Bishop v. COMMITTEE ON PROFESSIONAL ETHICS, ETC.

• Decision Date: 20 August 1981
• Docket Number: Civ. No. 81-47-D.
• Citation: 521 F. Supp. 1219
• Parties: Gary T. BISHOP, Plaintiff, v. The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, and its Chairman, James E. Cooney, in his official capacity, Defendants.
• Court: U.S. District Court — Southern District of Iowa

521 F. Supp. 1219

Gary T. BISHOP, Plaintiff, v. The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, and its Chairman, James E. Cooney, in his official capacity, Defendants.

Civ. No. 81-47-D.

United States District Court, S. D. Iowa, Central Division.

August 20, 1981.

Gordon E. Allen, Leslie Babich & Mark W. Bennett, Allen, Babich & Bennett, Des Moines, Iowa, for plaintiff.

Lee Gaudineer & Carlton G. Salmons, Hedo M. Zacherle, Des Moines, Iowa, for defendants.

MEMORANDUM OPINION, JUDGMENT, INJUNCTION AND ORDERS

VIETOR, District Judge.

Plaintiff is a lawyer licensed by and practicing law in the state of Iowa. On January 22, 1981, he filed this action under 42 U.S.C. § 1983, with jurisdiction predicated on 28 U.S.C. § 1343, challenging the constitutionality of The Disciplinary Rules of the Iowa Code of Professional Responsibility for Lawyers limiting the means and content of lawyer advertising. Plaintiff seeks declaratory and injunctive relief against the defendants, the Committee on Professional Ethics and Conduct of the Iowa State Bar Association, and its chairman, James E. Cooney, in his official capacity. Trial was held on June 11, 1981.

FACTS

Until recent times, advertising by lawyers setting forth fees and other information was prohibited in Iowa, as it was elsewhere in the United States.¹ Then, in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the United States Supreme Court held that the First Amendment to the Constitution of the United States, which is applicable to the states through the Fourteenth Amendment, precludes the state from prohibiting a lawyer from publishing in a newspaper his truthful advertisement concerning the availability and fees of routine legal services offered by him.

In the wake of the Bates decision, the Iowa Supreme Court amended the Iowa Code of Professional Responsibility for Lawyers to permit lawyers to advertise their services and fees within the regulatory limits of the Code as amended.²

Iowa Supreme Court Rule 118.2 provides: The members of the Committee on Professional Ethics and Conduct of the Iowa State Bar Association and their successors, as confirmed by order of this court are appointed commissioners of this court to initiate or receive, and process complaints against any attorney licensed to practice law in this state for alleged violations of the Iowa Code of Professional Responsibility for Lawyers and laws of the United States or the state of Iowa. Upon completion of any such investigation the committee on professional ethics and conduct shall either dismiss the complaint made, or admonish or reprimand the complained against attorney, or file and prosecute the complaint before the grievance commission or any division thereof.

The defendant Committee on Professional Ethics and Conduct of the Iowa State Bar Association intends, by appropriate actions, to enforce the Disciplinary Rules of the Iowa Code of Professional Responsibility for Lawyers governing advertising by lawyers.

Plaintiff graduated from Drake University Law School in December of 1979 and was admitted to practice in the Iowa courts in June of 1980. He is also admitted to practice in this court and in the United States District Court for the Northern District of Iowa. He is a member of the American Bar Association, the Iowa Bar Association and two county bar associations in Iowa. He maintains his principal office in Davenport and another office in Muscatine, both in the Southern District of Iowa. At present, another lawyer, who is black, is associated with him.

In plaintiff's law practice, he primarily handles routine matters such as uncontested dissolutions of marriage, uncontested bankruptcies, adoptions, simple wills, real estate closings, title opinions, etc. His office is organized to provide these routine legal services, which constitute about 80 to 85% of his practice.

Plaintiff is not an Iowa native and testified that he has no contacts in Iowa and that he therefore needs to advertise in order to attract clients. Since beginning his practice, he has advertised in newspapers of general circulation and in the Muscatine yellow pages. He testified that about 80% of his clients come to his office directly as a result of advertising. His advertising has been within the limits allowed by the Disciplinary Rules of the Iowa Code of Professional Conduct for Lawyers, but he wishes to employ additional means of advertising and use additional advertising content that are prohibited by the Disciplinary Rules. It is his contention that he has a First Amendment commercial speech right to do so, and that the restrictions of the Disciplinary Rules infringe on this right.

GOVERNING LAW

Plaintiff's specific challenges to the Disciplinary Rules can best be examined after first considering the governing principles of law.

The first state regulation prohibiting price advertising by members of a profession to be held violative of the First Amendment was Virginia's law prohibiting pharmacists from advertising prescription drug prices. Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The Court expressly reserved the question of whether advertising bans on other professions also offended the First Amendment, stating:

We stress that we have considered in this case the regulation of commercial advertising by pharmacists. Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising.

Id. at 773 n.25, 96 S.Ct. at 1831 n.25.

The reserved question in respect to lawyer advertising was answered the following year by the Court's decision in Bates v. State Bar of Arizona, supra. However, the holding in Bates was limited. The Court concluded:

The constitutional issue in this case is only whether the State may prevent the publication in a newspaper of appellants' truthful advertisement concerning the availability and terms of routine legal services. We rule simply that the flow of such information may not be restrained, and we therefore hold the present application of the disciplinary rule against appellants to be violative of the First Amendment. Emphasis supplied.

Bates v. State Bar of Arizona, supra, 433 U.S. at 384, 97 S.Ct. at 2709. Most of the questions presented in the instant case were not answered by Bates.

Bates is a "commercial speech" case. Commercial speech is "expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557, 561, 100 S.Ct. 2313, 2349, 65 L.Ed.2d 341 (1980). Justice Powell, writing the opinion of the Court in Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, supra, 447 U.S. at 561-64, 100 S.Ct. at 2349-50, articulates the rationale as well as the scope and limitations of the First Amendment's protection of commercial speech:

The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Virginia Pharmacy Board, 425 U.S. at 761-762 96 S.Ct. at 1825. 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. "People will perceive their own best interests if only they are well enough informed, and ... the best means to that end is to open the channels of communication, rather than to close them...." Id., at 770 96 S.Ct. at 1829; see Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977). Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Bates v. State Bar of Arizona, supra, 433 U.S. at 374, 97 S.Ct. at 2704.

Nevertheless, our decisions have recognized "the `commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456 98 S.Ct. 1912, 1918, 56 L.Ed.2d 44 (1978); see Bates v. State Bar of Arizona, supra, 433 U.S. at 381 97 S.Ct. at 2707-08; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L.Rev. 1, 38-39 (1979). The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. 436 U.S., at 456, 457 98 S.Ct. at 1918, 1919. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.

The First Amendment's concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978). Consequently, there can be no constitutional 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, Friedman v. Rogers, supra, 440 U.S. 1 at 13, 15-16 99 S.Ct. 887, 896, 897, 59 L.Ed.2d 100; Ohralik v. Ohio State Bar Assn., supra 436 U.S. at 464-465 98 S.Ct. at 1922-23, or commercial speech

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