Dean's Address

FOOTNOTES

1. 433 U.S. 350 (1977).

2. Andrews BIRTH OF SALESMAN: LAW ADVERTISING AND SOLICITATION85 (1981). See generally DRINKER, LEGAL ETHICS11 ‑19 (1953) (for a general description of the early bar in England)

3. DRINKER, LEGAL ETHICS at 210.

4. Id. at 20‑21.

5. Id. at 20. 

6. ANDREWS, supra note 2, at 1.

7. DRINKER, supra note 2, at 23.

8. Alabama State Bar Association, Code of Ethics § 16 (1887,1899), reprinted in DRINKER, supra note 2, at 356.

9. Canons of Professional Ethics, Canon 27. Although the Canon was amended throughout the years, this concept was maintained.

10. ANDREWS, supra note 2, at 1.

11. "Model Code of Professional Responsibility DR 2‑101 (1969).

12. Report to the Board of Governors of the Task Force on Lawyer Advertising, reprinted in ANDREWS, supra note 2, at 91‑134 (1981).

13. Ibid.

14. Ibid.

15. Proceedings of the 1977 Annual Meeting of the House of Delegates, 102 Reports of the American Bar Association 546 (1977).

16. Model Code of Professional Responsibility DR 2‑101 (1981).

17. Model Code of Professional Responsibility DR 2‑105 (1981).

18. 447 U.S. 557 (1980).

19. Id. at 566. See also Andrews, Lawyer Advertising and the First Amendment, 1981 ‑985 (discussing the Central Hudson case).Am. B. FOUNDATION RESEARCH J. 967, 982

20. In re R. M.J., 455 U.S. 191 (1982).

21. Id. at 203.

22. On May 28, 1985, the United States Supreme Court handed down its decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 53 U.S.L.W. 4587. Attorney Zauderer was disciplined by Ohio on account of two different newspaper advertisements.

The advertisement of most concern to this discussion publicized the attorney's willingness to represent women who had suffered injuries as a result of their use of the Dalkon Shield Intrauterine Device. This ad featured a line drawing of the Device with the question "Did you use this IUD?" This was followed with a long array of diseases and symptoms that the Device is "alleged to have caused." The readers were advised not to assume that their claims were time‑barred, and that "our law firm" was currently handling such cases "on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients." The ad concluded with the name of the law firm, its address, and a phone number that the reader might call for "free information." Zauderer filed 106 lawsuits on behalf of the women who contacted him as a result of the ad. It was stipulated that the advertisement's information and advice concerning the Dalkon Shield was neither false nor deceptive, and was entirely accurate.

Ohio's Disciplinary Rule prohibited an attorney who has given unsolicited advice to a layman from accepting employment resulting from that advice. Ohio also contended that the ad was "deceptive" in that it failed to inform clients that they would be liable for costs (as opposed to fees) even if their claims were unsuccessful.

With respect to accepting employment resulting from unsolicited advice to a layman, the Court distinguished "print" solicitation of legal business from the in‑person solicitation dealt with in Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464‑65 (1978), where it was determined that in‑person solicitation by a lawyer "was a practice rife with possibilities for overreaching, invasion of privacy, the exertion of undue influence, and outright fraud." Accordingly, the Zauderer Court held: "An attorney may not be disci­plined for soliciting legal business through printed advertising containing truthful and noncleceptive information and advice regarding the legal rights of potential clients."

53 U.S.L.W. at 4593. This portion of the opinion will require mass revision of state codes.

The Court also found that the use of illustrations or pictures in advertisements was entitled to First Amendment protection; and restrictions on such use had to survive scrutiny under the Central Hudson test. Finding that Ohio had not shown that the drawing of the IUD ran afoul of an important state interest, its disciplinary action was reversed. 53 U.S.L.W. 4594.

On the other hand, the Court did recognize that the ad's silence as to the client's responsibility for costs could be misleading, and allowed the state court's reprimand to stand. 53 U.S.L.W. 4594‑95.

See n. 76 infra.

23. These guidelines were not changed by Zauderer; if anything, some of them were reinforced.

24. Model Rules of Professional Conduct, Rule 7.4.

25. Joiner, Specialization in the Lau) ‑ Control It or It Will Destroy the Profession, 41 ABA J. 1105 (1955).

26. Id. at 1170: "Today's specialists and general practitioners advertise in law directories. This should be sufficient."

27. Standing Committee on Specialization, American Bar Association, Handbook on Specialization 7 (1982); joiner, supra note 25, at 1171.

28. Report of the Special Committee on Recognition and Regulation of Specialization in Law Practice, 87 REP. Am. B. A. 361, 8oo (1962); Proceedings of the House of Delegates at the 1962 Annual Meeting, 87 REP. Am. B. A. 426, 452‑54.

29. Standing Committee on Specialization, supra note 27, at 7.

30. Burger, The Special Skills ofAdvocacy: Are Specialized Training and Certification of Advocates Essential to Our System of justice, 42 FORDHAM L. REV. 227, 230‑31 (1973).

31. See ABA Standing Committee on Specialization, Informational Bulletin #9, 1‑10 (1983) (Describing the activities of the committee

32. ABA Model Plan of specialization § I (adopted Aug. 15, 1979).

33. 1d. at §§ 2‑3.

34. Id. at § § 8‑11.

35. Handbook on Specialization, supra note 27, at 20‑21.

36. Id. at A‑11 through A‑15.

37. These questions have been asked for years. E.g., Anderson, Law Practice Issues and Developments in Utah: Status Report on Lawyer Specialization, 1978 UTAH L. REV. 681, 690

38. See ABA Report: Specialization Plans‑State Status Report (March 1985), listing Delaware, Georgia, Hawaii, Mississippi, Vermont, and Wyoming as having inactive specialization committees and many other states as having no committees. The list also indicates those states which have adopted and rejected specialization plans.

39. See Handbook on Specialization, supra note 31, at 24.

40. 688 F.2d 218 (4th Cir. 1982).

41. Id. at 219.

42. Id. at 219‑20. The prior cases were 427 F. Supp. 5o6 (E.D. Va. 1976), 433 U.S. 917 (1977), 470 F Supp. 1055 (E.D. Va. 1979), 446 U.S. 719 (1980), and 505 F. Supp. 822 (E.D. Va. 1981).

43. 688 F.2d at 222.

44. E.g., Bishop v. Committee on Professional Ethics & Conduct, 521 F. Supp. 1219 (S.D.Iowa 1981); Lovett & Linder, Ltd. v. Carter, 523 F. Supp. 903 (D.R.I. 1981); Durham V.Brock, 498 F. Supp. 213 (M.D. Tenn. 1980).

45. The New Jersey plan covers civil and criminal trial attorneys. A.B.A. Rep. Specialization Plans‑St. Status Rep. Texas includes trial practice as one of the specialties recognized in that state. Anderson, supra note 37, at 682 n.4.

46. Haaglund & Birnbaum, Legal Specialization: The Need for Uniformity 67 JUD. 436, 440, 444 (1984). In Minnesota, this approval was made by court decision. See "Specialization and Advertising" insert, id. at 443‑44 (discussing In re: R.W. Johnson, 341 N.W. 2d 282 (Minn. 1983)).

47. Except for dicta by Justice White in a footnote to the recent Zauderer decision, supra note 26, 53 U.S.L.W. at 4591 n.9. See note 76 infra.

48. 433 U.S. at 383‑84.

49. Model Rules of Professional Conduct Rule 7.4, Comment 1: "[S]tating that the lawyer is a 'specialist' or that the lawyer's practice 'is limited to' or 'concentrated in' particular fields is not permitted. These terms have acquired a secondary meaning implying formal recognition as a specialist

50. In re Petition for Rule of Court Governing Lawyer Advertising, 564 S.W.2d 638, 645 (Tenn. 1978).

51. Lovett & Linder Ltd. v Carter, supra note 44, at 911.

52. See generally ANDREWS, supra note 2, at 1000

53. 425 U.S. 748 (1976).

54. This was emphasized by the Chief justice in his separate concurring opinion; "In dispensing these pre‑packaged items, the pharmacist performs largely a packaging rather than a compounding function of former times. Our decision, today, therefore, deals largely with the States power to prohibit pharmacists from advertising the retail price of pre‑packaged drugs." Id. at 773‑74 (Emphasis in original.).

55. The Court was concerned that those whom the suppression of prescription drug price information would hit the hardest were the poor, the sick, and particularly the aged who "are least able to learn ... where their scarce dollars are best spent." 

56. Id. at 773 n.25.

57. The advertisement before the Court was run in a Phoenix newspaper by the "Legal Clinic of Bates & O'Steen," who offered its services 'At Very Reasonable Fees" for uncontested divorce, adoption, bankruptcy, and change of name. The amount of fee and costs were listed alongside each service.

58. 433 U.S. at 372 (Emphasis added.).

59. Id. at 365. The Chief justice sharply disagreed: I had thought that we made it most explicit that our holding there rested on the fact that the advertisement of standardized, pre‑packaged, name‑brand drugs was at issue." Id. at 386.

60. 1d. at 365.

61. Id. at 365 (quoting from Virginia Pharmacy Board v. Virginia Consumer Council, supra note 53, at 770.)

62. Id. at 375.

63. "Studies reveal that many persons do not obtain counsel even when they perceive a need because of the feared prices of services or because of an inability to locate a competent attorney." Id. at 370. See note 55 supra.

64. Justice Rehnquist would not have extended First Amendment protection to purely commercial speech. Id. at 404‑405.

65. Id. at 391‑95 (Powell, J,, dissenting); id. at 387 (Burger, CJ., dissenting).

66. Id. at 386 (Burger, CJ., dissenting); id. at 392 (Powell, J., dissenting).

67. Id. at 386.

68. Id. at 391

69. Id. at 403‑404,

70. Id. at 388.

71. Id. at 395‑97.

72. Id. at 387.

73. "The Bates case has been generally accepted as a statement by the Supreme Court that lawyers cannot be prohibited from advertising the fact that they do or do not practice in areas of the law ‑ so‑called field advertising." ABA Standing Committee on Specialization, Informational Bulletin #9, supra note 31, at 15.

74. 433 U.S. at 372.

75. See P. 2‑3, supra

76. In a totally gratuitous footnote aside to his Zauderer opinion, Justice White inaccurately opines that: "[O]ur decisions ... do not permit a State to prevent an attorney from making accurate statements of fact regarding the nature of his practice merely because it is possible that some readers will infer that he has some expertise in those areas. See In rc R.MJ., 455 U.S. 191, 203‑205 (1982)." 53 U.S.L.W. 4591 n.9. The language in R.M.J. referred to is: "[T]he States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive." 455 U.S. at 203.

Whether field of practice advertising is so inherently misleading as to justify its outright prohibition by states was no more at issue in R. M.J than it was in Zauderer. See text accompanying n.20 supra. Oddly, the Zauderer majority may inadvertently have handed the states a tool which allows them substantially to lessen the number of lawyers engaging in advertising those fields of practice that are usually contracted on a contingent fee basis. Zauderer specifically allowed Ohio to require that ads trumpeting free services where no money is collected must inform the consumer he will still be liable for costs. 53 U.S.L.W. at 4594. moreover, it appears that a state may require "that the attorney's contingent fee rate must be disclosed, . . ." 53 U.S.L.W. at 4594‑95 n.15. Some attorneys may not wish to be so candid, and others may curtail or eliminate such ads because of the added cost this may impose ‑ especially those with a "sliding scale" type of fee structure.

77. 455 U.S. at 200 n.11.

78. Mo.B.Bull.2 (March 1985)