Marcus, Matter of, 80-259-D

• Citation: 107 Wis.2d 560,320 N.W.2d 806
• Decision Date: 02 June 1982
• Docket Number: No. 80-259-D,80-259-D
• Parties: In the Matter of the Disciplinary Proceedings Against Jack L. MARCUS and Jerome A. Tepper, Attorneys at Law.
• Court: United States State Supreme Court of Wisconsin

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320 N.W.2d 806 107 Wis.2d 560 In the Matter of the Disciplinary Proceedings Against Jack
L. MARCUS and Jerome A. Tepper, Attorneys at Law. No. 80-259-D. Supreme Court of Wisconsin. Argued April 27, 1982.
Decided June 2, 1982.

[107 Wis.2d 561] Robert H. Bichler, Racine, for Board of Attorneys Professional responsibility.

David A. Saichek, Milwaukee, argued, for Jack Marcus; Theodore B. Hertel, Jr., and

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Saichek & Hertel, S. C., Milwaukee, on brief.

Walter F. Kelly, Milwaukee, argued, for Jerome Tepper; Robert E. Sutton, Milwaukee, on brief.

DAY, Justice.

Attorney disciplinary proceeding; complaint dismissed.

This is an appeal by the Board of Attorneys Professional Responsibility (hereinafter Board) ¹ from an order of the referee dismissing the complaints of professional misconduct filed against respondents Jack L. Marcus and Jerome A. Tepper (hereinafter respondents). ² The [107 Wis.2d 562] referee found that certain advertisements published on behalf of respondents did not create an overall impression that was false, misleading or deceptive and that the Board did not establish that any of the specific statements in the advertisements were false, misleading or deceptive and so dismissed the complaint on its merits. We affirm.

The first issue in this case is the allocation of the burden of proof when an attorney is charged with professional misconduct for publishing an advertisement which is allegedly "false, misleading or deceptive" in violation of the Code of Professional Responsibility. Respondents argue that the Board is required to establish that the ads in question were false, misleading or deceptive, while the Board urges that the burden is upon the attorneys who placed the ads to prove their veracity. We hold that the Board must bear the burden of proving that the ads are false, misleading or deceptive.

The second question is, were the ads "false, misleading deceptive." The Board urges that they were, based on the contents of the ads, the proof submitted at hearing and from the court's knowledge of the practice of law. We agree with the referee that there is no showing that the ads were violative of the Code.

In 1978, respondents established a law firm under the name of Marcus and Tepper. Mr. Marcus is a 1967 graduate of Marquette University Law School who had not practiced law since his graduation. He was the principal investor in the firm and was in charge of advertising and finances. Mr. Tepper, a 1966 graduate of [107 Wis.2d 563] Marquette University Law School, who had been engaged in the active practice of law since his graduation, was responsible for the actual provision of legal services. The firm hired two recent law school graduates who worked under the supervision of Mr. Tepper. Linda Rothman, a graduate of Marquette University Law School, had no prior experience as an attorney but had served an internship in the Milwaukee County Corporation Office, where she had done supervised trial work, and had clerked for a Milwaukee law firm. Her primary responsibilities were client consultation and divorces. She worked under the supervision of Mr. Tepper, as did Jane Newby, a recent graduate of the University of Wisconsin Law School. Ms. Newby's

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primary responsibilities were in the areas of client counselling, preparation of wills and probating estates.

The firm attempted to develop a volume practice serving middle class clients. This was to be accomplished through the use of advertising and fixed fees. A fee schedule was established which set fixed fees for a number of legal matters, including adoption, bankruptcy, name change, uncontested divorce, real estate closing, will preparation and traffic offenses. For legal matters for which no fixed fee had been set, the firm would set a fee based upon the time which it estimated that the work would require, calculated at a rate of fifty dollars per hour. The firm bore the risk of underestimating the time required to perform the service and would not exceed the fee which it had set. The firm would also handle personal injury cases for a thirty percent contingency fee.

The advertisements which form the basis for this proceeding were published in the Milwaukee Journal and Milwaukee Sentinel from August through October, 1978. There were two different advertisements, both of which appeared as full page ads and in smaller versions.

The first ad, which will be referred to as the "meter ad," had a photograph of a taxi meter which registered [107 Wis.2d 564] a fare of seventy nine dollars and forty-five cents, followed by several paragraphs of text.

The ad was subsequently modified to replace "high level of legal expertise" with "high level of professionalism;" "individual will" with "simple will;" and "average saving

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of one-half or more" with "average saving which is quite substantial." ³

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[107 Wis.2d 566] The second ad, which will be referred to as the "hands tied" ad, showed a photograph

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of a rope around the wrists of two hands followed by several paragraphs of text. ⁴

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[107 Wis.2d 568] Several attorneys complained orally and in writing to persons associated with the Board and various bar associations that the

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ads were offensive. Following a preliminary investigation, the Board filed a complaint with this court charging respondents with professional misconduct for causing to be published a false, misleading and deceptive ad. This court appointed Hon. William C. Sachtjen, Reserve Judge, as referee. A hearing was held on May 26 and 27, 1981.

At that hearing, counsel for the Board introduced the ads and the fee schedule of the law firm. The Board's case consisted of the above documents, excerpts from answers to interrogatories and a deposition of Mr. Marcus, and the testimony of Mr. Tepper, who was called adversely.

The following evidence was adduced. The ads were formulated by Mr. Marcus and an advertising executive. Mr. Marcus based the statements in the ads on his law and business experience, and on conversations with other attorneys. He could not recall any specific sources of the information. Mr. Tepper reviewed the ads prior to their publication and approved them.

The Board introduced no other evidence. Two witnesses testified on behalf of respondents. The first was Professor Gerald Thain, a professor of law at the University of Wisconsin Law School. Professor Thain had been an attorney with the Federal Trade Commission whose responsibilities included review of advertising by national advertisers and making an initial determination as to whether the advertising was unfair or otherwise contrary to trade regulations. He has appeared twice before this court in connection with the adoption of rules governing attorney advertising. Professor Thain stated that "to a reasonable degree of advertising probability, the ads were not false, misleading or deceptive."

[107 Wis.2d 569] Respondents also called attorney James Brown, the director of the Center for Consumers Affairs in Milwaukee. Mr. Brown is president of the Wisconsin Consumers League and has served as a consumer representative on state bar committees. He stated that, based upon his experience as a Milwaukee attorney and consumer advocate, the ads were not "false, misleading or deceptive."

Mr. Tepper also testified, on his own behalf, that seventy-five to eighty percent of the firm's business was in the items listed in the ad and that those items did represent a fifty percent savings from the usual fees charged by attorneys for those services. He testified that he believed that the firm provided a high quality of representation, but that if he felt that a particular case called for expertise that the firm did not have, they would refer the case to outside counsel. Mr. Tepper also stated that, to his knowledge, no client had complained of the legal services provided by the firm.

Following the hearing the referee, Judge Sachtjen, issued a twenty-eight page report, containing findings of fact and conclusions of law, and ordered that the complaint be dismissed on its merits. The Board appealed to this court.

This is a case of first impression as to the issue of attorney advertising in this state. The Board urges us to interpret the rule governing attorney advertising so as to place upon attorneys the burden of proving the veracity of statements in advertisements which they cause to be published. Respondents argue that, in order to support a finding that they have engaged in professional misconduct, the Board must prove that the ads are false, misleading or deceptive. We first must determine who should bear the burden of establishing the truthfulness or lack thereof of the ad, and then determine whether[107 Wis.2d 570] the party upon whom the burden rests has sustained that burden.

The rule is a part of the Code of Professional Responsibility. Generally, in a disciplinary proceeding, the state has the burden of showing a violation of the Code of Professional Responsibility by clear and satisfactory evidence. State v. Wildermuth, 76 Wis.2d 476, 481, 251 N.W.2d 779 (1977). The rule at issue does not explicitly allocate the burden of proof. The state argues that the traditional burden should be shifted in advertising cases because of the difficulty of enforcing the rule if the state must shoulder the burden. Furthermore,

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requiring attorneys to ascertain the truth of advertisements which they place is appropriate in light of attorneys' status as officers of the court.

Given a choice of reasonable interpretations of a rule, this court should select a construction which renders the rule constitutional. Basinas v. State, 104 Wis.2d 539, 546, 312 N.W.2d 483 (1981); State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 526, 261 N.W.2d 434 (1978). In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53...