Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, No. 83-2166

• Court: United States Supreme Court
• Writing for the Court: WHITE
• Citation: 85 L.Ed.2d 652,471 U.S. 626,105 S.Ct. 2265
• Docket Number: No. 83-2166
• Decision Date: 28 May 1985
• Parties: Philip Q. ZAUDERER, Appellant v.

471 U.S. 626 105 S.Ct. 2265 85 L.Ed.2d 652 Philip Q. ZAUDERER, Appellant

v.

OFFICE OF DISCIPLINARY COUNSEL OF the SUPREME COURT OF OHIO.

No. 83-2166. Argued Jan. 7, 1985. Decided May 28, 1985. Syllabus

Appellant, an attorney practicing law in Ohio, ran a newspaper advertisement advising readers that his firm would represent defendants in drunken driving cases and that his clients' "full legal fee [would be] refunded if [they were] convicted of DRUNK DRIVING." Later, appellant ran another newspaper advertisement publicizing his willingness to represent women who had suffered injuries resulting from their use of a contraceptive known as the Dalkon Shield Intrauterine Device. The advertisement featured a line drawing of the device and stated that the Dalkon Shield had generated a large amount of lawsuits; that appellant was currently handling such lawsuits and was willing to represent other women asserting similar claims; that readers should not assume that their claims were time-barred; that cases were handled on a contingent-fee basis; and that "[i]f there is no recovery, no legal fees are owed by our clients." This advertisement attracted 106 clients. Appellee Office of Disciplinary Counsel of the Supreme Court of Ohio filed a complaint charging that appellant's advertisements violated a number of Disciplinary Rules of the Ohio Code of Professional Responsibility. The complaint alleged that the drunken driving advertisement was deceptive because it purported to propose a transaction that would violate a rule prohibiting contingent-fee representation in criminal cases, and that the Dalkon Shield advertisement violated rules prohibiting the use of illustrations in advertisements and the soliciting of legal employment. The complaint also alleged that the Dalkon Shield advertisement violated a rule prohibiting false or deceptive statements because it failed to inform clients that they would be liable for costs (as opposed to legal fees) even if their claims were unsuccessful. Rejecting appellant's contentions that the Ohio rules restricting the content of advertising by attorneys were unconstitutional, the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court concluded that the advertisements violated a number of the rules and recommended disciplinary action. With respect to the drunken driving advertisement, the Board, differing from the theory advanced in appellee's complaint, found that the advertisement's failure to mention the common practice of plea bargaining might be deceptive to potential clients who would be unaware of the possibility that they would both be found guilty of a lesser offense and be liable for

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attorney's fees because they had not been convicted of drunken driving. The Ohio Supreme Court ultimately adopted the Board's findings and issued a public reprimand.

Held: The reprimand is sustainable to the extent that it is based on appellant's advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Dalkon Shield advertisement. But insofar as the reprimand is based on appellant's use of an illustration in his advertisement and his offer of legal advice, the reprimand violated his First Amendment rights. Pp. 637-656.

(a) The speech at issue is "commercial speech" entitled to First Amendment protection. Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Pp. 637-638.

(b) The reprimand cannot be sustained on the ground that the Dalkon Shield advertisement violated rules against soliciting or accepting legal employment through advertisements containing information or advice regarding a specific legal problem. The advertisement's statements concerning the Dalkon Shield were neither false nor deceptive, and the governmental interests that were found to be sufficient to justify a ban on in-person solicitation of legal business in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444, are not present here. Nor can a prohibition on the use of legal advice and information in attorney advertising be sustained on the ground that a prophylactic rule is needed to ensure that attorneys, in an effort to secure legal business for themselves, do not use false or misleading advertising to stir up meritless litigation. And the contention that a prophylactic rule is necessary because the regulatory problems in distinguishing deceptive and nondeceptive legal advertising are different in kind from the problems presented by the advertising of other types of goods and services is unpersuasive. Pp. 639-647.

(c) Ohio's ban on the use of illustrations in attorney advertisements cannot stand. Because the illustration in appellant's Dalkon Shield advertisement was an accurate representation, the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means. The State's interest in preserving the dignity of the legal profession is insufficient to justify the ban on all use of illustrations in advertising. Nor can the rule be sustained on unsupported assertions that the use of illustrations in attorney advertising creates unacceptable risks that the public will be misled, manipulated, or confused; or that, because illustrations may produce their effects by operating on a subconscious level, it

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would be difficult for the State to point to any particular illustration and prove that it is misleading or manipulative. Pp. 647-649.

(d) The Ohio Supreme Court's decision to discipline appellant for his failure to include in the Dalkon Shield advertisement the information that clients might be liable for litigation costs even if their lawsuits were unsuccessful does not violate the First Amendment. Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. An advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers. The State's position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client's liability for costs is reasonable enough to support the disclosure requirement. Pp. 650-653.

(e) The constitutional guarantee of due process was not violated by the discrepancy between the theory relied on by both the Ohio Supreme Court and its Board of Commissioners as to how the drunken driving advertisement was deceptive and the theory asserted by appellee in its complaint. Under Ohio law, bar discipline is the Ohio Supreme Court's responsibility, and the Ohio rules provide ample opportunity for response to the Board's recommendations to the court that put appellant on notice of the charges he had to answer to the court's satisfaction. Such notice and opportunity to respond satisfy the demands of due process. Pp. 654-655.

10 Ohio St.3d 44, 461 N.E.2d 883, affirmed in part and reversed in part.

Alan B. Morrison, Washington, D.C., for appellant.

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H. Bartow Farr, III, Washington, D.C., for appellee.

Justice WHITE delivered the opinion of the Court.

Since the decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), in which the Court held for the first time that the First Amendment precludes certain forms of regulation of purely commercial speech, we have on a number of occasions addressed the constitutionality of restraints on advertising and solicitation by attorneys. See In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). This case presents additional unresolved questions regarding the regulation of commercial speech by attorneys: whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements.

I

Appellant is an attorney practicing in Columbus, Ohio. Late in 1981, he sought to augment his practice by advertising in local newspapers. His first effort was a modest one: he ran a small advertisement in the Columbus Citizen Journal advising its readers that his law firm would represent defendants in drunken driving cases and that his clients' "[f]ull legal fee [would be] refunded if [they were] convicted

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of DRUNK DRIVING." ¹ The advertisement appeared in the Journal for two days; on the second day, Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio (appellee) telephoned appellant and informed him that the advertisement appeared to be an offer to represent criminal defendants on a contingent-fee basis, a practice prohibited by Disciplinary Rule 2-106(C) of the Ohio Code of Professional Responsibility. Appellant immediately withdrew the advertisement and in a letter to Kettlewell apologized for running it, also stating in the letter that he would decline to accept employment by persons responding to the ad.

Appellant's second effort was more...