Petition of Felmeister & Isaacs

• Decision Date: 10 December 1986
• Citation: 518 A.2d 188,104 N.J. 515
• Parties: , 55 USLW 2345 In the Matter of the Petition of FELMEISTER & ISAACS.
• Court: New Jersey Supreme Court

Page 515

104 N.J. 515

518 A.2d 188, 55 USLW 2345

In the Matter of the Petition of FELMEISTER & ISAACS.

Supreme Court of New Jersey.

Argued Oct. 22, 1984.

Decided Dec. 10, 1986.

David B. Rubin, Piscataway, for appellant, Felmeister & Isaacs (Rubin, Rubin & Malgran, attorneys).

Susan L. Reisner, Deputy Atty. Gen., for respondent, State of New Jersey (Irwin I. Kimmelman, Atty. Gen., attorney; Andrea M. Silkowitz, Deputy Atty. Gen., of counsel).

Thomas R. Curtin, Kinnelon, for amicus curiae, New Jersey State Bar Ass'n.

The opinion of the Court was delivered by

WILENTZ, C.J.

The petition in this matter attacks the constitutionality of this Court's most recently adopted regulation of attorney advertising prohibiting "the use of drawings, animations, dramatization, music or lyrics" and requiring that "[a]ll advertisements ... be presented in a dignified manner." The regulation, adopted in 1984, and now found in our Rules of Professional Conduct (RPC) 7.2(a), provides:

Subject to the requirements of RPC 7.1 [prohibiting false or misleading advertising], a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through mailed written communication. All advertisements shall be presented in a dignified manner without the use of drawings, animations, dramatization, music or lyrics.

We conclude that the public interest would be better served by a revised rule requiring that all attorney advertising be predominantly informational, ¹ and limiting the present prohibition on the use of "drawings, animations, dramatization, music or lyrics" to television advertising. The requirement of presentation "in a dignified manner" would be eliminated, but advertisements relying in any way on the shock or amusement value of absurd portrayals wholly irrelevant to the selection of counsel would be prohibited. The unchallenged prohibition against false or misleading advertising would, of course, continue. The new rule, set forth as an appendix to this opinion, will take effect on January 1, 1987. ²

Our action is predicated on both policy and federal constitutional ³ grounds. The record before us has persuaded us that the total prohibition against "drawings ..." etc., is unwise; furthermore, at least as applied to print advertising, it is unconstitutional. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). We remain concerned, however, with the potential adverse impact of such techniques and especially in television advertising; the recent dismissal by the United States Supreme Court of an attack on similarly broad restrictions on attorney television advertising suggests the constitutionality of these restrictions. See Humphrey v. Committee on Professional Ethics & Conduct, --- U.S. ----, 106 S.Ct. 1626, 90 L.Ed.2d 174 (1986) (mem.), dismissing appeal for want of a substantial federal question from 377 N.W.2d 643 (Iowa 1985); Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975).

We believe that attorney advertising without any restrictions whatsoever might seriously damage important public interests, but that excessive restriction might harm other public interests equally important. The goal, as we view it, is to strike the proper balance, one that results in the largest net gain for the public. The effort to do so, however, though guided by logic necessarily suffers from inexperience; the modern era of attorney advertising, which commenced with Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), is less than a decade old. ⁴ That effort is therefore undertaken with an open mind and a willingness to change as we learn more, as we learn, perhaps, of a better balance.

We believe this conclusion, namely, that today's formulation is tentative and subject to change based on future experience, is as important as the formulation itself. As noted later, we will reconsider the rule after we receive a report on its implementation.

We conclude further that the need to develop expertise, to administer the new rule with some flexibility, to formulate subsidiary rules and regulations, if they seem desirable, to keep the bar and the public informed, to evaluate the impact of our regulations and, if appropriate, to suggest change requires an agency to perform all of these functions, appointed by this Court and integrated into our disciplinary structure. We require this agency to report to us no later than January 1, 1988, concerning the implementation of today's regulation.

I.

For the current generation of lawyers, most of whom have spent the bulk of their careers practicing under a strict prohibition against attorney advertising, it is perhaps easy to forget that that prohibition enjoyed a relatively brief reign in American legal history. Although the English bar's historic disdain for self-promotion took root in this country, many nineteenth century American lawyers advertised their services. See H. Drinker, Legal Ethics 213 (1953); Attanasio, "Lawyer Advertising in England and the United States," 32 Am.J.Comp.L. 493 502-03 (1984). As late as 1903 the editors of the New Jersey Law Journal, commenting on the increase in the publication of legal cards in newspapers, confessed "our inability to see wherein it is not wholly proper." Editorial Note, 26 N.J.L.J. 35 (Feb.1903).

A leading commentator of the time was in accord, see G. Warvelle, Essays in Legal Ethics 60-61 (1902), but as the influence of the organized bar grew, demands for greater professionalism increased and attitudes toward attorney advertising changed. In 1908, the American Bar Association adopted the Canons of Professional Responsibility. Canon 27 condemned as "unprofessional" solicitation of business by advertising.

The Canons of Professional Responsibility, including Canon 27, were incorporated into the law of this state with our adoption of the rules governing the courts of New Jersey in 1948. Our belief in the wisdom of the prohibition against attorney advertising was firm. Attorney advertising, we declared, "would not be in the public interest. The least capable lawyers would be apt to announce the most extravagant claims and then resort to the worst means to make them good." In re Braun, 61 N.J. 119, 122, 293 A.2d 186 (1972); see also In re Rothman, 12 N.J. 528, 542, 97 A.2d 621 (1953) ("If competitive advertising among lawyers were permitted, the conscientious ethical practitioner would be inescapably at the mercy of the braggart.").

In 1971 we replaced the Canons with the Code of Professional Responsibility. The advertising ban continued in DR 2-101(A), (B), until, six years later, the United States Supreme Court handed down its decision in Bates. Following that decision, we amended our disciplinary rules to allow advertising, in print only, of fees charged for routine services. See 103 N.J.L.J. 121 (Feb. 3, 1979).

In In re Professional Ethics Advisory Comm. Opinion 475, 89 N.J. 74, 444 A.2d 1092 app. dism., sub nom. Jacoby & Meyers v. Supreme Court of New Jersey, 459 U.S. 962, 103 S.Ct. 285, 74 L.Ed.2d 272 (1982), the national law firm Jacoby & Meyers challenged our rule prohibiting use of a firm name in this state unless all named members are or were admitted to the New Jersey bar. In considering this challenge, we noted the connection between that issue and our prohibition against television advertising: if Jacoby & Meyers' firm name could be used in New Jersey, the firm would obtain, indirectly but undeniably, an advantage over its New Jersey rivals arising out of its advertising in the New York television market. Id. at 83, 444 A.2d 1092. We therefore referred both the ban on television advertising (DR 2-101(D)) along with the firm name restriction to a special committee for study and recommendations. Id. at 79, 444 A.2d 1092. The responsibility of that committee, the Supreme Court Committee on Attorney Advertising, was thereafter expanded to include a study of all of the rules concerning lawyer advertising, including printed advertisements and mailings.

That Committee's report (published as a supplement in the New Jersey Law Journal of May 5, 1983), in addition to recommending repeal of the ban on radio and television advertising, took the position that the only restriction on attorney advertising should be that it not be false or misleading. Report of the Supreme Court Comm. on Attorney Advertising, reprinted in Supplement, N.J.L.J., May 5, 1983, at 3. A minority of the Committee concluded that, in addition to truthfulness, all attorney advertising should be dignified and that music, animations, dramatizations, etc., should be prohibited. Id. at 16-18. ⁵

We agreed with the Attorney Advertising Committee's recommendation to repeal the radio and television ban. We accepted the Committee's minority report, however, with respect to adopting a dignity requirement and banning drawings, animations, dramatizations, music or lyrics. We amended our disciplinary rules to reflect these recommendations. See N.J.L.J., Jan. 26, 1984, at 15.

Shortly after our adoption of the new advertising standards, which we later incorporated into our Rules of Professional Conduct, ⁶ petitioner filed an action in federal district court challenging the constitutionality of the restrictions at issue in this case. Felmeister et al. v. Office of Attorney Ethics, Civil No. 84-568 (D.N.J. filed Feb. 9, 1984). Upon being advised that our Court would entertain a direct petition to the same effect, that court abstained from further proceedings pending our review. On March 20, 1984, petitioner filed the instant action directly with this Court, ⁷ and we thereafter remanded the matter to the trial court for the purpose of developing a fuller record.

The parties before the trial court on that remand were petitioner, the Attorney General (acting as proponent of RPC 7.2(a)), and the New Jersey...