455 U.S. 191 (1981), In re R.M.J.

Citation:455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64
Party Name:In re R.M.J.
Case Date:January 25, 1982
Court:United States Supreme Court
 
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Page 191

455 U.S. 191 (1981)

102 S.Ct. 929, 71 L.Ed.2d 64

In re R.M.J.

United States Supreme Court

Jan. 25, 1982

APPEAL FROM THE SUPREME COURT OF MISSOURI

Syllabus

Rule 4 of the Missouri Supreme Court, regulating advertising by lawyers, states that a lawyer may include 10 categories of information in a published advertisement: name, address and telephone number; areas of practice; date and place of birth; schools attended; foreign language ability; office hours; fee for an initial consultation; availability of a schedule of fees; credit arrangements; and the fixed fee to be charged for certain "routine" legal services. Although the Rule does not state explicitly that these 10 categories of information are the only information that will be permitted, that is the interpretation given the Rule by the State Supreme Court and appellee Advisory Committee, which is charged with its enforcement. An addendum to the Rule specifies two ways in which areas of practice may be listed in an advertisement, under one of which the lawyer may use one or more of a list of 23 areas of practice, but may not deviate from the precise wording stated in the Rule to describe these areas. In addition, the Rule permits a lawyer to send professional announcement cards announcing a change of address or firm name, or similar matters, but only to "lawyers, clients, former clients, personal friends, and relatives." An information was filed in the Missouri Supreme Court by appellee Advisory Committee, charging appellant, a practicing lawyer in St. Louis, Mo., with violations of Rule 4. The information charged that appellant published advertisements which listed areas of practice in language other than that specified in the Rule and which listed the courts in which appellant was admitted to practice although this information was not included among the 10 categories of information authorized by the Rule. In addition, the information charged that appellant had mailed announcement cards to persons other than those permitted by the Rule. Appellant claimed that each of the restrictions upon advertising was unconstitutional under the First and Fourteenth Amendments, but the Missouri Supreme Court upheld the constitutionality of Rule 4 and issued a private reprimand.

Held: None of the restrictions in question upon appellant's First Amendment rights can be sustained in the circumstances of this case. Pp. 199-207.

(a) Although the States retain the ability to regulate commercial speech, such as lawyer advertising that is inherently misleading or that has proved to be misleading in practice, the First and Fourteenth

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Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests. Pp. 199-204.

(b) Because the listing published by appellant -- e.g., "real estate" instead of "property law" as specified by Rule 4, and "contracts" and "securities," which were not included in the Rule's listing -- has not been shown to be misleading, and appellee suggests no substantial interest promoted by the restriction, the portion of Rule 4 specifying the areas of practice that may be listed is an invalid restriction upon [102 S.Ct. 932] speech as applied to appellant's advertisements. P. 205.

(c) Nor has appellee identified any substantial interest in prohibiting a lawyer from identifying the jurisdictions in which he is licensed to practice. Such information is not misleading on its face. That appellant was licensed to practice in both Illinois and Missouri is factual and highly relevant information, particularly in light of the geography of the region in which he practices. While listing the relatively uninformative fact that he is a member of the United States Supreme Court Bar could be misleading, there was no finding to this effect by the Missouri Supreme Court, there is nothing in the record to indicate it was misleading, and the Rule does not specifically identify it as potentially misleading. Pp. 205-206.

(d) With respect to the restriction on announcement cards, while mailings may be more difficult to supervise, there is no indication in the record that an inability to supervise is the reason the State restricts the potential audience of the cards. Nor is it clear that an absolute prohibition is the only solution, and there is no indication of a failed effort to proceed along a less restrictive path. P. 206.

609 S.W.2d 411, reversed.

POWELL, J., delivered the opinion for a unanimous Court.

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POWELL, J., lead opinion

JUSTICE POWELL delivered the opinion of the Court.

The Court's decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), required a reexamination of long-held perceptions as to "advertising" by lawyers. This appeal presents the question whether certain aspects of the revised ethical rules of the Supreme Court of Missouri regulating lawyer advertising conform to the requirements of Bates.

I

As with many of the States, until the decision in Bates, Missouri placed an absolute prohibition on advertising by lawyers.1 After the Court's invalidation of just such a prohibition in Bates, the Committee on Professional Ethics and Responsibility of the Supreme Court of Missouri revised that court's Rule 4 regulating lawyer advertising. The Committee sought to "strike a midpoint between prohibition and unlimited advertising,"2 and the revised regulation of advertising, adopted with slight modification by the State Supreme Court, represents a compromise. Lawyer advertising is permitted, but it is restricted to certain categories of information, and in some instances, to certain specified language.

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Thus, part B of DR 2-101 of the Rule states that a lawyer may "publish . . . in newspapers, periodicals and the yellow pages of telephone directories" 10 categories of information: name, address and telephone number; areas of practice; date and place of birth; schools attended; foreign language ability; office hours; fee for an initial consultation; availability of a schedule of fees; credit arrangements; and the fixed fee to be charged for certain specified "routine" legal services.3 Although the Rule does not state explicitly that these 10 categories of information or the 3 indicated forms of printed advertisement are the only information and the only means of advertising that will be permitted,4 that is the interpretation given the Rule by the State Supreme Court and the Advisory Committee5 charged with its enforcement.

In addition to these guidelines, and under authority of the Rule, the Advisory Committee has issued an addendum to the Rule providing that, if the lawyer chooses to list areas of

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practice in his advertisement, he must do so in one of two prescribed ways. He may list one of three general descriptive terms specified in the Rule -- "General Civil Practice," "General Criminal Practice," or "General Civil and Criminal Practice." Alternatively, he may use one or more of a list of 23 areas of practice, including, for example, "Tort Law," "Family Law," and "Probate and Trust Law." He may not list both a general term and specific subheadings, nor may he deviate from the precise wording stated in the Rule. He may not indicate that his practice is "limited" to the listed areas, and he must include a particular disclaimer of certification of expertise following any listing of specific areas of practice.6

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[102 S.Ct. 934] Finally, one further aspect of the Rule is relevant in this case. DR 2-102 of Rule 4 regulates the use of professional announcement cards. It permits a lawyer or firm to mail a dignified "brief professional announcement card stating new or changed associates or addresses, change of firm name, or similar matters." The Rule, however, does not permit a general mailing; the announcement cards may be sent only to "lawyers, clients, former clients, personal friends, and relatives."7 Mo.Rev.Stat., Sup.Ct. Rule 4, DR 102(A)(2) (1978) (Index Vol.).

II

Appellant graduated from law school in 1973, and was admitted to the Missouri and Illinois Bars in the same year. After a short stint with the Securities and Exchange Commission in Washington, D.C., appellant moved to St. Louis, Mo., in April, 1977, and began practice as a sole practitioner. As a means of announcing the opening of his office, he mailed professional announcement cards to a selected list of addressees. In order to reach a wider audience, he placed several advertisements in local newspapers and in the yellow pages of the local telephone directory.

The advertisements at issue in this litigation appeared in January, February, and August, 1978, and included information

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that was not expressly permitted by Rule 4. They included the information that appellant was licensed in Missouri and Illinois. They contained, in large capital letters, a statement that appellant was "Admitted to Practice Before THE UNITED STATES SUPREME COURT." And they included a listing of areas of practice that deviated from the language prescribed by the Advisory Committee -- e.g., "personal injury" and "real estate" instead of "tort law" and "property law" -- and that included several areas of law without analogue in the list of areas prepared by the Advisory Committee -- e.g., "contract," "zoning & land use," "communication," "pension & profit sharing plans."8 See n. 6, supra. In addition, and with the exception of the advertisement appearing in August, 1978, appellant failed to include the required disclaimer of certification of expertise after the listing of areas of practice.

On November 19, 1979, the Advisory Committee filed an information in the Supreme Court of Missouri charging appellant

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with unprofessional conduct. The information charged appellant with...

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