Peel, In re
| Decision Date | 02 February 1989 |
| Docket Number | No. 66771,66771 |
| Citation | 126 Ill.2d 397,534 N.E.2d 980,128 Ill.Dec. 535 |
| Parties | , 128 Ill.Dec. 535, 57 USLW 2485 In re Gary E. PEEL, Attorney, Respondent. |
| Court | Illinois Supreme Court |
William F. Moran, III, of Springfield, for the Administrator of the Atty. Registration and Disciplinary Commission.
Robert W. Bosslet, of Morris B. Chapman & Associates, of Granite City, for respondent.
Eugene I. Pavalon, of Chicago, and Jeffrey R. White, of Washington, D.C., for amicus curiae Association of Trial Lawyers of America.
Timothy Wilton, of Boston, Massachusetts, for amicus curiae National Board of Trial Advocacy.
Gary E. Peel is an attorney licensed to practice law in the State of Illinois. In 1983, the respondent, Peel, began placing on his letterhead that he was certified as a civil trial specialist by the National Board of Trial Advocacy (NBTA). Rule 2-105(a) of the Illinois Code of Professional Responsibility prohibits an attorney from holding himself out as "certified" or a "specialist" other than in fields of admiralty, trademark, and patent law. (107 Ill.2d R. 2-105(a).) A panel of the Hearing Board of the Attorney Registration and Disciplinary Commission (ARDC) recommended that the respondent be censured, and the Review Board affirmed the panel's recommendation. The respondent filed exceptions with this court concerning the Review Board's finding that his conduct was misleading and its recommendation that he be censured. This case presents the issue of whether Rule 2-105(a) is unconstitutional as applied to attorneys' advertising certification by the NBTA, because it violates the first amendment guarantee of free speech.
The basis for the alleged violation of Rule 2-105(a)(3) was respondent's professional letterhead, which reads:
"Gary E. Peel
Certified Civil Trial Specialist
By the National Board of Trial Advocacy.
Licensed: Illinois, Missouri, Arizona"
Rule 2-105 of the Illinois Code of Professional Responsibility provides:
"Rule 2-105. Limitation of Practice
(a) A lawyer shall not hold himself out publicly as a specialist, except as follows:
(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation 'Patents,' 'Patent Attorney,' 'Patent Lawyer,' or 'Registered Patent Attorney' or any combination of those terms, on his letterhead and office sign.
(2) A lawyer engaged in the trademark practice may use the designation 'Trademarks,' 'Trademark Attorney' or 'Trademark Lawyer,' or a combination of those terms, and a lawyer engaged in the admiralty practice may use the designation 'Admiralty,' 'Proctor in Admiralty' or 'Admiralty Lawyer,' or a combination of those terms, in any form of communication otherwise permitted under Rules 2-101 through 2-104.
(3) A lawyer or law firm may specify or designate any area or field of law in which he or its partners concentrates or limits his or its practice. Except as set forth in Rule 2-105(a), no lawyer may hold himself out as 'certified' or a 'specialist.' " (107 Ill.2d R. 2-105.)
The Administrator for the ARDC asserts that respondent's holding himself out as a civil trial specialist certified by the NBTA is misleading, because this court does not recognize any such specialty. The Administrator contends that the advertisement is misleading in three ways. First, a person reading respondent's letterhead would be led to believe that respondent is a specially qualified attorney. Because this court licenses attorneys in this State, the Administrator claims that a reader might be led to believe that this court certifies respondent's claimed specialty. Second, the Administrator contends that the terms "certified" and "specialist" are technical in nature and could easily mislead the public. Third, respondent's advertisement, according to the Administrator, must be construed as a claim to the quality of legal services he provides, which is inherently misleading.
The respondent contends that the Supreme Court has extended the first amendment protection of commercial speech to lawyers' advertisements by prohibiting the State's right to subject lawyer advertising to a "blanket suppression." (See Bates v. State Bar (1977), 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810.) Although the respondent acknowledges that the Supreme Court held that misleading advertising by attorneys may be prohibited entirely (see In re R.M.J. (1982), 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64), he asserts that his claim that he is certified as a civil trial specialist by the NBTA would not mislead the public but instead would provide them with truthful, relevant information which would be helpful in the selection of a lawyer.
Similarly, the respondent asserts that claiming he is certified as a civil trial specialist is not even potentially misleading because it is a truthful statement. Furthermore, because the statement is not potentially misleading, the respondent contends, the State, at a minimum, is obligated to assert a substantial interest in order to prohibit the speech. In support of the assertion that the State has failed to establish a substantial interest in prohibiting the respondent from claiming he is a certified civil trial specialist, the respondent notes that Rule 2-105(a) allows admiralty attorneys to claim specialization without requiring the attorney to have any experience in that field of practice. Thus, the respondent claims the State has failed to establish a substantial interest in prohibiting the designation of certified civil trial specialist because it is not misleading or deceptive on its face. According to the respondent, the prohibition of Rule 2-105 is too restrictive because his designation of certified civil trial specialist cannot possibly mislead the public because it only appears on his professional letterhead which is generally sent to other lawyers and present clients.
Finally, respondent urges this court to follow two State supreme court cases which have held 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 the case at bar: Does the first amendment prohibit a State's proscription of advertising the designation of certified civil trial specialist by the NBTA? The Alabama Code of Professional Responsibility provided that it was inappropriate for an attorney to hold himself out as a specialist except in the historically accepted fields of admiralty, trademark and patent law. (Ex parte Howell, 487 So.2d at 849.) The Alabama Supreme Court held that the "advertisement of certification by the NBTA as a civil trial advocate would not be misleading or deceptive on its face." (Ex parte Howell, 487 So.2d at 851.) The court, in Howell, noted that the public should be protected from potentially misleading representations and, therefore, directed the bar association to formulate a proposed rule and method for approving certifying organizations similar to the NBTA. (487 So.2d at 851.) Similarly, in In re Johnson the Minnesota court held that the disciplinary rule prohibiting lawyer advertising of a legitimate specialization certification was unconstitutional, in view of its overbreadth. The Minnesota court noted that members of the general public could be misled by claims of specialization when no guidelines for specialization in the profession had been drawn. The court noted, however, that the hearing panel of the Board of Professional Responsibility found that the advertisement was not misleading or deceptive. (In re Johnson, 341 N.W.2d at 285.) Subsequently, the Minnesota Code of Professional Conduct was amended to provide for certification of organizations similar to NBTA by the State Board of Legal Certification (Minnesota Rules of Professional Conduct, Rule 7.4(b)), in order to protect the public from spurious agencies and meaningless certifications.
Amicus curiae the National Board of Trial Advocacy urges this court to follow other States which have amended their ethics rules to permit a statement of specialty certification so long as the lawyer is certified by an approved agency with rigorous standards. (See, e.g., Alabama Code of Professional Responsibility, Temporary D.R. 2-112; Connecticut Rules of Professional Conduct, Rule 7.4A.) The NBTA noted in its brief that the States which have programs regulating the advertising of specialty certification have approved the NBTA because it is a reputable organization with rigorous and comprehensive certification standards.
Amicus submits that an attorney's claiming certification by the NBTA is not misleading or even potentially misleading. Moreover, amicus contends that certification by the NBTA is precisely the sort of information which should be conveyed to the public and which is protected by the first amendment.
We begin our analysis of the issues by reviewing the constitutional limitations on the regulation of lawyer advertising. In Bates v. State Bar (1977), 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810, the Supreme Court declared that the first amendment protects some attorney advertising from State prohibition. The Court held that prohibitions on the advertising of legal fees for routine legal services were unconstitutional. (433 U.S. at 382, 97 S.Ct. at 2708, 53 L.Ed.2d at 834-35. The Court stated: "[C]ommercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system." (433 U.S. at 364, 97 S.Ct. at 2699, 53 L.Ed.2d at 823.) The Court, in Bates, further noted that a complete ban on advertising is "highly paternalistic" (433 U.S. at 365, 97 S.Ct. at 2699, 53 L.Ed.2d at 824) and stated that "the preferred remedy is more disclosure,...
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