In The

Supreme Court of the United States



and Disciplinary Commission of Illinois

Decided June 4, 1990

Justice O’Connor, Dissenting

Topic: Attorneys*Court vote: 5–4
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Joining O'Connor opinion: Chief Justice REHNQUIST Chief Justice REHNQUIST Justice SCALIA Justice SCALIA
Citation: 496 U.S. 91 Docket: 88–1775Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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Justice O'CONNOR, with whom Chief Justice REHNQUIST and Justice SCALIA join, dissenting.

This case provides yet another example of the difficulties raised by rote application of the commercial speech doctrine in the context of state regulation of professional standards for attorneys. Nothing in our prior cases in this area mandates that we strike down the state regulation at issue here, which is designed to ensure a reliable and ethical profession. Failure to accord States considerable latitude in this area embroils this Court in the micromanagement of the State's inherent authority to police the ethical standards of the profession within its borders.

Petitioner argues for the first time before this Court that the statement on his letterhead that he is a certified trial specialist is not commercial speech. I agree with the Court that we need not reach this issue in this case. Ante at 496 U. S. 99 -100. We generally do not "decide federal constitutional issues raised here for the first time on review of state court decisions." Cardinale v. Louisiana, 394 U. S. 437, 394 U. S. 438 (1969).

We recently summarized our standards for commercial speech by attorneys in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985):

The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, misleading, see Friedman v. Rogers, 440 U. S. 1 (1979).... Commercial speech that is not false or deceptive and does not concern unlawful activities... may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.

Id. 471 U.S. at 471 U. S. 638. In my view, application of this standard requires us to affirm the Illinois Supreme Court's decision that Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility is a valid measure to control misleading and deceptive speech.

The public's comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the 'product' renders [attorney commercial speech] especially susceptible to abuses that the States have a legitimate interest in controlling.

In re R.M.J., 455 U. S. 191, 455 U. S. 202 (1982). Although certifying organizations, such as the National Board of Trial Advocacy (NBTA), may provide a valuable service to the legal profession and the public, I would permit the States broad latitude to ensure that consumers are not misled or deceived by claims of certification.

In In re R.M.J., supra, the Court stated, that it

has made clear... that regulation -and imposition of discipline -are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive.

Id. at 455 U. S. 202 (emphasis added). The plurality in this case correctly notes that the statements in petitioner's letterhead have not been shown actually to deceive consumers, see ante at 496 U. S. 100 -101, but it fails adequately to address whether the statements are "inherently likely to deceive," as the Supreme Court of Illinois concluded. 126 Ill.2d 397, 408, 128 Ill.Dec. 535, 540, 534 N.E.2d 980, 985 (1989). Charged with the duties of monitoring the legal profession within the State, the Supreme Court of Illinois is in a far better position than is this Court to determine which statements are misleading or likely to mislead. Although we are the final arbiters on the issue whether a statement is misleading as a matter of constitutional law, we should be more deferential to the State's experience with such statements. Illinois does not stand alone in its conclusion that claims of certification are so misleading as to require a blanket ban. At least 19 States and the District of Columbia currently ban claims of certification. See Alaska Code Prof.Resp. DR 2105 (1990); D.C.Ct.Rules, App.A., DR 2105 (1989); Haw.Code Prof.Resp. DR 2-105 (1990); Ill.Code Prof.Resp. Rule 2-105 (1989); Ind.Rule Prof.Conduct 7.4 (1990); Iowa Code Prof.Resp. DR 2-105 (1989); Ky.Sup.Court Rule 7.4 (1990-1991); Mass. Sup.Judicial Ct.Rule DR 2-105 (1990); Md. Rule Prof.Conduct 7.4 (1990); Miss.Rule Prof.Conduct 7.4 (1989); Mo.Sup.Ct.Rule Prof.Conduct 7.4 (1990); Nev.Sup.Court Rule Prof.Conduct 198 (1990); Ore.Code Prof.Resp. DR 2-105 (1990); Pa.Rule Prof. Conduct 7.4 (1989); S.D.Rule Prof.Conduct 7.4 (1989); Tenn.Sup.Ct.Rule DR 2-105 (1988-1989); Va.Sup.Ct.Rule, pt. 6, § 2, DR 2-104 (1989); Wash.Rule Prof.Conduct 7.4 (1990); W.Va.Rule Prof.Conduct 7.4 (1990); Wis.Sup.Ct.Rule Prof.Conduct 20:7.4 (1989).

Despite the veracity of petitioner's claim of certification by the NBTA, such a claim is inherently likely to deceive the public. The plurality states that "[a] claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, but is simply a fact." Ante at 496 U. S. 101 (citation omitted). This view, however, conflates fact and verifiability. Merely because something is a fact does not make it readily verifiable. A statement, even if true, could be misleading. See also Bates v. State Bar of Arizona, 433 U. S. 350, 433 U. S. 383 (1977) (attorney commercial speech "that is false, deceptive, or misleading of course is subject to restraint" (emphasis added)). The ordinary consumer with a "comparative lack of knowledge" about legal affairs should be able to assess the validity of claims and statements made in attorney advertising. Neither petitioner nor the plurality assert that petitioner's claim of certification on its face is readily understandable to the average consumer of legal services.

The plurality verifies petitioner's statement on his letterhead by reference to the record assembled in this case, but that record is not readily available to members of the public. Given the confusion in the court below about the certification standard applied by the NBTA, see 126 Ill.2d at 406, 128 Ill.Dec. at 539, 534 N.E.2d at 984, there can be little doubt that the meaning underlying a claim of NBTA certification is neither common knowledge nor readily verifiable by the ordinary consumer. And nothing in petitioner's letterhead reveals how one might attempt to verify the claim of certification by the NBTA. At least the claim of admission to the United States Supreme Court at issue in In re R.M.J., supra, which the Court stated "could be misleading," 455 U.S. at 455 U. S. 205 -206, named a readily recognizable institution or location to which inquiries could be addressed. Reference to the "NBTA" provides no such guidepost for inquiries. The State is, in my view, more than justified in banning claims of certification by the NBTA.

The plurality appears to have abandoned altogether any requirement that a statement or claim be verifiable by the ordinary consumer of legal services. Apparently, it would permit advertising claims of certification by any organization so long as the 1awyer can

demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law.

Ante at 496 U. S. 109. The plurality has thereby deserted the sole policy reason that justifies its headlong plunge into micromanagement of state bar rules - facilitation of a "consumer's access to legal services." Ante at 496 U. S. 110. Facilitation of access to legal services is hardly achieved where the consumer neither knows the organization nor can readily verify its criteria for membership.

[A]dvertising claims as to the quality of services... are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction.

Bates, supra, 433 U.S. at 433 U. S. 383 -384; see also In re R.M.J., 455 U.S. at 455 U. S. 201 ("[C]laims as to quality... might be so likely to mislead as to warrant restriction"). As the Supreme Court of Illinois properly concluded, certification is tantamount to a claim of quality, and superiority and is therefore inherently likely to mislead. 126 Ill.2d at 410, 128 Ill.Dec. at 541, 534 N.E.2d at 986. Indeed, the plurality's citation of others' descriptions of NBTA certification supports the conclusion that it is intended to attest to the quality of the lawyer's work. The plurality refers to the Task Force on Lawyer Competence of the Conference of Chief Justices, Report with Findings and Recommendations to the Conference of Chief Justices, Publication No. NCSC-021, (May 26, 1982), which stated:

The National Board of Trial Advocacy, a national certification program that provides recognition for superior achievement in trial advocacy, uses a highly structured certification process in addition to a formal examination to select its members.

Id. at 33-34 (emphasis added).

Not only does the certification claim lead the consumer to believe that this lawyer is better than those lawyers lacking such certification, it also leads to the conclusion that the State licenses the lawyer's purported superiority. The juxtaposition on petitioner's letterhead of "Licensed: Illinois, Missouri, Arizona" with the claim of NBTA certification increases the likelihood of deception. As the court below reasoned, 126 Ill.2d at 406, 128 Ill.Dec. at 539, 534 N.E.2d at 984, the proximity of the two statements might easily lead the consumer to conclude that the State has sanctioned the certification. As it is common knowledge that States police the ethical standards of the profession, that inference is likely to be especially misleading. The plurality disposes of this difficulty by drawing an unconvincing distinction between licensing and certification:

We are satisfied that the consuming public understands that licenses... are issued by governmental authorities and that a host of certificates... are issued by private organizations.

Ante at 496 U. S. 103. Yet no such bright line exists. For example, California is now certifying legal specialists. See Cal. Rules Ct., Policies Governing the State Bar of California Program for Certifying Legal Specialists (1990). See also Ariz. Rule Prof. Conduct ER 7.4 (1990); Ark. Model Rule Prof. Conduct 7.4(c) (1990); Fla. Rule Prof. Conduct 4-7.5(c) (1990); La.Rev.Stat. Ann., Rule of Prof. Conduct 7.4 (1988); N.J.Ct.Rule 1:39 and N.J.Rule Prof.Conduct 7.4 (1989); N.M.Rules Governing Practice of Law, Rule of Prof. Conduct 16-704 (1988); N.C.Ann.Rules, Plan of Certified Legal Specialization, App. H, Rule 5.7 (1989); S.C.Rules on Lawyer Advertising, Ct. Rule 7.4 (Supp.1989); Tex.State Bar Rules, Art. 10, § 9, DR 2-101(C) (1989); Utah Rule Prof. Conduct 7.4(b) (1990). Thus, claims of certification may well lead the ordinary consumer to conclude that the State has sanctioned such a claim. "[B]ecause the public lacks sophistication concerning legal services," "the leeway for untruthful or misleading expression that has been allowed in other contexts has little force in the [attorney commercial speech] arena." Bates, supra, 433 U.S. at 433 U. S. 383. The Supreme Court of Illinois did not err when it concluded that the ordinary consumer is likely to be misled by the juxtaposition of state bar admission and claims of civil trial specialty. Because the statement of certification on petitioner's letterhead is inherently misleading, the State may prohibit it without violation of the First Amendment. See In re R.M.J., supra, 455 U.S. at 455 U. S. 203 ("Misleading advertising may be prohibited entirely").

Petitioner does not suggest a less burdensome means of regulating attorney claims of certification than case-by-case determination. Under petitioner's theory, the First Amendment requires States that would protect their consumers from misleading claims of certification to provide an individual hearing for each and every claim of certification, extending well beyond NBTA certification to any organization that may be used by a resourceful lawyer. In my view, the First Amendment does not require the State to establish such an onerous system, and permits the State simply to prohibit such inherently misleading claims.

As a majority of this Court agrees, see ante at 496 U. S. 111 (MARSHALL, J., concurring in judgment, joined by BRENNAN, J.); see ante at 496 U. S. 118 (WHITE, J., dissenting); (O'CONNOR, J., dissenting, joined by REHNQUIST, C.J., and SCALIA, J.), petitioner's claim to certification is at least potentially misleading. If the information cannot be presented in a way that is not deceptive, even statements that are merely potentially misleading may be regulated with an absolute prohibition. See In re R.M.J., 455 U.S. at 496 U. S. 203. It is difficult to believe that a disclaimer could be fashioned, as the plurality suggests, ante at 496 U. S. 110 ; see also opinion concurring in judgment, ante at 496 U. S. 117, that would make petitioner's claim of certification on his letterhead not potentially misleading. Such a disclaimer would have to communicate three separate pieces of information in a space that could reasonably fit on a letterhead along with the claim of certification: (1) that the claim to certification does not necessarily indicate that the attorney provides higher quality representation than those who are not certified; (2) that the certification is not state-sanctioned; and (3) either the criteria for certification or a reasonable means by which the consumer could determine what those criteria are. Even if the State were to permit claims of certification along with disclaimers, in order to protect consumers adequately, the State would have to engage in case-by-case review to ensure that the misleading character of a particular claim to certification was cured by a particular disclaimer. Alternatively, the State would be forced to fashion its own disclaimer for each organization for which certification is claimed by the attorneys within its borders, provide for certification itself, or, at the least, screen each organization. See, e.g., Ala.Code Prof.Resp.Temp. DR 2-112 (1989) (providing for state screening of certifying organizations). Although having information about certification may be helpful for consumers, the Constitution does not require States to go to these extremes to protect their citizens from deception. In my view, the Court would do well to permit the States broad latitude to experiment in this area so as to allow such forms of disclosure as best serve the State's legitimate goal of assisting its citizens in obtaining the most reliable information about legal services.

Petitioner also contends that D.R. 2-105 violates the Equal Protection Clause as applied to him on the ground that there is no rational justification for allowing attorneys in certain areas to claim specialization, e.g., admiralty, patent, and trademark, while precluding him from claiming a civil trial specialty. Yet petitioner's claim is not merely a claim of concentration of practice, which the Illinois rules permit, but rather a claim of quality. It is not irrational for the State to assume that the reporting of professional experience is less likely to mislead the public than would claims of quality. Moreover, while the claim of NBTA certification is misleading in part because the public does not know what meaning to attach to it, the claim of concentration of practice merely states a fact understandable on its face to the ordinary consumer. Finally, as the Supreme Court of Illinois noted, historically lawyers have been permitted to advertise specialization in patent, trademark and admiralty law because of the difficulties encountered by the general public in finding such attorneys. See 126 Ill.2d at 410-411, 128 Ill.Dec. at 541, 534 N.E.2d at 986. Locating an attorney who is a civil trial advocate hardly poses the same obstacle. Thus, I would conclude that the regulation does not violate the Equal Protection Clause

For the foregoing reasons, I would uphold Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility and affirm the decision of the court below.

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