Office of Disciplinary Counsel v. Zauderer

• Citation: 461 N.E.2d 883,10 OBR 308,10 Ohio St.3d 44
• Decision Date: 04 April 1984
• Docket Number: No. 83-19,83-19
• Parties: , 10 O.B.R. 308 OFFICE OF DISCIPLINARY COUNSEL v. ZAUDERER. D.D.
• Court: United States State Supreme Court of Ohio

Page 44

10 Ohio St.3d 44

461 N.E.2d 883, 10 O.B.R. 308

OFFICE OF DISCIPLINARY COUNSEL v. ZAUDERER.

D.D.No. 83-19.

Supreme Court of Ohio.

April 4, 1984.

Syllabus by the Court

DR 2-101(B) of the Code of Professional Responsibility permissibly restricts the content of protected commercial speech and is therefore not violative of the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution.

On July 29, 1982, the Office of Disciplinary Counsel, relator herein, filed a complaint against Philip Q. Zauderer, respondent herein, alleging that respondent violated certain Disciplinary Rules of the Ohio Code of Professional Responsibility with the publication of two legal service advertisements.

The first advertisement related to respondent's availability for representation of individuals charged with driving while intoxicated. That advertisement appeared in one newspaper for a period of two days, at which time respondent voluntarily withdrew it. He accepted no employment as a consequence of that advertisement.

The second advertisement related to respondent's availability for representation of women in connection with injuries resulting from the use of a particular intrauterine birth control device known as the "Dalkon Shield." This advertisement, which was the subject of six of the nine counts of the relator's complaint as later amended, contained various types of information, including: (1) a diagram of the Dalkon Shield; (2) statements that the Dalkon Shield has been alleged to have caused serious injuries to its users; (3) a statement that it may not be too late to take legal action against the Dalkon Shield's manufacturer; (4) the statement that the respondent's firm is representing women who have sustained such injuries; and (5) statements that the respondent's fees for such representation are payable on a contingency basis. ¹ The Dalkon Shield advertisement did not state the percentage of the respondent's contingent fee rates nor did it describe potential litigation-related costs.

On May 24, 1983, a hearing was held on these matters before a three-member panel of the Board of Commissioners on Grievances and Discipline (hereinafter "board"), at which time a substantial amount of evidence was introduced respecting the value of advertising to the public, and the unique value of respondent's Dalkon Shield advertisement in light of the public's limited awareness of the dangers of that particular device. As a result of that hearing, the panel recommended that respondent receive a public reprimand.

The board declined to adopt the panel's recommendation, however, and recommended instead that respondent be indefinitely suspended from the practice of law. This disciplinary measure was based upon the board's findings that: (1) use of the Dalkon Shield diagram violated the prohibition of DR 2-101(B) against illustrations; (2) the Dalkon Shield advertisement contained an implicit self-recommendation of employment and respondent, through such advertisement, gave unsolicited legal advice and, therefore, his acceptance of employment violated DR 2-104(A); (3) the failure to include specific information relating to potential litigation-related costs rendered the Dalkon Shield advertisement misleading in violation of DR 2-101(A); (4) the failure to state specific fee rates in the Dalkon Shield advertisement constituted a violation of DR 2-101(B)(15); and (5) in recommending employment of himself as a private practitioner to a non-lawyer who had not sought his advice regarding employment of a lawyer, respondent violated DR 2-103(A). The board specifically rejected respondent's assertions that the Disciplinary Rules, as applied to the Dalkon Shield advertisement, are violative of the constitutional guarantees of free speech.

As to the drunk driving advertisement, the board found that respondent violated DR 2-101(A).

The American Civil Liberties Union Foundation of Ohio, Inc., the Dispatch Printing Company, and the Ohio Newspaper Association have filed amicus curiae briefs urging this court to strike as constitutionally infirm the Disciplinary Rules in question.

Angelo J. Gagliardo, disciplinary counsel, and Charles W. Kettlewell, Columbus, for relator.

David K. Frank, Columbus, for respondent.

Gingher & Christensen, Paul R. Gingher, Daniel G. Hale and Malcolm L. Miller, Columbus, for amicus curiae, Ohio Newspaper Ass'n.

Jones, Day, Reavis & Pogue, John W. Zeiger and Todd S. Swatsler, Columbus, for amicus curiae, Dispatch Printing Co.

Porter, Wright, Morris & Arthur and Lita C. Miller, Columbus, for amicus curiae, American Civil Liberties Union Foundation of Ohio, Inc.

CLIFFORD F. BROWN, Justice.

This is a case of first impression in Ohio concerning the constitutional validity of Disciplinary Rules which restrict the content of legal service advertisements. Specifically, the question presented herein is whether the content restrictions of DR 2-101(B) ² violate the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution.

As to the Dalkon Shield advertisement we agree with the findings of the panel and board that respondent violated DR 2-101(B), prohibiting illustrations in an advertisement; DR 2-104(A), in accepting employment resulting from unsolicited advice given by him to a non-lawyer; DR 2-101(A), in publishing communications which were misleading; DR 2-101(B)(15), by failing fully to disclose the terms of the contingent fee arrangement which was intended to be entered into at the time of publishing the advertisement; and DR 2-103(A), in recommending employment of himself as a private practitioner to a non-lawyer who had not sought his advice regarding employment of a lawyer.

These sections which the panel and board found had been violated by the respondent are constitutional provisions of the Ohio Disciplinary Rules as contained within the Code of Professional Responsibility.

The holdings of the United States Supreme Court in Bates v. State Bar of Arizona (1977), 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 and In re R.M.J. (1982), 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64, do not totally prohibit the states from restricting lawyer advertising. The court in Bates, at 383-384, 97 S.Ct. at 2708-09, stated that there could well be a number of areas where restrictions are allowed. Certainly one such area is where the advertising is misleading per se, or may be misleading in its reach and interpretation. A potential client peering at a lawyer advertisement may be misled or confused by the expressed words, by an illustration or drawing, or by a combination of both.

In the subsequent case of In re R.M.J., the court at page 203 recognized that the state retains some authority to regulate a communication which is not misleading in nature. The state must, however, assert a substantial interest in the regulation and the restriction on the advertisement must be in proportion to the interest served.

Although the restrictions must be narrowly drawn, this state's Disciplinary Rule concerning lawyer advertising passes constitutional muster. Each restriction is closely related to a substantial state interest. It is our view that an allowable restriction for lawyer advertising is that of asserted expertise of the advertising lawyer. A lawyer should not be permitted to hold himself out as an expert in certain designated areas unless there are in existence certain standards or criteria that have been promulgated by the court and set forth in the Disciplinary Rules.

Also, requirements relative to the content of the advertising concerning legal fees would be permissible under the United States Supreme Court rulings cited. Certainly for purposes of clarity to those reading a lawyer advertisement which...