Grievance Committee for Hartford-New Britain Judicial Dist. v. Trantolo

• Decision Date: 03 January 1984
• Docket Number: HARTFORD-NEW
• Court: Connecticut Supreme Court
• Parties: GRIEVANCE COMMITTEE FOR theBRITAIN JUDICIAL DISTRICT v. Joseph J. TRANTOLO, Jr., et al.

Page 228

470 A.2d 228

192 Conn. 15

GRIEVANCE COMMITTEE FOR the HARTFORD-NEW BRITAIN JUDICIAL DISTRICT v. Joseph J. TRANTOLO, Jr., et al.

Supreme Court of Connecticut.

Argued Oct. 5, 1983.

Decided Jan. 3, 1984.

Maxwell Heiman, Bristol, with whom, on brief, was William J. Tracy, Jr., Bristol, for appellants (defendants).

Arnold M. Schwolsky, Asst. State's Atty., with whom were Philip R. Dunn, Grievance Committee Counsel, West Hartford, and, on brief, John M. Bailey, State's Atty., for appellee (plaintiff).

Before SPEZIALE, C.J., and PETERS, PARSKEY, GRILLO and MENT, JJ.

SPEZIALE, Chief Justice.

The defendants, Joseph Trantolo and Vincent Trantolo, are members of the bar authorized to practice law in the state of Connecticut. They have appealed from the trial court's judgment reprimanding them for violating Disciplinary Rule 2-101 of the Code of Professional Responsibility (hereinafter DR 2-101). Because we hold that the defendants' actions are not prohibited by the Code of Professional Responsibility, we find error.

The defendants operated several law offices in the state under the name of "The Connecticut Law Clinic of Trantolo and Trantolo." In September, 1978, the defendants launched an advertisement campaign involving four commercials, ¹ which were broadcast by a Hartford area television station. On January 16, 1981, the plaintiff ² filed a substituted complaint in the Superior Court for the judicial district of Hartford-New Britain against the defendants, alleging that the four commercials violated DR 2-101. ³ The complaint alleged that DR 2-101 prohibits attorneys from advertising their services on television and, in the alternative, that these advertisements were prohibited because "they contained a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement [or] claim and they were presented in an extravagant format and in an undignified manner," also in violation of DR 2-101. The complaint requested that the court order the defendants to show cause why they should not be "disbarred or otherwise disciplined" for the alleged violations. The defendants responded by denying that the commercials violated DR 2-101 and by claiming in a special defense that the advertisements were protected speech under the first amendment to the United States constitution and article first, § 4 of the Connecticut constitution.

The trial court rendered judgment against the defendants on April 22, 1981, and reprimanded them for the violation. The trial court ruled that DR 2-101 does not permit televised advertising by attorneys and that the advertisements were not constitutionally protected.

In their appeal the defendants claim that the trial court erred in holding that DR 2-101 prohibits televised advertisements and that the advertisements could not be considered constitutionally protected commercial speech. We agree.

We begin by noting that the Code of Professional Responsibility, as adopted by the judges of the Superior Court, ⁴ neither explicitly prohibits nor explicitly authorizes the advertising of legal services through the electronic media. The plaintiff contends, however, that the evolution of DR 2-101 into its present form demonstrates that the Superior Court judges clearly intended to restrict lawyer advertising to the various print media. The defendants argue that the rule intends no such limitation.

Before 1977, the Connecticut Code of Professional Responsibility, DR 2-101, essentially followed the provisions of the American Bar Association's (hereinafter ABA) Model Rule. Subsection (A) prohibited "any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients." The rule went on to define a "public communication" as including "communication by means of television, radio, motion picture, newspaper, magazine, or book." Connecticut Code of Professional Responsibility DR 2-101(A) (1976); ABA Model Code of Professional Responsibility DR 2-101(A) (1976). Subsection (B) stated that "[a] lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity." Connecticut Code of Professional Responsibility DR 2-101(B) (1976); ABA Model Code of Professional Responsibility DR 2-101(B) (1976). In effect, the code prohibited any form of advertisement of legal services. In 1977, the United States Supreme Court decided the case of Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810, reh. denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). In Bates the court considered a challenge to Arizona's DR 2-101(B), which was identical to the Connecticut rule, on grounds that the rule violated the first amendment. The court struck down the rule as an unconstitutional abridgement of free expression, holding that although a state may impose some restrictions on lawyer advertising, it may not impose a blanket suppression of such speech. Bates v. State Bar of Arizona, supra, 433 U.S. 383, 97 S.Ct. 2708-2709.

In 1978, the judges of the Superior Court responded to Bates by amending DR 2-101 to its present form. Instead of prohibiting all advertising, the rule now specifically authorizes advertising in "printed publications" and identifies a variety of data concerning types of services offered, location, financial arrangements, and biographical information that may be published. DR 2-101(B). It prohibits an attorney only from making a "false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim." DR 2-101(A). Although the ABA Model Code revision after Bates specifically authorizes advertisements through electronic media, the Connecticut Code neither explicitly authorizes nor explicitly prohibits television or radio advertisements. The plaintiff argues, and the trial court ruled, that the Superior Court judges' authorization of published advertisements, and the accompanying guidelines, demonstrate that the judges intended to continue the ban on electronic media advertising.

The rules of statutory construction apply with equal force to Practice Book rules. State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981). "Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction. Holmquist v. Manson, 168 Conn. 389, 393, 362 A.2d 971 (1975); Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36 (1967); State v. Springer, 149 Conn. 244, 248, 178 A.2d 525 (1962)." Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 73, 411 A.2d 28 (1979). If a statute or rule is ambiguous, however, we construe it with due regard for the authors' purpose and the circumstances surrounding its enactment or adoption. Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978); City Savings Bank v. Lawler, 163 Conn. 149, 157, 302 A.2d 252 (1972). Because DR 2-101 does not address the issue of electronic advertising, it is ambiguous and must be construed to determine its true meaning.

We are persuaded that the rule does not intend a blanket prohibition on advertising through electronic media. Given that the current version of DR 2-101 was adopted in direct response to Bates, it is obvious that the Superior Court judges intended to formulate a rule that would carry out the mandate of Bates. Although the United States Supreme Court did not address specifically the propriety of electronic advertising in the Bates decision, the reasoning of the court's opinion clearly indicates that a complete ban on such advertising is repugnant to the freedom of speech guarantees embraced by both the United States and Connecticut constitutions. ⁵ Such a ban, therefore, was not intended by the judges of the Superior Court in adopting DR 2-101.

The constitutional protection for commercial speech was unequivocally established for the first time in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). There the court struck down a state statute barring pharmacists from advertising the prices of prescription drugs. It ruled that commercial speech, defined as communication designed to further the speaker's economic interests, merits limited first amendment protection and may not be prohibited absent a showing of compelling reasons. The court noted that society's "strong interest in the free flow of commercial information" required first amendment protection for commercial speech. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, 764, 96 S.Ct. 1827. "So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable." Id., 765, 96 S.Ct. 1827.

From there the United States Supreme Court went on to strike down Arizona's total ban on all lawyer advertising in Bates on the grounds that such a ban inhibited the free flow of commercial information thereby thwarting both the bar's obligation to make legal services available to all who need them and the consumer's ability to select intelligently an attorney. Bates v. State Bar of Arizona, supra, 433 U.S. 377, 97 S.Ct. 2705-2706 (citing ABA Model Code of Professional Responsibility, Ethical Consideration 2-1 [1976].

The United States Supreme Court has made clear, however, that the state is not powerless to regulate commercial speech when the interests of its citizens so require. Central Hudson Gas & Electric Corporation v. Public Service Commission of New York,...