Summary
In Disciplinary Counsel v. Zauderer (1984), 10 Ohio St.3d 44, 10 OBR 308, 461 N.E.2d 883, under former DR 2-101(B)(15), which is essentially the same as the present DR 2-101(E)(1)(c), we publicly reprimanded an attorney who advertised, "If there is no recovery, no legal fees are owed by our clients.
Summary of this case from Disciplinary Counsel v. ShaneOpinion
D.D. No. 83-19
Decided April 4, 1984.
Attorneys at law — Misconduct — Public reprimand — DR 2-101(B) permissibly restricts commercial speech and is constitutional.
O.Jur 3d Attorneys at Law § 34.
DR 2-101(B) of the Code of Professional Responsibility permissibly restricts the content of protected commercial speech and is therefore not violative of the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
On July 29, 1982, the Office of Disciplinary Counsel, relator herein, filed a complaint against Philip Q. Zauderer, respondent herein, alleging that respondent violated certain Disciplinary Rules of the Ohio Code of Professional Responsibility with the publication of two legal service advertisements.
The first advertisement related to respondent's availability for representation of individuals charged with driving while intoxicated. That advertisement appeared in one newspaper for a period of two days, at which time respondent voluntarily withdrew it. He accepted no employment as a consequence of that advertisement.
The second advertisement related to respondent's availability for representation of women in connection with injuries resulting from the use of a particular intrauterine birth control device known as the "Dalkon Shield." This advertisement, which was the subject of six of the nine counts of the relator's complaint as later amended, contained various types of information, including: (1) a diagram of the Dalkon Shield; (2) statements that the Dalkon Shield has been alleged to have caused serious injuries to its users; (3) a statement that it may not be too late to take legal action against the Dalkon Shield's manufacturer; (4) the statement that the respondent's firm is representing women who have sustained such injuries; and (5) statements that the respondent's fees for such representation are payable on a contingency basis. The Dalkon Shield advertisement did not state the percentage of the respondent's contingent fee rates nor did it describe potential litigation-related costs.
The Dalkon Shield advertisement at issue contained an illustration of the device itself and copy which read as follows:
"Did you use this I.U.D.? The Dalkon Shield Interuterine [ sic] Device is alleged to have caused serious pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It is also alleged to have caused unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies and full-term deliveries. If you or a friend have had a similar experience do not assume it is too late to take legal action against the Shield's manufacturer. Our law firm is presently representing women on such cases. The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients. For free information call 1-614-444-1113. The law firm of Philip Q. Zauderer Associates, 52 West Whittier Street, Columbus, Ohio 43206."
On May 24, 1983, a hearing was held on these matters before a three-member panel of the Board of Commissioners on Grievances and Discipline (hereinafter "board"), at which time a substantial amount of evidence was introduced respecting the value of advertising to the public, and the unique value of respondent's Dalkon Shield advertisement in light of the public's limited awareness of the dangers of that particular device. As a result of that hearing, the panel recommended that respondent receive a public reprimand.
The board declined to adopt the panel's recommendation, however, and recommended instead that respondent be indefinitely suspended from the practice of law. This disciplinary measure was based upon the board's findings that: (1) use of the Dalkon Shield diagram violated the prohibition of DR 2-101(B) against illustrations; (2) the Dalkon Shield advertisement contained an implicit self-recommendation of employment and respondent, through such advertisement, gave unsolicited legal advice and, therefore, his acceptance of employment violated DR 2-104(A); (3) the failure to include specific information relating to potential litigation-related costs rendered the Dalkon Shield advertisement misleading in violation of DR 2-101(A); (4) the failure to state specific fee rates in the Dalkon Shield advertisement constituted a violation of DR 2-101(B)(15); and (5) in recommending employment of himself as a private practitioner to a non-lawyer who had not sought his advice regarding employment of a lawyer, respondent violated DR 2-103(A). The board specifically rejected respondent's assertions that the Disciplinary Rules, as applied to the Dalkon Shield advertisement, are violative of the constitutional guarantees of free speech.
As to the drunk driving advertisement, the board found that respondent violated DR 2-101(A).
The American Civil Liberties Union Foundation of Ohio, Inc., the Dispatch Printing Company, and the Ohio Newspaper Association have filed amicus curiae briefs urging this court to strike as constitutionally infirm the Disciplinary Rules in question.
Mr. Angelo J. Gagliardo, disciplinary counsel, and Mr. Mark H. Aultman, for relator.
Mr. David K. Frank, for respondent.
Messrs. Gingher Christensen, Mr. Paul R. Gingher, Mr. Daniel G. Hale and Mr. Malcolm L. Miller, for amicus curiae, Ohio Newspaper Association.
Messrs. Jones, Day, Reavis Pogue, Mr. John W. Zeiger and Mr. Todd S. Swatsler, for amicus curiae, Dispatch Printing Company.
Messrs. Porter, Wright, Morris Arthur and Ms. Lita C. Miller, for amicus curiae, American Civil Liberties Union Foundation of Ohio, Inc.
This is a case of first impression in Ohio concerning the constitutional validity of Disciplinary Rules which restrict the content of legal service advertisements. Specifically, the question presented herein is whether the content restrictions of DR 2-101(B) violate the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution.
DR 2-101(B) reads as follows:
"In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-103, in print media or over radio or television. Print media includes only regularly published newspapers, magazines and other periodicals, classified telephone directories, city, county and suburban directories, law directories and law lists. The information disclosed by the lawyer in such publication or broadcast shall comply with DR 2-101(A) and be presented in a dignified manner without the use of drawings, illustrations, animations, portrayals, dramatizations, slogans, music, lyrics or the use of pictures, except the use of pictures of the advertising lawyer, or the use of a portrayal of the scales of justice. Only the following information may be published or broadcast:
"(1) Name, including name of law firm and names of professional associates, addresses and telephone numbers;
"(2) One or more fields of law in which the lawyer or law firm is available to practice, but may not include a statement that the practice is limited to or concentrated in one or more fields of law or that the lawyer or law firm specializes in a particular field of law unless authorized under DR 2-105;
"(3) Age;
"(4) Date of admission to the bar of a state, or federal court or administrative board or agency;
"(5) Schools attended, with dates of graduation, degrees and other scholastic distinctions;
"(6) Public or quasi-public offices;
"(7) Military service;
"(8) Published legal authorships;
"(9) Holding scientific, technical and professional licenses, and memberships in such associations or societies;
"(10) Foreign language ability;
"(11) Whether credit cards or other credit arrangements are accepted;
"(12) Office and telephone answering service hours;
"(13) Fee for an initial consultation;
"(14) Availability upon request of a written schedule of fees or an estimate of the fee to be charged for specific services;
"(15) Contingent fee rates subject to DR 2-106(C), provided that the statement discloses whether percentages are computed before or after deduction of court costs and expenses;
"(16) 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 without obligation to 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;
"(17) Fixed fees for specific legal services;
"(18) Legal teaching positions, memberships, offices, committee assignments, and section memberships in bar associations;
"(19) Memberships and offices in legal fraternities and legal societies;
"(20) In law directories and law lists only, names and addresses of references, and, with their written consent names of clients regularly represented."
As to the Dalkon Shield advertisement we agree with the findings of the panel and board that respondent violated DR 2-101(B), prohibiting illustrations in an advertisement; DR 2-104(A), in accepting employment resulting from unsolicited advice given by him to a non-lawyer; DR 2-101(A), in publishing communications which were misleading; DR 2-101(B)(15), by failing fully to disclose the terms of the contingent fee arrangement which was intended to be entered into at the time of publishing the advertisement; and DR 2-103(A), in recommending employment of himself as a private practitioner to a non-lawyer who had not sought his advice regarding employment of a lawyer.
These sections which the panel and board found had been violated by the respondent are constitutional provisions of the Ohio Disciplinary Rules as contained within the Code of Professional Responsibility.
The holdings of the United States Supreme Court in Bates v. State Bar of Arizona (1977), 433 U.S. 350, and In re R.M.J. (1982), 455 U.S. 191, do not totally prohibit the states from restricting lawyer advertising. The court in Bates, at 383-384, stated that there could well be a number of areas where restrictions are allowed. Certainly one such area is where the advertising is misleading per se, or may be misleading in its reach and interpretation. A potential client peering at a lawyer advertisement may be misled or confused by the expressed words, by an illustration or drawing, or by a combination of both.
In the subsequent case of In re R.M.J., the court at page 203 recognized that the state retains some authority to regulate a communication which is not misleading in nature. The state must, however, assert a substantial interest in the regulation and the restriction on the advertisement must be in proportion to the interest served.
Although the restrictions must be narrowly drawn, this state's Disciplinary Rule concerning lawyer advertising passes constitutional muster. Each restriction is closely related to a substantial state interest. It is our view that an allowable restriction for lawyer advertising is that of asserted expertise of the advertising lawyer. A lawyer should not be permitted to hold himself out as an expert in certain designated areas unless there are in existence certain standards or criteria that have been promulgated by the court and set forth in the Disciplinary Rules.
Also, requirements relative to the content of the advertising concerning legal fees would be permissible under the United States Supreme Court rulings cited. Certainly for purposes of clarity to those reading a lawyer advertisement which refers to contingent fees, the requirement should be that such fees be specifically expressed, as well as any additional costs that might be assessed the client.
Also, it is reasonable for a state to impose restrictions upon lawyer advertising, prohibiting the lawyer from giving legal advice in a specific area, and then recommending employment of himself to those who have not sought his advice. Further, in this regard, the states may restrict the lawyer from accepting employment resulting from unsolicited advice given by him.
The specific subsections of DR 2-101(B) which were involved here and which were the basis of the sanctions recommended for the respondent are not unconstitutional. Although some other portions of DR 2-101(B) may be found to be constitutionally overbroad it is not necessary that we scrap the totality of this Disciplinary Rule.
With respect to the drunk driving advertisement, the board found that respondent violated DR 2-101(A). The board reasoned that the phrase "Full legal fee refunded if convicted of Drunk Driving," as contained in the ad, encouraged the reader to believe that he could obtain representation in a criminal case at no cost. However, in view of the common practice of entering a plea of guilty or no contest to a lesser included offense when a person is charged with operating a motor vehicle while intoxicated, this interpretation would be erroneous. If such a plea were entered, the defendant would not be "convicted of drunk driving" and therefore the legal fee would not be refundable.
While we agree with the board's conclusion that the drunk driving advertisement was "misleading and deceptive" in violation of DR 2-101(A), we also note that respondent voluntarily withdrew the advertisement from circulation after only one publication and did not accept any clients as a result thereof.
Accordingly, we accept the hearing panel's recommendation and hereby determine that respondent's conduct warrants a public reprimand.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and J.P. CELEBREZZE, JJ., concur.