1 Bates v. State Bar, 433 U.S. 350 (1977); In re Primus, 436 U.S. 412 (1978).Google Scholar

2 NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); United Mine Workers, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217 (1967); United Transp. Union v. State Bar, 401 U.S. 576 (1971).Google Scholar

3 See, e.g., Bates; Primus; Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140, 412 N.E.2d 927, 432 N.Y.S.2d 872 (1980); Kentucky Bar Ass'n v. Stuart, 568 S.W.2d 933 (Ky. 1978); In re Jaques, 407 Mich. 26, 281 N.W.2d 469 (1979). But see Allison v. Louisiana State Bar Ass'n, 362 So. 2d 489 (La. 1978).Google Scholar

4 American Bar Association, Opinions of the Committee on Professional Ethics with the Canons of Professional Ethics Annotated and Canons of Judicial Ethics Annotated 75 (Chicago: American Bar Foundation, 1967).Google Scholar

5 The ABA Committee on Ethics and Professional Responsibility, in Informal Opinion 1342 (June 25, 1975), found that the wearing of such jewelry did not constitute prohibited advertising.Google Scholar

6 ABA Informal Opinion 771 (Aug. 28, 1964) prohibited such a phrase in a postage meter imprint.Google Scholar

7 Supra note 4.Google Scholar

8 Barbara A. Curran, The Legal Needs of the Public: The Final Report of a National Survey 228 (Chicago: American Bar Foundation, 1977).Google Scholar

9 Project, An Assessment of Alternative Strategies for Increasing Access to Legal Services, 90 Yale L.J. 122, 129, 131 (1980).Google Scholar

10 433 U.S. 350 (1977).Google Scholar

11 Code of Professional Responsibility of the Alabama State Bar as amended by Ala. Sup. Ct. Orders of May 10, 1978, and May 2, 1979; Alaska Code of Professional Responsibility as amended by Alaska Sup. Ct. Orders No. 356, Jan. 25, 1979, effective April 1, 1979, and No. 377, June 29, 1979, effective July 1, 1979; Arizona Code of Professional Responsibility, as amended by Ariz. Sup. Ct. Order of July 23, 1979, effective Nov. 1, 1979; Arkansas Code of Professional Responsibility and Canons of Judicial Ethics as amended by In re Amendments to the Code of Professional Responsibility and Canons of Judicial Ethics, 263 Ark. 948 (1978); Rules of Professional Conduct, Cal. Bus. & Prof. Code foil. § 6076, as amended by Cal. Sup. Ct. Order of Mar. 9, 1979, effective April 1, 1979 and resolution adopted by the Board of Governors of the State Bar of California of June 19, 1979; Colorado Code of Professional Responsibility, as amended by Colo. Sup. Ct. Order of Dec. 29, 1977, effective Jan. 2, 1978; Connecticut Code of Professional Responsibility, as amended by Conn. Super. Ct. Order of April 10, 1978, effective July 1, 1978, and by Conn. Super. Ct. Order of Mar. 30, 1979, effective July 1, 1979; Delaware Lawyer's Code of Professional Responsibility, as amended by Del. Sup. Ct. Order effective Nov. 22, 1977, and Del. Sup. Ct. Order of Aug. 15, 1979, effective Sept. 15, 1979; Code of Professional Responsibility and the Disciplinary Rules of the District of Columbia Court of Appeals, as amended by D.C. Ct. App. Order, effective July 12, 1978; Florida Bar Code of Professional Responsibility, as amended by Fla. Sup. Ct. Order, Case Nos. 55,263 and 54,925, of July 26, 1979; Rules and Regulations for the Organization and Government of the State Bar of Georgia, Ga. Sup. Ct. Order of May 12, 1978; Order Amending the Rules of the Supreme Court of the State of Hawaii, July 29, 1981; Code of Professional Responsibility of the State of Idaho, as amended by Idaho Sup. Ct. Order of May 25, 1978, effective July 1, 1978, and Idaho Sup. Ct. Order of, and effective, Feb. 23, 1979; Illinois Code of Professional Responsibility, adopted June 3, 1980, effective July 1, 1980; Indiana Rules of Professional Responsibility, as amended by Ind. Sup. Ct. Order of Dec. 14, 1977, effective January 1, 1978; Iowa Code of Professional Responsibility for Lawyers, as amended by Iowa Sup. Ct. Orders of Feb. 17, 1978, and May 6, 1980; Kansas Code of Professional Responsibility, Kan. Sup. Ct. Rule No. 225, as amended by Kan. Sup. Ct. Order effective Feb. 28, 1979; Ky. Sup. Ct. R. 3.135; Code of Professional Responsibility of the Louisiana State Bar Association, as amended by La. Sup. Ct. Order of Feb. 7, 1979, effective Dec. 1, 1979; Maine Bar Rules, as amended by Me. Sup. Jud. Ct. Order of May 1, 1979, effective May 15, 1979; Maryland Code of Professional Responsibility, Md. Rule 1230, as amended by Md. Ct. App. Rules Order of Mar. 8, 1978, effective May 1, 1978; Massachusetts Canons of Ethics and Disciplinary Rules Regulating the Practice of Law, as amended by Mass. Sup. Jud. Ct. Order of May 15, 1979, effective July 1, 1979; Mich. Sup. Ct. Orders effective Mar. 15, 1978, and Feb. 2, 1979; Minnesota Code of Professional Responsibilty, as amended by Minn. Sup. Ct. Order No. 46994, effective May 29, 1980; Mississippi Code of Professional Responsibility, as amended by Miss. Sup. Ct. Order of Sept. 19, 1977; Missouri Code of Professional Responsibility, Mo. Sup. Ct. Order of Oct. 24, 1977, effective January 1, 1978, and an Addendum to DR 2–101(B)(2) adopted by the Advisory Committee, Missouri Bar Administration, Nov. 18, 1977, effective Jan. 1, 1978; Montana Canons of Professional Ethics, as amended by Mont. Sup. Ct. Order No. 12500, of June 24, 1980, effective July 1, 1980; Code of Professional Responsibility for Nebraska, as amended by Neb. Sup. Ct. Order of, and effective, May, 1979; Sup. Ct. R. 164, as amended by Nev. Sup. Ct. Order filed April 6, 1979, effective May 6, 1979; N.H. Code of Professional Responsibility, as amended by N.H. Sup. Ct. Order effective March 5, 1980, reprinted in 6 N.H.L. Weekly 429 (1980); Rules Governing the Courts of the State of New Jersey, as amended by N.J. Sup. Ct. Order of Jan. 26, 1979, effective April 1, 1979; N.M. Code of Professional Responsibility, amended by N.M. Sup. Ct. Order reprinted in 17 St. B.N.M. Bull. & Advance Opinions 2481 (1978); 22 NYCRR Part 603, Conduct of Attorneys; N.C. Code of Professional Responsibility, as amended by N.C. Sup. Ct. Orders of Feb. 24, 1978, and Feb. 1979 (amendment to DR 2–102(C)); N.D. Code of Professional Responsibility, as amended by N.D. Sup. Ct. Order effective July 1, 1980; Ohio Code of Professional Responsibility, as amended by Ohio Sup. Ct. Orders effective Nov. 28, 1977, Mar. 13, 1978, Feb. 12, 1979, and June 11, 1979; Code of Professional Responsibility of the Oklahoma Bar Association, amended by Okla. Sup. Ct. Order of, and effective, Jan. 27, 1978; Oregon Code of Professional Responsibility, as amended by Or. Sup. Ct. Order of Jan. 9, 1979; Pennsylvania Code of Professional Responsibility, as amended by Pa. Sup. Ct. Orders of Jan. 16, 1979, June 29, 1979, and July 27, 1979; Supreme Court of the State of Rhode Island and Providence Plantations Provisional Order No. 11, entered Oct. 30, 1979; S.C. Code of Professional Responsibility, as amended by S.C. Sup. Ct. Order Re: Rules of Supreme Court, Rule 32, Code of Professional Responsibility, effective June 1, 1980; S.D. Code of Professional Responsibility, as amended by S.D. Sup. Ct. Order, of Oct. 23, 1979; Tennessee Code of Professional Responsibility, as amended by Tenn. Sup. Ct. Orders In re: Petition for Rule of Court Governing Lawyer Advertising, April 10, 1978, effective April 15, 1978, and In re: Petition of Disciplinary Board of the Supreme Court of Tennessee, Dec. 19, 1979; Rules Governing the State Bar of Texas, as amended by Tex. Sup. Ct. Order of Dec. 13, 1978; Utah Code of Professional Responsibility, as amended by Utah Sup. Ct. Order No. 16347, In re: Application to Allow Advertising by the Electronic Media, May 22, 1979; Vermont Code of Professional Responsibility, as amended by Vt. Sup. Ct. Order of July 15, 1977; Virginia Code of Professional Responsibility, as amended by Va. Sup. Ct. Order of Oct. 3, 1979, effective Jan. 1, 1980; Washington Code of Professional Responsibility, as amended by Wash. Sup. Ct. Order 25700-A-266, of Nov. 9, 1978, effective Jan. 1, 1979; W. Va. Code of Professional Responsibility, as amended by W. Va. Sup. Ct. App. Order of Oct. 18, 1978; Wisconsin Code of Professional Responsibility, as amended by Wis. Sup. Ct. Order of April 30, 1979; Wyoming Code of Professional Responsibility as amended by Wyo. Sup. Ct. Order effective Jan. 1, 1978. (Hereinafter, these rules will be referred to by state name.).Google Scholar

12 See, e.g., Iowa DR 2–101. This is especially ironic in view of the fact that the Bates case has been characterized as placing a high value on consumer information. “The thrust of that [Bates] opinion is strongly in the direction of consumer information and away from the effect such advertising may have on professionalism.” Lovett & Linder, Ltd. v. Carter, C.A. No. 81–0118, at 19 (D.R.I. Sept. 8, 1981). “Bates is not a decision for the benefit of the bar; it is a decision for the benefit of consumers of legal services and it is from their viewpoint that the problem must be approached.” Durham v. Brock, 498 F. Supp. 213, 222 (M.D. Tenn. 1980).Google Scholar

13 433 U.S. at 364.Google Scholar

14 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564 n.6 (1980), citing Bates v. State Bar, 433 U.S. 350, 381 (1977). See also Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 772 n.24 (1976).Google Scholar

15 See, e.g. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See also Oertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974). (“The First Amendment requires that we protect some falsehood in order to protect speech that matters.”).Google Scholar

16 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. at 772 n.24.Google Scholar

17 E.g., the U.S. Supreme Court in Bates, 433 U.S. at 380, points out that “the justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context.” The attributes of commercial speech “may also make inapplicable the prohibition against prior restraints.” Virginia State Bd. of Pharmacy, 425 U.S. at 772 n.24.Google Scholar

18 Virginia State Bd. of Pharmacy, 425 U.S. at 765.Google Scholar

19 Bates, 433 U.S. at 383. The Court explains that the greater hardiness of commercial speech “may make it less necessary to tolerate inaccurate statements for fear of silencing the speaker”.Google Scholar

20 Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973).Google Scholar

21 See, e.g., Virginia State Bd. of Pharmacy, 425 U.S. at 771; Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85 (1977); Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140, 150, 412 N.E.2d 927, 934, 432 N.Y.S.2d 872, 878 (1980), cert, denied, 101 S. Ct. 1733 (1981); Lovett & Under, Ltd. v. Carter, C.A. No. 81–0118, at 17 (D.R.I., Sept. 8, 1981).Google Scholar

22 425 U.S. 748 (1976).Google Scholar

23 Id. at 766.Google Scholar

24 Id.Google Scholar

25 This summary of Virginia Pharmacy is found in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564–65 (1980).Google Scholar

26 See, e.g., Note, Attorney Advertising Over the Broadcast Media, 32 Vand. L. Rev. 755, 760 (1979); Note, Three Years Later: State Court Interpretations of the Attorney's Right to Advertise and the Public's Right to Information, 45 Mo. L. Rev. 562, 564 n. 17 (1980).Google Scholar

27 Virginia State Bd. of Pharmacy, 425 U.S. at 770.Google Scholar

28 431 U.S. 85 (1977).Google Scholar

29 On that point, the Court, id. at 97, quoted the language in Virginia State Bd. of Pharmacy, 425 U.S. at 770, that “It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.”.Google Scholar

30 Id. at 93.Google Scholar

31 Id.Google Scholar

32 431 U.S. 678 (1977).Google Scholar

33 Id. at 701.Google Scholar

34 Id. at 701 n.28. On this point, the Court cited Linmark Associates, Inc. v. Willingboro, 431 U.S. at 96–97.Google Scholar

35 425 U.S. at 773 n.25.Google Scholar

36 433 U.S. 350 (1977).Google Scholar

37 Id. at 365–66 n.17.Google Scholar

38 Id. at 365. Justice Rehnquist had already pointed out in his dissent in Virginia State Bd. of Pharmacy, 425 U.S. at 785, that “if the sole limitation on permissible state proscription of advertising is that it may not be false or misleading, surely the difference between pharmacists' advertising and lawyers' and doctors' advertising can be only one of degree and not of kind.”.Google Scholar

39 Bates, 433 U.S. at 373 n.28.Google Scholar

40 Id.Google Scholar

41 425 U.S. at 771–73.Google Scholar

42 433 U.S. at 384.Google Scholar

43 Id.Google Scholar

44 Id.Google Scholar

45 Id. at 383.Google Scholar

46 Id. at 384.Google Scholar

47 436 U.S. 447, 457 (1978), rehearing denied, 439 U.S. 883.Google Scholar

48 In the same term, the Court also heard In re Primus, 436 U.S. 412 (1978), involving a lawyer's mailing to a potential client. At issue was the disciplinary rule prohibiting solicitation by lawyers. However, since the lawyer was offering the letter's recipient free legal representation by the American Civil Liberties Union, the Court analyzed the case not as a commercial speech case but as a political speech case. The Court said that “[t]his was not in-person solicitation for pecuniary gain” (id. at 422) and noted that for the ACLU“‘litigation is not a technique of resolving private differences’; it is ‘a form of political expression’ and ‘political association.’”Id. at 428 (citations omitted). The Court in Primus held that the ACLU attorney's activities were constitutionally protected since “[w]here political expression or association is at issue, this Court has not tolerated the degree of imprecision that often characterizes government regulation of the conduct of commercial affairs.”Id. at 434. The Court held that in a political speech case, a state could prohibit solicitation only by narrowly drawn rules and only if the solicitation in fact were false, misleading, overbearing, deceptive, or if it invaded privacy or improperly influenced. Id. at 438.Google Scholar

49 436 U.S. at 453.Google Scholar

50 Id. at 461.Google Scholar

51 See, e.g., Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U. Chi. L. Rev. 674 (1958);Comment, Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available, 81 Yale L.J. 1181 (1972).Google Scholar

52 436 U.S. at 462.Google Scholar

53 Id. at 457.Google Scholar

54 Id.Google Scholar

55 Id.Google Scholar

56 Id. at 466.Google Scholar

57 Id. at 449.Google Scholar

58 Id. at 457. The Court stressed this by saying “in-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services, let alone with the forms of speech more traditionally within the concern of the First Amendment.”Id. at 455.Google Scholar

59 Bates, 433 U.S. at 364.Google Scholar

60 436 U.S. at 455. The attorney in Ohralik had provided the two women he contacted with useful information. He had told them, for example, that even though their car had been hit by an uninsured motorist, they could collect for their injuries under the policy covering their car.Google Scholar

61 Justice Marshall, concurring in Ohralik, proposed a standard that would be even more protective of personalized promotion than either the majority's standard or the one I am proposing. Justice Marshall felt “The First Amendment informational interests served by solicitation, whether or not it occurs in a purely commercial context, are substantial, and they are entited to as much protection as the interests we found to be protected in Bates.” Ohralik, 436 U.S. at 474 (Marshall, J., concurring). From his perspective, a greater restriction on in-person solicitation could be justified “only to the degree that dangers which the State has a right to prevent are actuallypresented by conduct attendant to such speech, thus increasing the relative ‘strength of the State's countervailing interest in prohibition.”’ id. at 477. Marshall was able to concur in Ohralik because he felt that the attorney's behavior did present actual danger.Google Scholar

62 See text at notes 56–58 supra.Google Scholar

63 440 U.S. 1 (1979).Google Scholar

64 Rogers v. Friedman, 438 F. Supp. 428, 431 (E.D. Tex. 1977).Google Scholar

65 Friedman v. Rogers, 440 U.S. at 12.Google Scholar

66 Wesley J. Liebeler, The Essence of Chaos: The Supreme Court, Advertising and the First Amendment, Wash. St. B. News, Feb. 1980, at 14, 23.Google Scholar

67 The fact that the Court views trade names as undoubtedly harmful is shown by the statement that “Texas has done no more than require that commercial information about optometrical services ‘appear in such a form … as [is] necessary to prevent its being deceptive.’” Friedman v. Rogers, 440 U.S. at 16, quoting Virginia State Bd. of Pharmacy, 425 U.S. at 772 n.24.Google Scholar

68 Friedman v. Rogers, 440 U.S. at 22 (Blackmun, J., and Marshall, J., concurring in part and dissenting in part).Google Scholar

69 Id. at 22–23.Google Scholar

70 Id. at 14.Google Scholar

71 It is interesting to note that the Texas act had no requirement that the name of all partners be used to identify an optometric office; under the Court's logic, then, the public might be misled into thinking the only optometrists in the office were those whose names were part of the office name.Google Scholar

72 Friedman v. Rogers, 440 U.S. at 12 n.11.Google Scholar

73 Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. at 97, quoting Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).Google Scholar

74 Bates, 433 U.S. at 375.Google Scholar

75 The Court does so despite economic surveys showing the great benefits to the public of such an approach. A 1972 study of eyeglass prices, which controlled for factors such as quality, found that the average price for a pair of glasses in states that allowed eyeglass price advertising was $6.70 lower than the price in states that prohibited it. Benham, Lee, The Effect of Advertising on the Price of Eyeglasses, 15 J.L. & Econ. 337 (1972).A study of retail drugs also found lower prices in states where advertising was allowed. Cady, Advertising Restrictions and Retail Prices, 16 J. Advertising Research 27 (1976).Google Scholar

76 Friedman v. Rogers, 440 U.S. at 13.Google Scholar

77 Bates, 433 U.S. at 378–79.Google Scholar

78 In re R.M.J., 609 S.W.2d 411, 412 (Mo. 1981).Google Scholar

79 Liebeler, supra note 66, at 22.Google Scholar

80 Note, Attorney Advertising Over the Broadcast Media, 32 Vand. L. Rev. 755, 756 (1979);Comment, Regulating Commercial Speech: A Conceptual Framework for Analysis, 32 Baylor L. Rev. 235, 236 (1980). The court in Durham v. Brock, 498 F. Supp. 213, 219 (M.D. Tenn. 1980), also points out: “The court did not make clear the test employed to find that the Bates ad was not false or misleading or the standards against which it was held” (footnote omitted).Google Scholar

81 447 U.S. 557(1980).Google Scholar

82 Id. at 562, quoting Linmark Associates Inc. v. Township of Willingboro, 431 U.S. 85, 92 (1977).Google Scholar

83 Id., citing Bates, 433 U.S. at 374.Google Scholar

84 Id. at 566.Google Scholar

85 Id. at 570.Google Scholar

86 Id. at 571.Google Scholar

87 The use of the least restrictive alternative has practical benefits as well. “If the rules are unnecessary in terms of the court's consumer protection objectives, they may actually be counterproductive in terms of the delivery of legal services objective [i.e., assuring access of people to lawyers]. Also, unnecessary rules may result in unnecessary enforcement expense.”Hellman, Lawrence K., The Oklahoma Supreme Court's New Rules on Lawyer Advertising: Some Practical, Legal, and Policy Questions, 31 Okla. L. Rev. 509, 527 (1978). Hellman advocates that the limited resources set aside for code enforcement “should be conserved to deal with violations that threaten or actually result in abuses of clients.”Id. at 565.Google Scholar

88 In other instances, courts that have attempted to apply Central Hudson have done so incorrectly. The U.S. District Court for the Southern District of Iowa, in Bishop v. Committee on Professional Ethics & Conduct, Civ. No. 81–47-D, at 11 (S.D. Iowa, Aug. 20, 1981), e.g., quotes the Central Hudson statement, 447 U.S. at 563, that the “government may ban forms of communication more likely to deceive the public than to inform it.” In making that statement, the U.S. Supreme Court in Central Hudson had cited two cases where the communication at issue was not held to be as highly protected as was lawyer advertising—namely, Friedman, dealing with trade names, and Ohralik, dealing with in-person solicitation. These were both cases where a particular form of communication, not the content, was at issue. However, the Iowa district court erroneously uses this standard in its analysis of content rules and upholds the prohibition of particular types of content of advertisement on the slender thread that the content may have some potential for misleading. See, e.g., id. at 9. This misuse leads to some startling conclusions. The court holds, e.g., that, since it might be misleading, the inclusion in an advertisement of an attorney's statement of his or her views on a matter of public interest is not protected by the First Amendment. Id. at 12. The court does not consider that such speech might have an even higher degree of protection than normal advertising content. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964), dealing with the constitutional protection of an advertisement that expressed opinions on issues of public interest and solicited money for a legal defense fund.Google Scholar

89 609 S.W.2d at 412.Google Scholar

90 Moreover, nothing in the professional service cases (Bates, Ohralik, Primus, and Friedman) suggests that the regulation of advertising of services is inherently sufficiently different from product advertising to require a different level of regulation.Google Scholar

91 Such actions are taken pursuant to the FTC's authorization under the Federal Trade Commission Act to regulate commercial activity to protect the consumer from unfair or deceptive acts or practices. 15 U.S.C. §§ 41–58 (1976 & Supp. III 1979). See, e.g., Feil v. FTC, 285 F.2d 879 (9th Cir. 1960).Google Scholar

92 In addition, in some instances, the further regulations apply not just to mass media communications. In California, for example, the provisions in DR 2–101 govern all forms of dissemination of public communications—from speeches to advertisements.Google Scholar

93 The ABA Model Code of Professional Responsibility DR 2–101(B) provides that the attorney may advertise the following things:Google Scholar

(1) Name, including name of law firm and names of professional associates; addresses and telephone numbers;Google Scholar

(2) One or more fields of law in which the lawyer or law firm practices, a statement that practice is limited to one or more fields of law, or a statement that the lawyer or law firm specializes in a particular field of law practice, to the extent authorized under DR 2–105;Google Scholar

(3) Date and place of birth;Google Scholar

(4) Date and place of admission to the bar of state and federal courts;Google Scholar

(5) Schools attended, with dates of graduation, degrees and other scholastic distinctions;Google Scholar

(6) Public or quasi-public offices;Google Scholar

(7) Military service;Google Scholar

(8) Legal authorships;Google Scholar

(9) Legal teaching positions;Google Scholar

(10) Memberships, offices, and committee assignments, in bar associations;Google Scholar

(11) Membership and offices in legal fraternities and legal societies;Google Scholar

(12) Technical and professional licenses;Google Scholar

(13) Memberships in scientific, technical and professional associations and societies;Google Scholar

(14) Foreign language ability;Google Scholar

(15) Names and addresses of bank references;Google Scholar

(16) With their written consent, names of clients regularly represented;Google Scholar

(17) Prepaid or group legal services programs in which the lawyer participates;Google Scholar

(18) Whether credit cards or other credit arrangements are accepted;Google Scholar

(19) Office and telephone answering service hours;Google Scholar

(20) Fee for an initial consultation;Google Scholar

(21) Availability upon request of a written schedule of fees and/or an estimate of the fee to be charged for specific services;Google Scholar

(22) Contingent fee rates subject to DR 2–106(C), provided that the statement discloses whether percentages are computed before or after deduction of costs;Google Scholar

(23) Range of fees for services, provided that the statement discloses that the specific fee within the range which will be charged will vary depending upon the particular matter to be handled for each client and the client is entitled without obligation to an estimate of the fee within the range likely to be charged, in print size equivalent to the largest print used in setting forth the fee information;Google Scholar

(24) Hourly rate, provided that the statement discloses that the total fee charged will depend upon the number of hours which must be devoted to the particular matter to be handled for each client and the client is entitled to without obligation an estimate of the fee likely to be charged, in print size at least equivalent to the largest print used in setting forth the fee information;Google Scholar

(25) Fixed fees for specific legal services, the description of which would not be misunderstood or be deceptive, provided that the statement discloses that the quoted fee will be available only to clients whose matters fall into the services described and that the client is entitled without obligation to a specific estimate of the fee likely to be charged in print size at least equivalent to the largest print used in setting forth the fee information.Google Scholar

American Bar Association, Model Code of Professional Responsibility and Code of Judicial Conduct (Chicago: American Bar Association, 1980). Thirty-one states have a similar approach, regulating advertising content by listing the types of information that are appropriate to an advertisement. One of these states, Illinois, provides for a little leeway by including as one of its listed categories “other information about the lawyer, the lawyer's practice, or the types of legal matters in which the lawyer will accept employment, which a reasonable person might regard as relevant in determining whether to seek the lawyer's services.” III. DR. The other 30 states with regulatory-style rules, however, do not allow the advertisement of any information beyond that listed. Of these states, 9 have adopted the ABA list of 25 permissible types of information with no more than minor changes in language: Alaska DR 2–101(B)(1)-(25); Ariz. DR 2–101(B)(1)-(25); Ark. DR 2–101(B)(1)-(25); Del. DR 2–101(B)(1)-(25); Neb. DR 2–101(B)(1)-(25); N.D. DR 2–101(B)(1)-(25); Wash. DR 2–101(B)(1)-(26); W. Va. DR 2–101(B)(1)-(25) (additionally, it gives examples of specific legal services); and Wyo. DR 2–101(B)(1)-(25). Fifteen states have adopted a modified version of the list: Colo. DR 2–101(B) (eliminates ABA DR 2–101(B)(6)-(11), (13), (15), (16), and modifies (21), (22), and (25)); Conn. DR 2–101 (B)(eliminates aba DR 2–101(B)(7), (11), (13), (15), (16), (24)); Ga. Std. 5(B) (eliminates aba DR 2–101(B)(2), (6), (13), (16), (17), (22)-(24) and modifies (10) and (25)); Ind. DR 2–101(B) (eliminates aba DR 2–101(B)(16)); Iowa DR 2–101(B) (modifies (1), (17), and provisions dealing with fee information); Kan. DR 2–101(B) (provides that the information described in (6), (11), and (16) shall not be published except in a reputable law list); Mont. DR 2–101(B) (eliminates ABA DR 2–101(B)(12)); Nev. Sup. Ct. Rule 164 (eliminates language in ABA DR 2–101(B)(2) authorizing advertising of specialization, eliminates ABA DR 2–101(B)(3)-(13), (15)-(17)); N.M. DR 2–101(B) (does not allow information in ABA DR 2–101(B)(15) and (16) in print media other than law list or legal directories, allows the time alloted for an initial consultation to be advertised along with price); N.C. DR 2–101(B) (does not allow scholastic distinctions to be advertised in its equivalent of ABA DR 2–101(B)(5), eliminates ABA DR 2–101(B)(6), (7)-(13), (15), and (17), and adds examples of specific legal services in its equivalent to ABA DR 2–101(B)(25)); Ohio DR 2–101 (B) (can advertise age, but not date and place of birth as allowed under ABA DR 2–101(B)(3); information in ABA DR 2–101(B)(16) and (17) can be advertised only in law directories and law lists; eliminates ABA DR 2–101(B)(23)); S.C. DR 2–101(B) (eliminates ABA DR 2–101(B)(6), (7), (8), (11), (13) and modifies (23), (24) and (25) so as not to mandate size of print necessary for disclaimer); Tenn. DR 2–101(B) (modifies ABA DR 2–101(B)(1) to require that address and telephone number be by numerical designation only, to allow the information in (16) generally in approved law lists only, to expand (20) to allow for advertisement not only of a fee for an initial consultation but also of the absence of a fee and of the time limit, if any, on the consultation); Utah DR 2–101(B) (eliminates ABA DR 2–101(B)(23)); Vt. DR 2–101(D) (eliminates ABA DR 2–101(B)(13), (17), and (23), but expands to allow the advertisement of “posts of honor” and some fee information that the aba rule doesn't). The remaining 6 states have created their own lists, with substantially fewer permissible items of information: Ala. DR 2–102(A); Ky. Rule 3.135; Miss. DR 2–102(A)(8); Mo. DR 2–101(B); Okla. DR 2–101(B); and R.I. Sup. Ct. Provisional Order No. 11, Oct. 30, 1979).Google Scholar

94 The committee that drafted ABA DR 2–101 described the regulatory approach as follows:. It would specifically authorize certain prescribed forms of lawyer advertising if approved by state authorities. It would seek in advance to channel commercial announcements but would rely on “after the fact” enforcement to discipline persons violating the regulation. It would follow the basic approach of several federal regulatory agencies, such as the Food & Drug Administration and the Securities and Exchange Commission. Task Force on Lawyer Advertising, ABA Board of Governors Report 177B, at 6 (1977), reprinted in Lori B. Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation 91 (rev. ed. Chicago: American Bar Association, 1981).Google Scholar

95 The directive approach operates as follows: “It would allow publication of all information not ‘false, fraudulent, misleading or deceptive,’ and provides guidelines for the determination of improper advertisements, which would be subject to ‘after the fact’ discipline by state authorities.”Id. at 7.Google Scholar

96 Cal. DR 2–101; D.C. DR 2–101; Fla. DR 2–101; Hawaii DR 2–101; Idaho DR 2–101; La. DR 2–101; Me. Rule 3.9; Md. DR 2–101; Mass. DR 2–101; Mich. Sup. Ct. Orders effective Mar. 15, 1978, and Feb. 2, 1979; Minn. DR 2–101; N.H. DR 2–101; N.J. DR 2–101; N.Y. DR 2–101; Or. DR 2–101; Pa. DR 2–101; S.D. DR 2–101; Va. DR 2–101; Wis. Sup. Ct. Order of April 30, 1979.Google Scholar

97 See, e.g., D.C. DR 2–101(B)(5).Google Scholar

98 See, e.g., N.H. DR 2–101(C)(11).Google Scholar

99 Commentary, Public and Professional Assessment of the Nebraska Bar, 55 Neb. L. Rev. 57 (1975) (examples of how lawyers and the public disagree on what constitutes a legal problem).Google Scholar

100 Missouri Bar, Missouri Prentice-Hall Survey: A Motivational Study of Public Attitudes and Law Office Management 36 (n.p.: Missouri Bar, 1963) (hereinafter, Missouri Survey). This theory is also set forth in Carlin, Jerome E. & Howard, Jan, Legal Representation and Class Justice, 12 U.C.L.A.L. Rev. 381, 423–24 (1965), and Stein, Barbara A., Legal Services and the Middle Class, 53 N.D.L. Rev. 573, 580 (1977).Google Scholar

101 Curran, supra note 8, at 261.Google Scholar

102 See note 93 supra. However, such information apparently would be allowable in Illinois since it is arguably within the provision “other information about the lawyer, the lawyer's practice, or the types of legal matters in which the lawyer will accept employment, which a reasonable person might regard as relevant in determining whether to seek the lawyer's services.” Ill. DR 2–101(a)(8). An advertisement explaining to the consumer how to identify legal problems would, however, be permissible under the rules in the 19 jurisdictions that have a directive rule generally allowing any information unless it is false, fraudulent, misleading, or deceptive. See note 96 supra.Google Scholar

103 Already, an informal disciplinary complaint has been filed against a group of lawyers who, in a state with regulatory style rules, included information in their advertisement to help women identify whether they had potential causes of action arising from the use of an allegedly defective intrauterine device known as the Dalkon Shield. The disciplinary authorities are charging the attorneys with violating the advertising rule by including information not specifically on the list.Google Scholar

104 Connecticut Consulting Group, ABA Commission on Advertising, Interim Presentation (manuscript, Mar. 1980).Google Scholar

105 ABA Formal Opinion 121 (Dec. 14, 1934); ABA Formal Opinion 307 (May 26, 1962).Google Scholar

106 See note 96 supra.Google Scholar

107 See note 93 supra.Google Scholar

108 The public perception that we are swamped in lawsuits is discussed in two recent books, Marlene Adler Marks, The Suing of America: Why and How We Take Each Other to Court (New York: Seaview Books, 1981), and Jethro K. Lieberman, The Litigious Society (New York: Basic Books, 1981).Google Scholar

109 Helen Kaiser, Lawyer Ads: A Lure to Bankruptcy? Pitt. Press, Dec. 1, 1980, § B, at 1.Google Scholar

110 Andrews, supra note 94, at 79.Google Scholar

111 433 U.S. at 376. Similarly, Morgan has pointed out, “If a person has a valid cause of action, surely there is neither a public interest nor a client interest in a conspiracy of silence among lawyers not to tell him about it.”Morgan, Thomas D., The Evolving Concept of Professional Responsibility, 90 Harv. L. Rev. 702, 722 n. 74 (1977).Google Scholar

112 436 U.S. at 445 (Rehnquist, J., dissenting) (citations omitted).Google Scholar

113 433 U.S. at 375 n.31.Google Scholar

114 Id.Google Scholar

115 Central Hudson, 477 U.S. at 564–65.Google Scholar

116 See note 96 supra.Google Scholar

117 See note 93 supra.Google Scholar

118 R.I. Sup. Ct. Provisional Order No. 11(8).Google Scholar

119 Mo. DR 2–101(B).Google Scholar

120 The court in Durham v. Brock, 498 F. Supp. 213, 225 (M.D. Tenn. 1980), points out that because “large metropolitan firms tend to represent major corporations and wealthy individuals … the firms which are perhaps best known are of the least usefulness to the individual legal consumer.”.Google Scholar

121 See note 96 supra.Google Scholar

122 See note 93 supra.Google Scholar

123 ABA Model Code DR 2–101(B)(1) allows the advertisement of the names of professional “associates,” but the term associates has been interpreted as denoting a certain employer-employee relationship among lawyers. For that reason, an ABA ethics opinion stated that the term associates would be misleading if used where the lawyers involved share responsibility and liability (and thus are actually partners) or where two lawyers share a suite of offices and some costs but actually practice separately, ABA Formal Opinion 310 (June 20, 1963). According to a 1965 Oregon Supreme Court decision, “The word ‘Associates’ has a variety of meanings. Principally through custom the word when used on the letterheads of law firms has come to be regarded as describing those who are employees of the firm. Because the word has acquired this special significance in connection with the practice of the law the use of the word to describe lawyer relationships other than that of employer-employee is likely to be misleading.”In re Sussman, 241 Or. 246, 248, 405 P.2d 355, 356 (1965). In states following the directive approach, primarily prohibiting information that is false, fraudulent, misleading, or deceptive, the inclusion of the names of nonlawyer associates in advertisements would appear to be permissible so long as there is no implication that they are lawyers or have a professional training beyond what they actually have. See note 96 supra.Google Scholar

124 Foley v. Alabama State Bar, 481 F. Supp. 1308, 1310 (N.D. Ala. 1979). The offer in an advertisement of free parking was said to violate the rule against giving a person valuable consideration in return for legal business.Google Scholar

125 Curran, supra note 8, at 229.Google Scholar

126 Id. at 230. See also Kent A. Wilson, Nebraskans, Lawyers, & the Law: A Two-Year Analysis 32 (Oct. 9, 1980, manuscript—on file with the Nebraska State Bar Association) (32 percent of the respondents disagreed with the statement that lawyers were good at keeping clients informed).Google Scholar

127 Virginia Bar Association, A Survey of Adult Virginians Regarding Attitudes Toward Lawyers and the Legal Profession, table 10 (Sept. 1975), cited in Research Group, Inc., Questions Relating to Attorney Advertising: A Survey of Research and Experience, at 1–27 (Virginia State Bar Committee on Lawyer Advertising, Oct. 20, 1978). But see Kasulis, Jack & Humphreys, Marie Adele, Legal Services and the Oklahoma Public: A Survey, 50 Okla. B.J. 2491, 2493 (1979) which reports that only 11 percent of the respondents disagreed with the statement, “Lawyers generally explain in terms their clients understand what the client's legal problem is and how it can be solved.”.Google Scholar

128 See note 93 supra.Google Scholar

129 The potential for misleading was discussed by a dissenting Missouri Supreme Court justice in In re R.M.J. with relation to the attorney's inclusion in his ad of the information that he was admitted to practice before the U.S. Supreme Court:. Although the fact of being admitted to the Supreme Court might impress a person looking for a lawyer, the question arises: does such information really help the consumer in obtaining needed legal services or is it more a device to seize his attention and to convey the idea that one who is admitted to the United States Supreme Court is per se a better lawyer?… I doubt that informational value gained by the consumer by advertising the isolated fact of admission to the United States Supreme Court justifies the risk of the false impression that such advertising may convey. In re R.M.J., 609 S.W.2d 411, 416 (Mo. 1981).Google Scholar

130 Ill. DR 2–101(a)(8).Google Scholar

131 433 U.S. at 374–75.Google Scholar

132 Mo. DR 2–101(B).Google Scholar

133 433 U.S. at 370–71 n.23 (citing ABA, Legal Services & the Public, 3 Alternatives 15 (Jan. 1976)).Google Scholar

134 Okla. DR 2-101(B)(8).Google Scholar

135 The following states allow price advertisements only for the enumerated routine services. Del. DR 2–101(C)(1)–(9) (uncontested divorces; uncontested adoptions; uncontested personal bankruptcies; changes of name; deeds, bonds, mortgages, and certain security agreements; promissory notes; powers of attorney; bills of sale; and uncomplicated wills); Ga. Std. 5(B)(14)(a)–(e) (certain uncontested adoptions; uncontested name changes; certain uncontested divorces; certain voluntary no-asset bankruptcies; debt collection); Iowa DR 2–101(D)(1)-(12) (abstract examinations and title opinions not including services in clearing title; uncontested dissolutions of marriage involving no disagreement concerning custody of children, alimony, child support, or property settlement; wills leaving all property outright to one beneficiary or one class of beneficiaries; income tax returns for wage earners; uncontested personal bankruptcies; changes of name; simple residential deeds; residential purchase and sale agreements; residential leases; residential mortgages and notes; powers of attorney; bills of sale; Miss. DR 2–102(A)(8) (uncontested divorces; uncontested adoptions; uncontested personal bankruptcies; changes of name; deeds, promissory notes, security agreements; and deeds of trust; powers of attorney; individual income tax returns; bills of sale; wills; and initial conference with clients); Mo. DR 2–101(B)(10) (uncontested dissolutions of marriage; uncontested adoptions; uncontested personal bankruptcies; uncomplicated changes of name; simple warrant or quitclaim deeds; simple deeds of trust; simple promissory notes; individual Missouri or federal income tax returns; simple powers of attorney; and simple wills); R.I. Sup. Ct. Provisional Order No. 11(3) (uncontested divorces, simple adoptions, uncontested personal bankruptcies, changes of name, simple residential deeds, residential purchase and sale agreements, residential leases, residential mortgages and notes, powers of attorney, individual income tax returns, simple wills, bills of sale, collections, and charge for an initial conference with a client). As can be seen, some states have taken such a restrictive approach to the type of routine services a lawyer may advertise that they do not even allow advertisement of some of the services mentioned in the Bates ad. The advertisement at issue in the Bates case mentioned, and quoted prices for, the following services: uncontested divorces and legal separations, adoption proceedings, individual and joint uncontested bankruptcy proceedings, and name changes. 433 U.S. at 385 app. Yet Iowa, e.g., does not allow the mention of uncontested adoption in lawyer advertisements. In addition, in some states matters are considered routine that are not so considered in other states. In Georgia, the preparation of a “simple will” is apparently not so simple since it is not included among the routine legal services of which advertising is permitted.Google Scholar

136 The Court noted: “Economic considerations suggest that advertising is a more significant force in the marketing of inexpensive and frequently used goods and services with mass markets, than in the marketing of unique products or services.” 433 U.S. at 372 n.25.Google Scholar

137 See text and note at 177 infra.Google Scholar

138 A model for the disclaimer is already provided by Pa. DR 2–105(B) and Tenn. DR 2–101(B) (2), which require that lawyers who publicly communicate that they limit their practice include a disclaimer stating that the lawyer is not certified or recognized as a specialist. The Tennessee rule even provides the language for the statement: “[I] [We] [This law firm] [The legal clinic] neither assert[s] [imply] [implies] or [claim[s]] any particular knowledge or expertise above that of other lawyers in this community.” Ohio also requires a disclaimer, but allows only a more limited communication of the nature of a lawyer's practice. In Ohio, if a lawyer advertises other than routine services, he or she must include in the advertisement a statement that he or she is not designated or certified as a specialist. Ohio DR 2–101(B)(2)(b).Google Scholar

139 See, e.g., Mo. DR 2–105(A).Google Scholar

140 See, e.g., Me. Rule 3.8.Google Scholar

141 See, e.g., Or. DR 2–105.Google Scholar

142 See, e.g., Mo. DR 2–105(A).Google Scholar

143 See, e.g., Or. DR 2–105.Google Scholar

144 See, e.g., Mo. DR 2–105(A).Google Scholar

145 See, e.g., Del. DR 2–105(A).Google Scholar

146 See, e.g., Alaska DR 2–105(A) and Ariz. DR 2–105(A).Google Scholar

147 See, e.g., Me. Rule 3.8 and S.D. DR 2–105(A).Google Scholar

148 Alaska DR 2–105(A)(2); Ariz. DR 2–105(A)(2); Conn. DR 2–105(A)(5); Fla. DR 2–105(1); Iowa DR 2–105(A)(2) and (3); Mo. Addendum to DR 2–101(B)(2); Mont. DR 2–105(A)(2); Nev. DR 2–105(A)(2); N.M. Rule 2–105(C); N.C. DR 2–105(B); N.D. DR 2–105(A)(2); Okla. DR 2–105(A)(4); S.C. DR 2–105(A)(2); Utah DR 2–105(B); W. Va. DR 2–105(A)(2); and Wyo. DR 2–105(A)(2).Google Scholar

149 Mo. Bar Advisory Committee Addendum to Mo. DR 2–101(B)(2).Google Scholar

150 Bankruptcy, antitrust, labor, and criminal.Google Scholar

151 In his brief, R.M.J. says that he used the term “Personal Injury,” rather than the then-approved term “Tort Law” because it is “accurate, descriptive, and generally understood.” In addition, he argues that the currently approved term “Negligence Law”“in this era of strict liability, does not accurately describe the range of actions for personal injury.” Appellant's Brief, In re R.M.J., No. 80–1413, at 27 (U.S. Sup. Ct. 1980).Google Scholar

152 This is based on the assumption, of course, that people who hear the word specialist used with respect to lawyers understand it to mean certified by some official body in a particular field. Since this is the meaning the term generally has in the medical field, where consumers have heard it for years, this is an understandable assumption. So even in states without programs, lawyers can probably constitutionally be prohibited from saying they are specialists or recognized specialists.Google Scholar

153 Apparently, for example, Nevada, West Virginia, and Wyoming have not yet adopted designation lists.Google Scholar

154 Utah DR 2–105(B).Google Scholar

155 Morgan, supra note 111, at 718.Google Scholar

156 Id.Google Scholar

157 Such a disclaimer has already been dealt with at the federal district court level. In Durham v. Brock, 498 F. Supp. 213 (M.D. Term. 1980), the court held that prohibiting an attorney from listing routine legal services without prices or listing his areas of practice was unconstitutional. The court noted that listing one's area of practice or the availability of routine legal services “is information which is valuable to the consumer. It is a practical reality of the legal profession that not all lawyers practice all law.”Id. at 225. The purported state interest involved was the prevention of deceptive-ness since “[s]uch statements are calculated to convey to the lay public the impression that the lawyer is a specialist and, therefore possesses particular expertise in the advertised field.”Id. at 223, quoting In re Petition for Rule of Court Governing Lawyer Advertising, 564 S.W.2d 638, 645 (Tenn. 1978). However, the court held that the Tennessee rule prohibiting all nature of practice information except that of routine legal services with prices was not the least restrictive approach. The court held:. “There are many ways in which deception in a facially truthful advertisement may be cured short of total prohibition…. Certainly a lawyer's advertisement which stated that his practice was limited to domestic relations but which was accompanied by a warning or disclaimer that no particular expertise above that of the general legal community was asserted or implied would not mislead a consumer as to the quality of the legal services being offered.”Id. at 225. (It is interesting to note that although this Tennessee case was decided before Central Hudson, it, too, advocated a least-restrictive-alternative approach. It did so on the basis of language in Virginia Pharmacy, including the language that the First Amendment makes the choice between the dangers of suppressing information and the dangers of its misuse. Id. at 224 n.20.). However, the court in Lovett & Linder, Ltd. v. Carter, C.A. No. 81–0118 (D.R.I., Sept. 8, 1981), upheld limitations on nature of practice information and rejected the possibility of a disclaimer. The court pointed out that a listing of area of practice is misleading: “A lay reader and even experts in other professions are expected to conclude that the attorney is especially qualified in the areas of law mentioned.” Slip op. at 24–25. In the ad at issue in the Rhode Island case, the law firm had listed its areas of practice and stated, “We make no claim of expertise or specialization in these matters.”Id. at 4. Although such a disclaimer would appear to allay the potential for deception, the court found the ad with the disclaimer to be “even more pernicious” than an ad without one because “it deliberately states an untruth, i.e., lack of expertise in areas in which the lawyer believes that he or she is a qualified expert.”Id. at 25. In a very tenuous bit of reasoning, the court implies that the appearance of an attorney in court arguing, e.g., a personal injury case is a claim of expertise in that field and, thus a disclaimer, “We make no claim on expertise or specialization in these matters,” is untrue. Id. at 10. However, the court's logic is confounded at best. Since all lawyers are licensed to practice in all areas of law, the appearance of an attorney in court on a given matter in no way indicates that the attorney is holding himself or herself out as a specialist in the type of case at issue. Moreover, the court overlooks the differences between considering oneself an expert, being an expert, and holding oneself out as an expert. Even an expert (or one who considered oneself an expert) in an area of law could truthfully state in an advertisement that he or she was making no claim of expertise.Google Scholar

158 See, e.g., Hawaii DR 2–105; D.C. DR 2–105(B); Mass. DR 2–105(B); NJ. DR 2–105(A)(2); Va. DR 2–104(B). The Delaware rule goes one step further by explaining what type of nature of practice information would be considered truthful. Although under the Delaware rule lawyers may list the areas they practice in or engage in without further restrictions, if they say that they limit their practices to certain areas, they must spend 25 percent or more of their time in that area and must follow certain procedures to let the grievance committee know they are in compliance with that rule. Del. DR 2–105(A)(2). In addition, their public communications about the limitation of their practices must state that they are not certified or recognized as specialists in the areas of practice listed. Id.Google Scholar

159 433 U.S. at 370.Google Scholar

160 Curran, supra note 8, at 231Google Scholar

161 Id.Google Scholar

162 James E. Haefner, Advertising Effectiveness Study Prepared for the Illinois Bar Association (April 4, 1977); Wilson, supra note 136, at 31, 35 (82 percent of respondents felt most lawyers charge more for their services than the services are worth); John Thomason, What the Public Thinks of Lawyers, 46 N.Y. St. B.J. 151, 154, (1974) (nearly half the North Dakota respondents who had not consulted a lawyer said uncertainty about cost was a primary reason).Google Scholar

163 Kasulis & Humphreys, supra note 127, at 2492.Google Scholar

164 Id.Google Scholar

165 Conn. DR 2-101(B).Google Scholar

166 Ohio DR 2–101(B), Utah DR 2–101(B), and Vt. DR 2–101(D).Google Scholar

167 Information about contingency fees is not included in the lists of permissible information in Ala. DR 2–102(A)(7)(b); Colo. DR 2–101(B); Ga. Std. 5(B); Ky. Rule 3.135; Miss. DR 2–102(A)(8); Mo. DR 2–101(B); Okla. DR 2–101(B); and R.I. Sup. Ct. Provisional Order No. 11(3).Google Scholar

168 Project, supra note 9, at 155.Google Scholar

169 E.g., some states that have based their lawyer advertising rules in general on the aba model have stricken the provision (aba Model Code DR 2–101(B)(17)) that allows the communication of information about the lawyer's participation in a prepaid plan. See, e.g., Ga. Std. 5(B); Nev. Sup. Ct. R. 164(2); N.C. DR 2–101(B); Vt. DR 2–101(D).Google Scholar

170 433 U.S. at 385.Google Scholar

171 Vt. DR 2–101(D)(5).Google Scholar

172 Under La. DR 2–101(F), advertising or other publicity by lawyers may not make any comment as to the reasonableness of the fees for services proposed. Mississippi State Bar Ethics Opinion No. 44 (Sept. 16, 1977) also provides that no reference may be made to the reasonableness of the fee to be charged.Google Scholar

173 Tenn. DR 2–102(E).Google Scholar

174 Iowa DR 2–101(A) had provided that a lawyer must “avoid all subjective characterizations of his rates or fees, such as, but not limited to, ‘cut rate’, ‘lowest’, ‘reasonable’, ‘moderate’, ‘very reasonable’, ‘give away’, ‘below cost’, [and] ‘special’.” However, in an attorney's recent challenge of the Iowa rule, in Bishop v. Committee on Professional Ethics & Conduct, Civ. No. 81–47-D. (S.D. Iowa, Aug. 20, 1981), the court held that “DR 2–101(A), insofar as it prohibits plaintiff's verifiable truthful use of restrained adjectives characterizing his fees … violates his First Amendment right of commercial speech.”Id. at 10. The court did hold that certain adjectives such as “cut-rate,”“lowest,”“give-away,”“below cost” and “special” could be prohibited due to their high potential to mislead. Id.Google Scholar

175 See, e.g., D.C. DR 2–101(B)(5); Fla. DR 2–101(B)(6); Hawaii DR 2–101(B)(6); Idaho DR 2–101(B)(6); La. DR 2–101(F); N.H. DR 2–101(D); N.J. DR 2–101(B)(5); S.D. DR 2–101(B)(6).Google Scholar

176 R.I. Sup. Ct. Provisional Order No. 11(3).Google Scholar

177 In addition, other provisions of the code protect against misleading conduct on the part of attorneys, and thus would cover misleading advertising. For example, ABA Model Code DR 1–102(A) (4) provides that attorneys shall not “[e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Hellman, supra note 87, at 538, argues that an advertising rule against bait-and-switch tactics is unnecessary, since such actions are already prohibited whether or not they are done by an advertising lawyer. “Whenever a person walks in off the street and requests a routine legal service, such as a standard will, the lawyer is in a position to disparage the less expensive service and switch the client to a more expensive transaction than the client's needs require…. Surely the [court] does not view such behavior as unpunishable under the Code because it does not involve advertising.”.Google Scholar

178 Ala. DR 2–101(A); Alaska DR 2–101(A); Ariz. DR 2–101(A); Ark. DR 2–101(A); Colo. DR 2–101(A); Conn. DR 2–101(A); Del. DR 2–101(A); D.C. DR 2–101(C)(4); Fla. DR 2–101(C)(6); Ga. Std. 5(A) (a lawyer may not use a self-laudatory statement to attract lay clients); Idaho DR 2–101(C) (6); Ind. DR 2–101(A); Iowa DR 2–101(A); Kan. DR 2–101(A); Ky. Rule 3.135; La. DR 2–101(C); Mo. DR 2–101(A); Mont. DR 2–101(A); Neb. DR 2–101(A); Nev. Sup. Ct. Rule 1640); N.J. DR 2–101(C)(4); N.M. DR 2–101(A); N.Y. DR 2–101(B); N.C. DR 2–101(A); N.D. DR 2–101(A); Ohio DR 2–101(A); Okla. DR 2–101(A); S.C. DR 2–101(A); S.D. DR 2–101(C)(6); Tenn. DR 2–101(A); Utah DR 2–101(A); Vt. DR 2–101(A); Wash. DR 2–101(A); W. Va. DR 2–101(A); and Wyo. DR 2–101(A).Google Scholar

179 Fla. DR 2–101(C)(6); Ga. Std. 5(C)(2); (no puffery in broadcast commercials); Idaho DR 2–101(C)(6); La. DR 2–101(C); N.H. DR 2–101(C)(10); N.M. DR 2–101(D)(2); N.Y. DR 2–101(B); S.C. DR 2–101(A)(2)(F); and S.D. DR 2–101(C)(6).Google Scholar

180 Note 93 supra. In addition, some regulatory rules specifically state that a lawyer may not make quality representations. Ala. DR 2–102(A)(7)(C); Iowa DR 2–101(A); N.M. DR 2–101(A); and R.I. Sup. Ct. Provisional Order No. 11(4). The Iowa rule prohibiting statements as to quality was upheld in Bishop v. Committee on Professional Ethics & Conduct, Civ. No. 81–47-D (S.D. Iowa, Aug. 20, 1981). Although the South Carolina rule is a regulatory-style rule, and quality representations do not appear as a permissible item on the list, S.C. DR 2–101(A((2)(d) states that a lawyer may not make a representation or implication as to quality “which is not susceptible of reasonable verification by the public.”.Google Scholar

181 Ala. DR 2–102(A)(7)(f).Google Scholar

182 D.C. DR 2–101(C)(1); Fla. DR 2–101(C)(2); Hawaii DR 2–101(C)(2); Idaho DR 2–101(C)(2); La. DR 2–101(C)(1) and (2); N.H. DR 2–101(C)(6); N.J. DR 2–101(C)(1); N.M. DR 2–101(A); Or. DR 2–101(A)(3)(a); and S.C. DR 2–101(A)(2)(b). Similarly, a California board of governors resolution dated June 19, 1979 (incorporated into the disciplinary rules as a result of Cal. DR 2–101(D)), prohibits communications which contain guarantees, warranties, or predictions regarding the result of legal action.Google Scholar

183 Cal. DR 2–101(D), incorporating a board of governors resolution dated June 19, 1979, Std. 2; D.C. DR 2–101(C)(2); Fla. DR 2–101(C)(3); Idaho DR 2–101(C)(3); La. DR 2–101(C)(3); N.H. DR 2–101(C)(7); N.J. DR 2–101(C)(2); N.M. DR 2–101(A); Or. DR 2–101(A)(3)(b); S.C. DR 2–101(A)(2) (c); and S.D. DR 2–101(C)(3).Google Scholar

184 La. DR 2–101(C)(5) and N.M. DR 2–101(A).Google Scholar

185 Idaho DR 2–101(C)(4); La. DR 2–101(C); N.Y. DR 2–101(B); and Or. DR 2–101(A)(3)(b).Google Scholar

186 The need for information about the quality of a lawyer's services is indicated by the fact that 83 percent of the people contacted in the Curran survey agreed with the statement that people do not go to lawyers because they have no way of knowing which lawyers are competent to handle their particular problem. Supra note 8. A substantial minority in the Curran survey expressed outright concern with the quality of lawyers' services. Thirty-nine percent of respondents felt that lawyers would take a case even if they did not feel sure they knew enough about that area of law to handle the case well. Id. at 229.Google Scholar

187 433 U.S. at 383–84.Google Scholar

188 D.C. DR 2–101(C)(3); Fla. DR 2–101(C)(4); Hawaii DR 2–101(C)(3); N.H. DR 2–101(C)(8); N.J. DR 2–101(C)(3); and S.D. DR 2–101(C)(4).Google Scholar

189 See, e.g., Ky. Bar Ass'n Op. No. E-219, in Ky. Bench & B., Oct. 1979, at 10 (lawyers wanted to call firm “Louisville Law Clinic”); In re Oldtowne Legal Clinic, 400 A.2d 1111 (Md. Ct. App. 1979); N.J. Op. No. 435, 104 N.J.L.J. 305 (1979) (regarding the use of “Budget Barrister”).Google Scholar

190 The rules also prohibit names that are misleading as to the identity of the lawyer or lawyers practicing thereunder. Ala. DR 2–102(B); Alaska DR 2–102(B); Ariz. DR 2–102(B); Ark. DR 2–102 (B); Colo. DR 2–102(B); Conn. DR 2–102(B); Del. DR 2–102(B); Fla. DR 2–102(B) (no trade name, misleading name, nor one that is false, fraudulent, deceptive nor contrary to law); Ga. Std. 9; Hawaii DR 2–102(B); Ind. DR 2–102(B); Iowa DR 2–102(B); Ky. DR 1–102(B); La. DR 2–102(B); Md. DR 2–102(A); Miss. DR 2–102(B); Mo. DR 2–102(B); Mont. DR 2–102(B); Neb. DR 2–102(B): N.H. DR 2–102(B); N.M. DR 2–102(B); N.Y. DR 2–102(B); N.C. DR 2–102(B); N.D. DR 2–102(B); Ohio DR 2–102(B); Okla. DR 2–102(B); Or. DR 2–102(B); Pa. DR 2–102(A); R.I. DR 2–102(B): S.C. DR 2–102(B); Tenn. DR 2–102(B); Tex. DR 2–102(B); Utah DR 2–102(B); Vt. DR 2–102(B); Wash. DR 2–102(B); Wis. DR 2–102(B); and Wyo. DR 2–102(B). For a discussion of other code rules that specifically govern the use of the term “legal clinic” in a firm name see Andrews, supra note 94, at appendix VII.Google Scholar

191 440 U.S. at 12.Google Scholar

192 Id. at 22 (Blackmun, J., and Marshall, J., concurring in part and dissenting in part).Google Scholar

193 In addition to being judged unconstitutional under the four-part test, prohibitions against the use of trade names would also be suspect for several policy reasons discussed in Central Hudson. E.g., the Court in Central Hudson summarized Bates and Virginia Pharmacy as holding that “an advertising ban could not be imposed to protect the ethical or performance standards of a profession.” 447 U.S. at 564. The Court recalled its language in Bates that ‘“Restraints on advertising … are an ineffective way of deterring shoddy work.’”Id. at 565, quoting Bates, 433 U.S. 378. Yet in assuming that trade names were meaningless the Court in Friedman upheld a commercial speech regulation on just such grounds (i.e., an attempt to set quality standards and deter shoddy work). See text at notes 75–77 supra. The Central Hudson Court also said that it has not in recent years approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity. Id. at 566 n.9. Yet it did approve of a total ban in Friedman even though the speech at issue was not misleading, merely on the possibility that the speech could be used in a deceptive way.Google Scholar

194 D.C. DR 2–102(B); Hawaii DR 2–102(B); Idaho DR 2–102(B); Kan. DR 2–102(B); Minn. DR 2–102(B); N.J. DR 2–102(B); and Va. DR 2–102(B).Google Scholar

195 The types of information that were permitted to be disclosed in the Yellow Pages under the old DR 2–102(A)(6) (1976) differed from the current ABA DR 2–101(B) regulatory list for advertising in the following ways. The old DR 2–102(A) would not have allowed disclosure of participation in prepaid or group legal services plans or contingent fees, range of fees for services, or an hourly rate. However, it would have allowed the dissemination of certain information that the advertising rule does not, such as posts of honor, section memberships in bar associations, certain hours of availability, and certain references.Google Scholar

196 433 U.S. at 367.Google Scholar

197 See Missouri Survey, supra note 100, at 136; Commentary, supra note 99; Curran, supra note 8.Google Scholar

198 D.C. DR 2–101(C)(4) (no showmanship or self-laudation); Fla. DR 2–101(C)(6) (no showmanship, puffery, self-laudation, or hucksterism, including the use of slogans, jingles, or garish or sensational language or format) and Fla. DR 2–101(E) (incorporates EC 2–11: “The content and format of the legal advertisement should comport with the dignity of the profession and promote public confidence in our legal system. Advertisements which utilize slogans, gimmicks, or other garish techniques are improper”); Ga. Std. 5(B) (for print ads, no photographs, pictorials or other graphic illustrations; only allows black and white ads with type size no greater than § cm. in height), (C)(2) (broadcast commercials must be spoken, unaccompanied by music or sound effects of any description, and must avoid puffery, self-laudation, or hucksterism), and 8(E) (Yellow Page listing must not be in distinctive form or type); Idaho DR 2–101(C)(6) (no showmanship, puffery, self-laudation, or hucksterism, including the use of slogans, jingles, or garish or sensational language or format); Ind. DR 2–101 (B) (for print ads, no photograph or other pictorial material; for broadcast commercials, no background music or other sound effects); Iowa DR 2–101(A) (no logos, trademarks, graphics, design work, and pictures) and (B) and (C) (all information must be communicated in words and numbers only; broadcast commercials may use only a single nondramatic voice, not that of the lawyer, with no other background sound; no visual display allowed on television except that allowed in print as articulated by the announcer); Kan. DR 2–101(B) (no drawings, illustrations, animations, portrayals, dramatizations, slogans, music, lyrics, or the use of pictures other than the portrait of the individual lawyer); Miss. DR 2–102(A)(8) (advertisement must be of dignified size and printed in no larger than 12-point type); N.H. DR 2–101(C)(10) (no statement or claim that is intended or is likely to attact clients by use of showmanship, puffery, or hucksterism, including the use of slogans, jingles, or garish or sensational language or format); N.J. DR 2–101(C)(4) (no showmanship); N.M. DR 2–101(D)(2) (no showmanship, puffery, or hucksterism, including the use of slogans, jingles, or garish or sensational language or format); N.C. DR 2–101(B) (no drawings, illustrations, animations, portrayals, dramatizations, slogans, music, lyrics, or pictures, or use of lawyer's voice or portrait); Ohio DR 2–101(B) (no drawings, illustrations, animations, portrayals, dramatizations, slogans, music, lyrics, or the use of pictures, except for ones of the advertising lawyer, or the use of a portrayal of the scales of justice); Okla. DR 2–101(G) (advertisement in print media to general public should not be larger than 10 inches square) and DR 2–101(1) (no signs, symbols, or pictures); Or. DR 2–101(A)(3)(d) (no slogans, jingles, musical themes, dramatic or theatrical imagery, or garish or sensational format or language); R.I. Sup. Ct. Provisional Order No. 11(7) (no photographs, design work, or logos) and (11) (“Advertisements over the electronic broadcast media shall contain no dramatizations, music or lyrics and shall consist solely of a prepared text, consistent with the Order, read by a professional announcer in a dignified manner. Television commercials shall consist solely of a slide presentation, consistent with the Order, accompanied by dignified announcements, read by a professional announcer off-camera. Electronic media advertising shall contain only information appropriate for the print media. Under no circumstances shall any lawyer personally appear on the broadcast media in connection with any commercial advertising”); S.C. DR 2–101(A)(2)(f) (no showmanship, puffery, self-laudation, or hucksterism, including the use of slogans, jingles, or garish or sensational language or format); S.D. DR 2–101(C)(6) (no showmanship, puffery, self-laudation, or hucksterism, including the use of slogans, jingles, or garish or sensational language or format); and Tenn. DR 2–101(1) (television commericals must consist of slides and dignified, prepared text announcements only; neither the lawyer nor his picture may appear in a broadcast ad).Google Scholar

199 Alaska DR 2–101(B); Ariz. DR 2–101(B); Colo. DR 2–101(B); Conn. DR 2–101(B); Del. DR 2–10KB); Fla. DR 2–101(E) and EC 2–11; Ga. Std. 5(B); 111. DR 2–101(c); Ind. DR 2–101(B); Iowa DR 2–101(B); Kan. DR 2–101(B); Mo. DR 2–101(B); Mont. DR 2–101(B); Neb. DR 2–101(B); Nev. Rule 164(2); N.M. DR 2–101(B); N.C. DR 2–101(B); N.D. DR 2–101(B); Ohio DR 2–101(B); Okla. DR 2–101(B); S.C. DR 2–101(B); Tenn. DR 2–101(B); Utah DR 2–101(B); Wash. DR 2–101(B); W. Va. DR 2–101(B); and Wyo. DR 2–101(B). The idea that lawyers' advertisements should be dignified is also expressed in Carter v. Lovett & Linder, Ltd., 425 A.2d 1244, 1245 (R.I. 1981): “We believe that the Supreme Court, in recognizing an attorney's First Amendment right to advertise, never intended to sanction a competitive struggle over which attorney or law firm would receive the advertising industry's accolade for having the biggest, best, and, in the case at bar, most colorful ad in the category reserved for the legal profession.” In that case, Lovett and Linder were found to have violated the disciplinary rules by placing an advertisement on the back inside cover of the Yellow Pages telephone directory rather than, as was permitted, in the Yellow Pages themselves. However, in a case involving the same parties, the federal district court in Rhode Island held the rule unconstitutional, saying, “Unfortunately, there appears to be generally no constitutional infirmity in being the biggest, best or most colorful in almost any commercial activity—including advertising.” Lovett & Linder, Ltd. v. Carter, C.A. No. 81–0118, at 21 (D.R.I., Sept. 8, 1981).Google Scholar

200 N.Y. DR 2–101(A).Google Scholar

201 Williams v. North Carolina State Bar, 81–367-civ-5 (E.D.N.C., filed June 12, 1981), is a request for a judgment declaring unconstitutional the North Carolina rules forbidding the use of graphics in attorneys' print advertisements and forbidding the use by attorneys of their voices or faces in broadcast advertising. The court in Bishop v. Committee on Professional Ethics & Conduct, Civ. No. 81–47-D, slip op. at 11 (S.D. Iowa, Aug. 20, 1981), upheld Iowa's prohibition on the use of signs and symbols in lawyers' advertisements. It did so on the basis of its faulty reading of Central Hudson, discussed at note 88 supra. Thus, it held that graphics “can be misleading” and therefore may validly be banned. However, it is difficult to imagine how a picture of the scales of justice or a photo of a lawyer's briefcase (both of which have been used in advertisements in other states) could conceivably be misleading.Google Scholar

202 Some of the restrictions on the technique of presenting advertisements, such as those forbidding graphics, arguably could be considered content restrictions, while others, such as those mandating a particular size for the ad, deal with format alone. I have chosen to analyze all technique restrictions under the time, place, and manner test. However, even with respect to restrictions that could be protected as “content,” the result will be the same under the test I am using. Since I will demonstrate that all the technique restrictions are unconstitutional under the time, place, and manner test, they would likewise be unconstitutional under the more protective content analysis of Central Hudson.Google Scholar

203 It is interesting to note, however, that the advertisement at issue in Bates would be improper under a number of state rules because of certain aspects of its format—such as its rhetorical question and its illustration.Google Scholar

204 425 U.S. at 773 n.25.Google Scholar

205 433 U.S. at 365.Google Scholar

206 436 U.S. at 441 (Rehnquist, J., dissenting).Google Scholar

207 The state might also advance an argument that certain format restrictions are necessary to prevent people from choosing a lawyer for irrelevant reasons, such as because of his appearance. However, as noted earlier, such an interest is not substantial. See text at notes 130–31 supra. Moreover, some of the items that the state might deem to be irrelevant to choice may be relevant to the consumer. In his interrogatories accompanying his petition to challenge the North Carolina rules prohibiting the use of an attorney's picture or voice, Williams asked the state bar why “it would not be preferable to have an attorney appear in his own television advertisements, so that the viewers considering calling on him for legal services which involve the use of his voice, personality and face, could be initially exposed to his voice, personality and face rather than that of a television personality.” Williams v. North Carolina State Bar, 81–367-civ-5 (E.D.N.C, filed June 12, 1981). In Bishop v. Committee on Professional Ethics & Conduct, Civ. No. 81–47-D (S.D. Iowa, Aug. 20, 1981), an attorney challenged various aspects of the Iowa ethics code rules relating to advertising. The attorney wished to run a picture of himself in the advertisement to convey that he was a black attorney. The court conceded that “such information can serve a useful purpose. Many persons, especially many in the segment of the public to which lawyer advertising is primarily directed, are apprehensive about going to a lawyer and prefer, as a means of somewhat allaying their apprehensions, to seek out a lawyer with whom they can identify.”Id. at 11. However, even though the court felt that “[a] photograph of a lawyer would usually accurately inform the viewer about his race” (id. at 24 n.6), the court upheld the ban on graphics and instead granted the lawyer the right to mention in his ads the fact that he was black. See note 201 supra.Google Scholar

208 Carey v. Population Servs. Internat'l, 431 U.S. 678, 701 (1977). Moreover, there is little evidence that letting lawyers have a full panoply of advertising techniques at their disposal will result in extensive use of undignified advertisements. Hellman, supra note 87, at 558 n. 292, points out that banks, stockbrokers, and churches advertise without a loss of dignity. “Why isn't the market place an adequate regulator of ‘dignity and professionalism’ in advertising?” Asks Hellman, “If such ads are so unworthy, what client would be attracted by them?”Id. at 563 n.317.Google Scholar

209 433 U.S. at 368, 371–72.Google Scholar

210 Because of widespread “functional illiteracy,” radio and television are the only methods of informing many members of the public. American Bar Association, Commission on Advertising, Report to the House of Delegates (paper, 1978).Google Scholar

211 R.H. Bruskin Associates, Survey for the Television Bureau of Advertising, Adults: Percent Reached and Time Spent Yesterday in Minutes with Major Media (typed table 1980).Google Scholar

212 433 U.S. at 384.Google Scholar

213 Alaska DR 2–101(B); Ariz. DR 2–101(B); Ark. DR 2–101(B); Cal. DR 2–101; D.C. DR 2–101; Fla. DR 2–101; Ga. Std. 5(C); Hawaii DR 2–101; Idaho DR 2–101; 111. DR 2–101; Iowa DR 2–101(B); Kan. DR 2–101(B); Ky. Rule 3.135; La. DR 2–101; Me. Rule 3.9(a); Md. DR 2–101(A); Mass. DR 2–101; Mich. Sup. Ct. Orders effective Mar. 15, 1978, and Feb. 2, 1979; Minn. DR 2–101(A); Mont. DR 2–101(B); Neb. DR 2–101(B); Nev. Rule 164(2); N.H. DR 2–101; N.Y. DR 2–101; N.C. DR 2–101(B); N.D. DR 2–101(B); Ohio DR 2–101(B); Or. DR 2–101(A); Pa. DR 2–101(A); R.I. Sup. Ct. Provisional Order No. 11(1); S.C. DR 2–101(D); S.D. DR 2–101(A); Tenn. DR 2–101(B); Utah Sup. Ct. Order No. 16347; Va. DR 2–101(A); Wash. DR 2–101(B); and Wis. Sup. Ct. Order of April 30, 1979. The Texas provision gives no guideline regarding broadcast advertising; it merely suspends the operation of its old advertising rule “to the extent that it conflicts with …Bates.” Tex. Sup. Ct. order of Dec. 13, 1978.Google Scholar

214 Ind. DR 2–101(B) and Wyo. DR 2–101(B).Google Scholar

215 Ala. DR 2–102(A)(7)(d); Conn. DR 2–101(B); Del. DR 2–101(B); Miss. DR 2–102(A)(8); Mo. DR 2–101(B); N.J. DR 2–101(D); N.M. DR 2–101(B); Okla. DR 2–101(B); Vt. DR 2–101(D); and W. Va. DR 2–101(B).Google Scholar

216 See, e.g., Ala. DR 2–102(A)(7)(d).Google Scholar

217 See, e.g., Ohio DR 2–101(B). This prohibition against billboard advertising was upheld in Law Firm of Calig & Waterman v. Supreme Court, No. 79–394 (Iowa Sup. Ct., June 8, 1979), cert, denied, 48 U.S.L.W. 3309.Google Scholar

218 NBC v. United States, 319 U.S. 190, 226 (1943); Red Lion Broadcasting Co., Inc. v. fcc, 395 U.S. 367,390 (1969).Google Scholar

219 Rosenbloom v. Metromedia, Inc., 415 F. 2d 892, 895 (3d Cir. 1969), aff'd, 403 U.S. 29 (1971).Google Scholar

220 Justices Powell and Stewart in their separate opinion in Bates refer to the use of the time, place, and manner test in judging the constitutionality of the use of certain media:. The Court speaks specifically only of newspaper advertising, but it is clear that today's decision cannot be confined on a principled basis to price advertisements in newspapers. No distinction can be drawn between newspapers and a rather broad spectrum of other means—for example, magazines, signs in buses and subways, posters, handbills, and mail circulations. But questions remain open as to time, place, and manner restrictions affecting other media, such as radio and television. 433 U.S. at 402 n.12.Google Scholar

221 Counsel for the Missouri Bar Advisory Committee makes this flawed argument in his brief to the U.S. Supreme Court in In re R.M.J. He tries to justify the rule against direct mailings by stating the three parts of the time, place, and manner test, then states that the rule is justified since it allows for ample alternative channels of communication. Respondent's Brief, In re R.M.J., at 13. An even grosser error in application of the time, place, and manner test was made in Bishop, Civ. No. 81–47-D, (S.D. Iowa, Aug. 20, 1981). When asked to rule on the constitutionality of the geographic limitations on advertising, the court did not even apply the three-part test. Instead, citing Bates, it made the conclusory statement “[t]hose limitations are clearly ‘reasonable restrictions on the … place …of advertising.’”Id. at 21 (ellipses in original). An appropriate use of the time, place, and manner test was made by the federal district court in Rhode Island in Lovett & Linder, Ltd. v. Carter C.A. No. 81–0118, at 17–21 (D.R.I., Sept. 8, 1981). The lawyer advertising rule at issue in the case prohibited lawyers from advertising on the inside back cover of the Yellow Pages directory. The court held that “[a]part from whatever alternative channels are left open,” an inquiry must be made into whether a significant governmental interest exists to justify the regulation. Id. at 18. In the Rhode Island case, the prohibition was struck down since it did not serve such an interest.Google Scholar

222 See text following note 203 supra.Google Scholar

223 Despite the fact that the Bates court did not find the maintenance of an aura of professionalism to be a sufficient state interest to ban print advertising, the court in Bishop, Civ. No. 81–47-D, at 17–18 (S.D. Iowa, Aug. 20, 1981), upheld a restriction against flyers, leaflets, billboards, and phone book covers in order to preserve professionalism by minimizing commercialization of the legal profession. In that same opinion, however, the court held unconstitutional the provision prohibiting lawyer advertisements in publications other than newspapers and periodicals of general circulation. With respect to that rule, the court found no sufficient governmental interest. Id. at 17. In addition, the court struck down the state's prohibition on the use of direct mail, specifically rejecting the “overcommercialization” argument. Id. at 20. These varying thrusts are difficult to reconcile, since, even within the court's analytic framework, it would appear just as likely that a leaflet would be tasteful as that a letter would.Google Scholar

224 425 U.S. 748, 769 (1976).Google Scholar

225 Id. at 770, cited in Bates, 433 U.S. at 365.Google Scholar

226 433 U.S. at 375.Google Scholar

227 Id. at 375 n.31.Google Scholar

228 It is questionable whether it is sufficiently more difficult to monitor billboards since they generally stay at a particular location for a long time.Google Scholar

229 The ABA model code and the state codes contain various provisions designed to aid disciplinary authorities in monitoring advertisements. Some of these provisions are designed to assure that the authorities have copies of the lawyers' advertisements, or at least have access to copies of them. See, e.g., Kentucky, where a lawyer must mail a copy of an advertisement (be it a print or broadcast or direct mail communication) to the state bar association simultaneously with the advertisement's publication. Ky. Rule 3.135 (if the communication was by direct mail, the lawyer must also send the bar association “a list of all the persons or firms to whom it is being or will be sent or delivered”).Google Scholar

230 Although I have chosen to analyze the mass media restrictions under the traditional time, place, and manner test, the restrictions would also be found unconstitutional under the Central Hudson test as well, both because the government interests advanced are not substantial enough and because, with respect to enforcement (where there is a conceded governmental interest), the rule prohibiting the use of certain media is more restrictive than is necessary to serve the interest.Google Scholar

231 Andrews, supra note 94, at 63.Google Scholar

232 N.C. Op. cpr 176 (July 14, 1978), N.C. St. B.Q., No. 3, 1978, at 26.Google Scholar

233 421 U.S. 809, 826 (1975).Google Scholar

234 See, e.g., Ohralik, 436 U.S. at 461; Comments, supra note 51.Google Scholar

235 433 U.S. at 350.Google Scholar

236 Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 542 (1980).Google Scholar

237 Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140, 149, 412 N.E.2d 927, 933, 432 N.Y.S.2d 872, 877 (1980).Google Scholar

238 Such a requirement was suggested by the New York Court of Appeals in Koffler, id. at 150, 412 N.E.2d at 933, 432 N.Y.S.2d at 878, and by the Kentucky Supreme Court in Kentucky Bar Ass'n v. Stuart, 568 S.W.2d 933 (Ky. 1978), in its decision holding unconstitutional a ban on direct mail promotional communications by lawyers. The federal district court in Bishop, Civ. No. 81–47-D, slip op. at 21, (S.D. Iowa, Aug. 20, 1981), also held that rules prohibiting direct mail “violate [an attorney's] First Amendment right of commercial speech.” The court held that the state interest in preventing deception could be met by a less restrictive alternative than a total ban—namely, a filing requirement such as that suggested by the New York and Kentucky courts. Id. In addition, the court recognized that “in the average home some anxiety might be generated by the arrival in the mail of an envelope from a lawyer's office” and that “[prohibition of direct mailing would prevent such feelings of anxiety.” Nevertheless, the Iowa court held that such a prohibition is far more extensive than necessary since “a requirement that there be printed or stamped on the envelope the words ‘Advertising Content’ would suffice.”Id. at 20.Google Scholar

239 See text at note 33 supra.Google Scholar

240 In fact, one grievance committee pointed out, “To prohibit a lawyer from selecting as the recipients of a communication those who might be most in need of a lawyer's services is to suck much of the meaning out of the Bates rationale” regarding the importance of informing people about the availability, nature and prices of legal services. Professional Guidance Comm. Releases Two Recent Opinions, Legal Intelligence, Sept. 24, 1980, at 1, citing Bates, 433 U.S. at 364.Google Scholar

241 51 N.Y.2d at 150, 412 N.E.2d at 934, 432 N.Y.S.2d at 878. The application of the time, place, and manner test demonstrates that a lawyer's direct mail communication to a client may not constitutionally be prohibited. The same result would be reached under the Central Hudson test because the governmental interests advanced are not substantial enough, the rules do not directly advance these interests, and even if the interests are considered substantial, there are less restrictive means of achieving them. The Court in Koffler used the Central Hudson test to declare unconstitutional the rule prohibiting the use of direct mail.Google Scholar