
as to what information must be disclosed in the advertising.

On the whole, the Court has made it clear that it wants to encourage
dissemination of information in legal advertising. It is likely that we will

see further clarifications regarding the ability of lawyers to advertise as

courts continue to address this timely issue.

who have advertised has almost doubled since 1983. Lawyer Advertising Is on the Rise,
ABA Journal, Apr., 1986, at 44, col. 1. The use of television advertising has been growing,
particularly among multi-office legal clinics and personal injury firms. Expenditures on televi-
sion advertising for legal services totaled $38,261,600 for 1985, a 36% increase over 1984.
Lawyers Spending More on TV Ads, Nat'l L.J., Apr. 7, 1986, at 32, col. 3-4.



556 INDIANA LA W REVIEW [Vol. 19:497

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* Divorce or lc(al ftcp«r«tion-uncontt»t*<l

(both spouses sifn papers]

SI 75 00 plus S20 00 cojrt filir.g fee

* Preparation of all court papers and instruc-
tions on how to do your own simple
uncontested divorce

S 100 00

* Adoption -uncontested severance proceeding

$225 00 plus dOprOKin.Mei) UO 00 publica-
tion cost

* Bankruptcy-non-business. no contested pro>
ceedings

Individual

$250 00 plus $55 00 court filmg fee

Wife and Husband
$300 00 plus $110 00 court filmg fi>e

** Change of Name

S9S GO plus $20 00 court filing fee

Information regarding other types of cases

furnished on request

Legal Clinic of Bates & O'Steen
(17 North 3rd street

Phoenii. Arixona IS004
Telephone ((02] 2S2 Mil



1986] LA WYER ADVERTISING 557

Appendix B

VIHEN ITOMSIO UMEMNG THEIR mCES,
MOSTUWYERS HANDSARE TIED.

Wlian It oomes to lowering the prices they
ahuge, most lawyers' hands are tied.
Their rent is high. Their volume Is low. And

tStelr overhead Is almost out of sight. Which
means thatwhenyou retain a regular attorney,
onewayor another you're going to pay the price.

It isnt fair. But since law firms traditionally
charge by time and expenses, it's little wonder
they're so expensive.
Are yoa pajrlog for yonr law firm's mistakes?
Simply put, we believe that one reason some

lawyers fees are so great, Is because their over-
head Is so high.
We're smart enough to know that there's no

way to keep your prices In check, when your
expenses are way out of line. So before we ever
opened our doors, we decided to open our eyes.
We took a look at the extra cost of downtown

rents. We looked at the extravagance ofclient en-
tertainment. Andafter wesaw all the fancy desks

and the overstuffed chairs, we knew how we
could trim the rates. And trim our rates we did.
Competent work at competitive pricaa.
When you come to Marcus and Tepper, the first

thing you'll And Is a competent lawyer The
second Is competitive prices.
In most cases, fixed fees determined by the

task at hand Not by the hands of a clock. At an
average saving which is quite substantial.
lb be specific, our fee for an uncontested

Divorce is $275 An Adoption Is $150 And a
simple WOl Is a mere $30 (Exclusive of normal
coiirt costs, of course ) And if you're buying a
house, the closing cost is $100. regardless of the
cost of the home.

In short, anything a. regular-priced lawyer
does. Marcus and Tepper wUl do. And we'll do It
for a good deal less.
Why tome lawyer* are fit to b* tied.

If there's one thing some lawyers resent more

than otir reasonable rates. It's the way we pro-
mote them in t\fil page ads. What's more they'd
like to put an end to this practice.
At Marcus and Tepper, we strongly disagree.
We believe in aggressively advertising to gen-

erate a high volume ofwork. And staying open
evenings and Saturdays to see It gets done.
And the more business we tend to do, the lower

the price we can afford to charge. VThlch makes
It more eqiiltable for all.
After all, justice may be blind In theeyes ofthe

law But It's expensive In the hands ofa lawyer.

Marcus & Ibpper Attorneys At Law
8326 W. Burleigh, MUwaukee, Wis. 449-9700

Hours: Mon. and Thurs.. 6:30 until 8 PM;
Tuss., Wed., and Fri., 8:30 to 6. Saturday tU Koon.



558 INDIANA LA W REVIEW [Vol. 19:497

Appendix C

HOWTOHifiEAUIMYER
VrmiOUrGETTING TAKEN PORARIDE.

WKy »th»i iawye«<s wsll h-tta Sl«»s ad.

ri^^hSi' p«r

«fHa* w« jiwatSs.

Maitys ^Teppertesraep At Law
fhti main *>» dt> «}»«• le»» w» sikaifs*



1986] LA WYER ADVERTISING 559

Appendix D

PonchtuM,
Mil Cf9imi PtOOl0llltf

H§if9§$in0ntt

. . . G«t Out of D«bt or

Consolidata and . .

.

GET A FRESH

Thru A
N*w F«d*ral Law

ContactI
HARVEY W. BURGESS

LAW FIRM
Ch«>1«««on 74r'4ai0
(3431 Rivaf* Ava >
Cnl—itll 2B4 2006
(MITOraooSl.)

ATTACHMENT A

/Columbia, SC. Thursday. July 16. 1981 9<B

STOP FORECLOSURE
wMMOf KVMMMfltt

CofwoAdal* or Q«l Out Of 0«bt.
Cdi:

Harv«y W. BurgoM
1417 <kmn St. Columbte, 8.C.

InColiMibtaCil: In CiMrlMton Call:
264-200S 571-3^2

Appendix E

DID YOU USE
THIS lUD?

TK« Daikon SKUM lnt«rut*rin« Dwvka i» on*9«d to
Kov* cou»«d »«<iow* p«lvk infection* r*«uUing in
hotpttaiizotioo* tubol damo9*, infertility, ond
hy»>fcio»f»»». h i« olao oll»9>d to Kovo cov*«d wn-
plonn«d pr«9nencl*a ooding in obortiona. mlacor-

rteg»a. ••ptk obortiona. tvboi or octopk prognon-

ctoa. and fvli-torm do4lvofWa. H you o< o fri«r«d Sovo
hod o aimllor oxportonco do rtot oaaurrv* It la too lot*
to toko lo^i octlon o9alnat tKo ShtoWi monu-

focturor Our low firm la proaontty roproaont-
ing won>«n on aw<h coa«a Tho coaoa or*

Kondlod on o contl^ftnt foo ktoaia of tho omount
rocovorod If ttt*f* o rv} rocovory rto logo! fooa
oro owod by oor citonta.

For ffoo informotlon coll 1-614-444-11 13

The Low Firm of

Philip Q. Zauderer & Associates
52 West Whittier StrMt
Columbus, Ohio 43206



560 INDIANA LA W REVIEW [Vol. 19:497

Appendix F

DRUNK DRIVING

Full legal fee refunded if convicted of DRUNK
DRIVING.

Expert witness (chemist) fees must be paid.

Call (614)444-1113.

Phillip Q. Zauderer & Associates.
Attorneys at Law

52 West Whittier. Columbus, Ohio 43206

Appendix G

4irA
4MV0mQV

iM.f
120 SOUTH CtNTMAt AVtMOt.

irrLouit iCLAVTQNi. Missounr^sidi

Adrn.rted ta Prjciicf tiftoff-

THE UNITED STATES SUPHEME COUHT
Licehicd in: MISSOURI and ILLINOIS

Corporate^ .
"Partnership'
• Ta« '

Securities Bonds
~ Pension

Profit / Shannq

•Trials & Appeals
•Criminal
•Real Estate
•Wills, estate
planning, probate-

• Bankruptcy

Personal Injury

Ditforce. Separation
Custody. Adoption
• Workman's
Compensaticri

•Contracts