Ex parte Howell
| Decision Date | 31 March 1986 |
| Parties | Ex parte Allen W. HOWELL. (In re Allen W. HOWELL v. ALABAMA STATE BAR). 83-776. |
| Court | Alabama Supreme Court |
Allen W. Howell, Montgomery, pro se.
William H. Morrow, Jr., Gen. Counsel, for respondent.
David S. Shrager, Philadelphia, Pa., Michael S. Starr, and Judith Barnett, Washington, D.C., for amicus curiae Association of Trial Lawyers of America.
PETITION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE, PETITION TO DECLARE UNCONSTITUTIONAL DISCIPLINARY RULES 2-102(A)(7) * AND 2-106(a)(1) * OF THE ALABAMA CODE OF PROFESSIONAL RESPONSIBILITY OR, IN THE ALTERNATIVE, PETITION FOR THE COURT TO AMEND DISCIPLINARY RULES 2-102(A)(7) AND 2-106(A)(1) OF THE ALABAMA CODE OF PROFESSIONAL RESPONSIBILITY
Allen Howell, a Montgomery lawyer, seeks a writ of mandamus from this Court to the Alabama State Bar to require it to allow him to include in newspaper advertisements information which is not allowed by the Code of Professional Responsibility of the Alabama State Bar. Howell contends that the provisions of the Code of Professional Responsibility which prohibit him from representing that he has been certified as a "civil trial advocate" by the National Board of Trial Advocacy (NBTA) violate the First Amendment protections of commercial speech as extended in the United States Supreme Court's opinions of Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), and In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982).
Canon 2 of the Code of Professional Responsibility of the Alabama State Bar, as amended October 25, 1985, contains the following provisions:
Before placing advertisements in local newspapers, Howell sought an ethics opinion from the Bar Association as to whether he could advertise the fact that he was certified as a civil trial advocate by the NBTA. He proposed to indicate his certification in a "dignified" manner, using type which would be consistent in size with the other type in the advertisement. In concluding that such a representation would violate the Code of Professional Responsibility, the Bar Association reasoned that, since the State Bar does not have any procedures for certifying lawyers as specialists, it would be inappropriate for an attorney to hold himself out as a specialist except in the historically accepted fields of admiralty and trademark and patent law.
In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Supreme Court extended the First Amendment protection of commercial speech to lawyers' advertisements by striking down the states' right to subject lawyer advertising to a "blanket suppression." That opinion established the right of attorneys to advertise the fees they charge for certain routine legal services. It did not address the "peculiar problems" associated with advertising related to the quality of legal services, and it expressly recognized that advertising by professionals poses special risks of deception because of the perceived lack of sophistication on the part of the general public concerning legal services. 433 U.S. at 366, 97 S.Ct. at 2700.
The Court explained its position on lawyer advertising in In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). The lawyer's advertisement in that case had listed the areas of his practice in terms other than those provided for by Missouri's rules governing lawyer advertising. For instance, the lawyer advertised that he practiced "personal injury" and "real estate" law instead of "tort" law and "property" law as was provided for in the rules. The lawyer was also charged with failing to include a disclaimer of expertise; with sending announcements to persons other than "lawyers, clients, former clients, personal friends and relatives;" and with listing the courts and states which had admitted him to practice. The lawyer challenged all of the prohibitions but did not challenge the validity of the disclaimer requirement. The Court ruled that restricting the permissible designations which the lawyer could use to describe his practice to those designated by the rule was an invalid restriction of his First Amendment rights. It concluded that the state could not enforce the rule in the absence of a showing either that the representations which the lawyer used were misleading or that a substantial state interest was promoted by the restriction. As to the prohibition against listing the jurisdictions in which the lawyer was admitted to practice, the Court ruled that the representations could not be subjected to a blanket restriction simply because they were potentially misleading. Finally, the Court struck down the prohibition against mailing announcements to persons other than "lawyers, clients, former clients, personal friends and relatives" because it considered the regulation to be more extensive than necessary to serve the governmental interest which the state sought to further by the regulation.
Based on our reading of Bates, R.M.J., and other Supreme Court opinions concerning the regulation of commercial speech, it appears to us that the state's power to regulate lawyers' advertising may be summarized as follows:
(1) Advertising which is false, deceptive, or misleading may be prohibited entirely.
(2) Advertising which is presented in a way that is not deceptive, but is nonetheless potentially misleading, cannot be subject to a blanket prohibition. In those cases the state may require disclaimers or explanations or impose whatever other restrictions are necessary to prevent deception.
(3) Advertising which is neither inherently nor potentially misleading may be regulated only if there is some substantial state interest involved. In that instance the state may promulgate regulations which are narrowly drawn so that they limit free speech only to the extent that the regulations further the state's substantial interests.
See Bates, supra; R.M.J., supra; Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); Friedman v. Rogers, 440 U.S. 1 (1979); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).
The issue in this case is whether Alabama's blanket prohibition against lawyers' holding themselves out as specialists violates their constitutional guarantees of free speech. The rationale for the Bar Association's position is that it prohibits lawyers from holding themselves out as specialists...
To continue reading
Request your trial
-
Peel v. Attorney Registration and Disciplinary Commission of Illinois
...expertise with regard to trial advocacy in excess of the level of expertise required for admission to the bar generally." Ex parte Howell, 487 So.2d 848, 851 (1986). II Petitioner practices law in Edwardsville, Illinois. He was licensed to practice in Illinois in 1968, in Arizona in 1979, a......
-
Norris v. Turner
...very much like Pavlov's dog predictably reacts to certain stimuli. Proof positive that this is not the case comes from Ex Parte Howell, 487 So.2d 848 (Ala.1986), decided on March 31, 1986, by a unanimous court. In Howell the Supreme Court of Alabama clearly demonstrates that it has a mind o......
-
Peel, In re
...that a blanket prohibition on an attorney's claiming "certified civil trial specialist" violates the first amendment. (See Ex parte Howell (Ala.1986), 487 So.2d 848; In re Johnson (Minn.1983), 341 N.W.2d 282.) The courts in Howell and Johnson were confronted with issues similar to those in ......