Committee on Professional Ethics and Conduct of Iowa State Bar Ass'n v. Humphrey, 69088

• Decision Date: 13 November 1985
• Docket Number: No. 69088,69088
• Parties: COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Plaintiff, v. Mark A. HUMPHREY, Fredd J. Haas, d/b/a Humphrey and Haas, Defendants.
• Court: Iowa Supreme Court

Page 643

377 N.W.2d 643

54 USLW 2282

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, Plaintiff, v. Mark A. HUMPHREY, Fredd J. Haas, d/b/a Humphrey and Haas, Defendants.

No. 69088.

Supreme Court of Iowa.

Nov. 13, 1985.

Nick Critelli and Frank A. Comito, Des Moines, for plaintiff.

David H. Remes of Covington & Burling, Washington, D.C., and Mark W. Bennett of Babich, Bennett & Nickerson, Des Moines, for defendants.

Considered en banc.

HARRIS, Justice.

After we filed our decision in this matter, Committee on Professional Ethics v Humphrey, 355 N.W.2d 565 (Iowa 1984), defendants took an appeal to the United States Supreme Court. Certiorari on the appeal was pending until after that Court filed its opinion in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. ----, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). Thereafter, the United States Supreme Court vacated our judgment in this case and remanded the matter to us for further consideration in light of Zauderer.

In compliance with this mandate we invited the parties to submit briefs discussing "the effect, if any, of the Zauderer decision on this case." The matter was submitted to this court, sitting en banc, upon further oral arguments. The factual background, the issues presented, and the authorities prior to Zauderer were set out in our prior opinion and need not be again detailed here. Our present task is only to search for any impact by Zauderer which might lead to a different result. We find nothing in the Zauderer holding at variance with our prior decision. After further consideration, we again order that a writ issue restraining defendants from continuing to place the television advertisements.

Zauderer was an Ohio lawyer who first violated his state's professional rules by placing an advertisement in a local paper. It stated he represented drunk drivers and that his "[f]ull fee would be refunded if the person charged were convicted." Zauderer ran another ad in 36 Ohio newspapers which pictured a line drawing of a Dalkon Shield intrauterine device accompanied by the question, "DID YOU USE THIS IUD?" The advertisement then detailed various afflictions the device was alleged to have caused and stated Zauderer's firm was bringing suit for women with those complaints and invited others to join. The ad then stated: "The cases are handled on a contingent fee basis of the amount received. If there is no recovery, no legal fees are owed by our clients."

Zauderer was reprimanded for the advertisements by the Ohio Supreme Court. See 10 Ohio St.3d 44, 461 N.E.2d 883 (1984). On appeal to the United States Supreme Court that Court held: "insofar as the reprimand was based on [Zauderer's] use of an illustration in his [second] advertisement ... and and his offer of legal advice in his advertisement ... the judgment is reversed." 471 U.S. at ----, 105 S.Ct. at 2284, 85 L.Ed.2d at 675.

I. Defendants think the Zauderer decision presages an end to our authority to regulate electronic advertising by Iowa lawyers. They point to the Court's discussion in addressing Ohio's prohibition of (1) overreaching and (2) blanket prohibitions. ¹

A. Overreaching.

The Court first considered whether Zauderer's advertisements amounted to impermissible self-recommendation and whether he wrongfully accepted employment resulting from unsolicited legal advice. The Court found the Dalkon Shield advertisement was "neither false nor deceptive: in fact, it was entirely accurate." 471 U.S. at ----, 105 S.Ct. at 2276, 85 L.Ed.2d at 665. The Court also observed the advertisement made no suggestion that Zauderer had special expertise in Dalkon Shield litigation. As a result Ohio had the burden of showing that prohibiting the ads advanced a substantial governmental interest. The Court rejected the state's argument that its interest in preventing overreaching, invasion of privacy, and undue influence justified the discipline imposed on Zauderer. See Ohralik v. Ohio State Bar Association, 436 U.S. 447, 462, 98 S.Ct. 1912, 1921, 56 L.Ed.2d 444, 457 (1978) (because above interests were substantial, Court upheld ban on in-person solicitation).

The Court emphasized that the prohibition of face-to-face solicitation upheld in Ohralik did not extend to "truthful advertising about the availability and terms of routine legal services." 471 U.S. at ----, 105 S.Ct. at 2277, 85 L.Ed.2d at 666 (quoting Ohralik, 436 U.S. at 455, 98 S.Ct. at 1918, 56 L.Ed. at 453). The Court noted:

The concerns that moved the Court in Ohralik are not present here. Although some sensitive souls may have found appellant's advertisement in poor taste, it can hardly be said to have invaded the privacy of those who read it. More significantly, appellant's advertisement--and print advertisement generally--poses much less risk of overreaching or undue influence.

471 U.S. at ----, 105 S.Ct. at 2277, 85 L.Ed.2d at 666.

B. Blanket prohibitions.

The Court also struck down Ohio's blanket prohibition of the use of illustrations in lawyer advertising:

[T]he use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech: restrictions on the use of visual media in advertising must survive strict scrutiny under the Central Hudson test.

Id. at ----, 105 S.Ct. at 2280, 85 L.Ed.2d at 670. The Court further noted that Zauderer's illustration depicting a Dalkon Shield was not false or misleading and therefore Ohio again bore the burden of showing a substantial governmental interest to justify the prohibition. The Court rejected Ohio's argument that a blanket restriction on illustrations was necessary to ensure the public would not be misled or confused by lawyer advertising. The Court pointed to the state's lack of a record showing that the rule was necessary to avoid these risks. The Court said:

... because it is probably rare that decisions regarding consumption of legal services are based on a consumer's assumption about qualities of the product that can be represented visually, illustrations in lawyer's advertisements will probably be less likely to lend themselves to material representations than illustrations in other forms of advertising.

Id. at ----, 105 S.Ct. at 2281, 85 L.Ed.2d at 671. Thus, the Court was "not persuaded" that the state's blanket prohibition was constitutional and instead suggested that the use of illustrations in lawyer advertising would need to be policed on a case-by-case basis. Id.

We cannot believe these points, or anything said by the Court in Zauderer, portend what defendants insist.

II. Perhaps the strongest basis for concluding the Zauderer rationale has no impact on electronic media advertisements is that we have the Supreme Court's word for it. In our prior opinion in this case, 355 N.W.2d at 569, we mentioned our reliance on language in Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810, 836 (1977), which acknowledged the "special problems" inherent in electronic broadcasts which warrant "special consideration." We took this exclusion seriously and at face value because we emphatically agree that "special problems" do exist in the field of electronic advertising. It was because of them that we, and those who helped us, went to considerable effort to consider and draft our electronic advertising rule. If we misapprehended the language just quoted, if there are in fact no special problems in this area which warrant a special rule, then we have squandered those efforts.

We however believe our understanding was borne out in the Zauderer opinion. The majority opinion in Zauderer strictly adheres to the exclusion of electronic advertising by carefully omitting it from its sweep. Concluding the discussion of whether Zauderer unlawfully solicited legal business is this summary of the holding:

An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and non-deceptive information and advice regarding the legal rights of potential clients.

Id., 471 U.S. at ----, 105 S.Ct. at 2280, 85 L.Ed. at 670 (emphasis added). Moreover, in discussing whether Zauderer's advertisement constituted unlawful solicitation and self-recommendation, the majority noted that "appellant's advertisement--and print advertisement generally--poses much less risk of overreaching or undue influence." Id. at ----, 105 S.Ct. at 2277, 85 L.Ed.2d at 666. (Emphasis added).

The dissenting opinion concurred in the majority's judgment concerning the use of illustrations, noting that "[a]t least in the context of print media the task of monitoring illustrations in attorney advertisements is not so unmanageable as to justify Ohio's blanket ban." Id. at ----, 105 S.Ct. at 2294, 85 L.Ed.2d at 686-87. (Emphasis added).

In a footnote to the foregoing statement is this unchallenged observation:

Like the majority, I express no view as to whether this is also the case for broadcast media. As the court observed in Bates v. State Bar of Arizona, ... "the special problems of advertising on the electronic broadcast media will warrant special consideration."

We continue to believe the "special problems" recognized by the United States Supreme Court exist in the field of electronic advertising. These problems warrant a special rule to regulate lawyer advertising in the electronic media.

III. Defendants cite the Zauderer holding that "self recommendation" could not be prohibited so long as the advertisement was not false or misleading or unless the state could show a substantial governmental interest in disallowing it. They also point to Zauderer's disapproval of Ohio's "blanket ban" on the use of illustrations in printed lawyer...