Peel v. Attorney Registration and Disciplinary Commission of Illinois, No. 88-1775

CourtUnited States Supreme Court
Writing for the CourtSTEVENS, J., announced the judgment of the Court and delivered an opinion, in which BRENNAN, BLACKMUN, and KENNEDY, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN
Citation496 U.S. 91,110 L.Ed.2d 83,110 S.Ct. 2281
Docket NumberNo. 88-1775
Decision Date04 June 1990
PartiesGary E. PEEL, Petitioner, v. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF ILLINOIS

496 U.S. 91
110 S.Ct. 2281
110 L.Ed.2d 83
Gary E. PEEL, Petitioner,

v.

ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF ILLINOIS.

No. 88-1775.
Argued Jan. 17, 1990.
Decided June 4, 1990.
Syllabus

Petitioner Peel is licensed to practice law in Illinois and other States. He also has a "Certificate in Civil Trial Advocacy" from the National Board of Trial Advocacy (NBTA), which offers periodic certification to applicants who meet exacting standards of experience and competence in trial work. The Administrator of respondent Attorney Registration and Disciplinary Commission of Illinois filed a complaint alleging that Peel, by using a professional letterhead that stated his name, followed by the indented notation "Certified Civil Trial Specialist By the [NBTA]" and the unindented notation "Licensed: Illinois, Missouri, Arizona," was, inter alia, holding himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. The Commission recommended censure. The State Supreme Court adopted the Commission's recommendation, concluding that the First Amendment did not protect the letterhead because the public could confuse the State and NBTA as the sources of his license to practice and of his certification, and because the certification could be read as a claim of superior quality.

Held: The judgment is reversed, and the case is remanded.

126 Ill.2d 397, 128 Ill.Dec. 535, 534 N.E.2d 980 (1989), reversed and remanded.

Justice STEVENS, joined by Justice BRENNAN, Justice BLACKMUN, and Justice KENNEDY, concluded that a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by NBTA. Pp. 99-111.

(a) Truthful advertising related to lawful activities is entitled to First Amendment protections. Although a State may prohibit misleading advertising entirely, it may not place an absolute prohibition on potentially misleading information if the information may also be presented in a way that is not deceptive. In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64. P. 2287.

(b) Peel's letterhead is not actually or inherently misleading. The facts stated on his letterhead are true and verifiable, and there has been no finding of actual deception or misunderstanding. The state court's focus on the implied "claim" as to the "quality" of Peel's legal services confuses the distinction between statements of opinion or quality and statements of objective facts that may support an inference of quality. Even if NBTA standards are not well known, there is no evidence that

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consumers, such as those in States with certification plans, are misled if they do not inform themselves of the precise standards of certification. There also has been no finding, and there is no basis for the belief, that Peel's representation generally would be associated with governmental action. The public understands that licenses are issued by governmental authorities and that many certificates are issued by private organizations, and it is unlikely that the public necessarily would confuse certification as a "specialist" by a national organization with formal state recognition. Moreover, other States that have evaluated lawyers' advertisements of NBTA certifications have concluded that they were not misleading and were protected by the First Amendment. Pp. 100-106.

(c) The State's interest in avoiding any potential that Peel's statements might mislead is insufficient to justify a categorical ban on their use; nor does the State Supreme Court's inherent authority to supervise its own bar insulate its judgment from this Court's review for constitutional infirmity. The need for a complete prophylactic rule against any claim of certification or specialty is undermined by the fact that the same risk of deception is posed by specified designations—for "Registered Patent Attorney" and "Proctor in Admiralty"—that are permitted under Rule 2-105(a). Such information facilitates the consumer's access to legal services and better serves the administration of justice. To the extent that such statements could confuse consumers, the State might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty. Pp. 106-111.

Justice MARSHALL, joined by Justice BRENNAN, agreeing that the State may not prohibit Peel from holding himself out as a certified NBTA trial specialist because the letterhead is neither actually nor inherently misleading, concluded that the letterhead is potentially misleading and thus the State may enact regulations other than a total ban to ensure that the public is not misled by such representations. The letterhead is potentially misleading because NBTA's name could give the impression to nonlawyers that the organization is a federal government agency; the juxtaposition of the references to Peel's state licenses to practice law and to his certification by the NBTA may lead individuals to believe that the NBTA is somehow sanctioned by the States; and the reference to NBTA certification may cause people to think that Peel is necessarily a better trial lawyer than attorneys without certification, because facts as well as opinions may be misleading when they are presented without adequate information. A State could require a lawyer to provide additional information in order to prevent a claim of NBTA certification from being misleading. A State may require, for example, that the letterhead include a disclaimer stating that the NBTA is a private organization not affiliated with or sanctioned by the State or Federal Government, or

Page 93

information about NBTA's requirements for certification so that any inferences drawn by consumers about the certified attorney's qualifications would be based on more complete knowledge of the meaning of NBTA certification. Each State may decide for itself, within First Amendment constraints, how best to prevent such claims from being misleading. Pp. 111-117.

STEVENS, J., announced the judgment of the Court and delivered an opinion, in which BRENNAN, BLACKMUN, and KENNEDY, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 111. WHITE, J., filed a dissenting opinion, post, p. 118. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 119.

Bruce J. Ennis, Jr., Washington, D.C., for petitioner.

Stephen J. Marzen, Washington, D.C., for Federal Trading Com'n, as amicus curiae, supporting petitioner by special leave of Court.

William F. Moran, III, for respondent.

Justice STEVENS announced the judgment of the Court and delivered an opinion, in which Justice BRENNAN, Justice BLACKMUN, and Justice KENNEDY join.

The Illinois Supreme Court publicly censured petitioner because his letterhead states that he is certified as a civil trial specialist by the National Board of Trial Advocacy. We

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granted certiorari to consider whether the statement on his letterhead is protected by the First Amendment. 492 U.S. 917, 109 S.Ct. 3240, 106 L.Ed.2d 588 (1989).1

I

This case comes to us against a background of growing interest in lawyer certification programs. In the 1973 Sonnett Memorial Lecture, then Chief Justice Warren E. Burger advanced the proposition that specialized training and certification of trial advocates is essential to the American system of justice.2 That proposition was endorsed by a number of groups of lawyers 3 who were instrumental in establishing the National Board of Trial Advocacy (NBTA) in 1977.

Page 95

Since then, NBTA has developed a set of standards and procedures for periodic certification of lawyers with experience and competence in trial work. Those standards, which have been approved by a board of judges, scholars, and practitioners, are objective and demanding. They require specified experience as lead counsel in both jury and nonjury trials, participation in approved programs of continuing legal education, a demonstration of writing skills, and the successful completion of a day-long examination. Certification expires in five years unless the lawyer again demonstrates his or her continuing qualification.4

NBTA certification has been described as a "highly-structured" and "arduous process that employs a wide range of assessment methods." Task Force on Lawyer Competence, Report With Findings and Recommendations to the Conference of Chief Justices, Publication No. NCSC-021, pp. 33-34 (May 26, 1982). After reviewing NBTA's procedures, the Supreme Court of Minnesota found that "NBTA applies a rigorous and exacting set of standards and examinations on a national scale before certifying a lawyer as a trial

Page 96

specialist." In re Johnson, 341 N.W.2d 282, 283 (1983). The Alabama Supreme Court similarly concluded that "a certification of specialty by NBTA would indicate a level of 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, and in Missouri in 1981. He has served as president of the Madison County Bar Association and has been active in both national and state bar association work.5 He has tried to verdict over 100 jury trials and over 300 nonjury trials, and has participated in hundreds of other litigated matters that were settled. NBTA issued petitioner a "Certificate in Civil Trial Advocacy" in 1981, renewed it in 1986, and listed him in its 1985 Directory of "Certified Specialists and Board Members." 6

Since 1983 petitioner's professional letterhead has contained a statement referring to his NBTA certification and to the three States in which he is licensed. It appears as...

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158 practice notes
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    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 15, 1998
    ...require that potentially misleading speech be presented in a non-misleading manner. Peel v. Attorney Registration and Disciplinary Comm'n, 496 U.S. 91, 111, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990) (Marshall, J., concurring) (Peel). It contends that Section 4.6.1 of the proposed concession agr......
  • Pearson v. Shalala, No. 98-5043
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 15, 1999
    ...512 U.S. 136, 144-46, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994); Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, 496 U.S. 91, 99-111, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990). As best we understand the government, its first argument runs along the following lines: that health c......
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    • California Court of Appeals
    • May 26, 2005
    ...contrary finding by the California Legislature.20 Thus, Bronco's reliance on Peel v. Attorney Registration & Disciplinary Comm'n (1990) 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (designation on letterhead of certification as civil trial specialist facially true); Zauderer, supra, 471 U.S.......
  • Philip Morris Inc. v. Harshbarger, Nos. 97-8022
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 6, 1997
    ...the nature and character of the burden created should other states impose differing reporting requirements. See English 496 U.S. at 90, 110 S.Ct. at 2281 (finding certain imagined prospects "simply too speculative a basis on which to rest a finding of pre-emption"). Although the cigarette m......
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155 cases
  • Capital Leasing of Ohio v. Columbus Mun. Airport, No. C2-98-356.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 15, 1998
    ...require that potentially misleading speech be presented in a non-misleading manner. Peel v. Attorney Registration and Disciplinary Comm'n, 496 U.S. 91, 111, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990) (Marshall, J., concurring) (Peel). It contends that Section 4.6.1 of the proposed concession agr......
  • Pearson v. Shalala, No. 98-5043
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 15, 1999
    ...512 U.S. 136, 144-46, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994); Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, 496 U.S. 91, 99-111, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990). As best we understand the government, its first argument runs along the following lines: that health c......
  • Bronco Wine Co. v. Jolly, No. C037254.
    • United States
    • California Court of Appeals
    • May 26, 2005
    ...contrary finding by the California Legislature.20 Thus, Bronco's reliance on Peel v. Attorney Registration & Disciplinary Comm'n (1990) 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (designation on letterhead of certification as civil trial specialist facially true); Zauderer, supra, 471 U.S.......
  • Philip Morris Inc. v. Harshbarger, Nos. 97-8022
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 6, 1997
    ...the nature and character of the burden created should other states impose differing reporting requirements. See English 496 U.S. at 90, 110 S.Ct. at 2281 (finding certain imagined prospects "simply too speculative a basis on which to rest a finding of pre-emption"). Although the cigarette m......
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