In The

Supreme Court of the United States




Decided May 28, 1985

Justice O’Connor, Concurring in part and dissenting in part

Topic: Attorneys*Court vote: 5–3
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Joining O'Connor opinion: Chief Justice BURGER Chief Justice BURGER Justice REHNQUIST Justice REHNQUIST
Citation: 471 U.S. 626 Docket: 83–2166Audio: 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 THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in part, concurring in the judgment in part, and dissenting in part.

I join Parts I, II, V, and VI of the Court's opinion, and its judgment except insofar as it reverses the reprimand based on appellant Zauderer's use of unsolicited legal advice in violation of DR 2-103(A) and 2-104(A). I agree that appellant was properly reprimanded for his drunken driving advertisement and for his omission of contingent fee information from his Dalkon Shield advertisement. I also concur in the Court's judgment in Part IV. At least in the context of print media, the task of monitoring illustrations in attorney advertisements is not so unmanageable as to justify Ohio's blanket ban. [ Footnote 3/1 ] I dissent from Part III of the Court's opinion. In my view, the use of unsolicited legal advice to entice clients poses enough of a risk of overreaching and undue influence to warrant Ohio's rule.

Merchants in this country commonly offer free samples of their wares. Customers who are pleased by the sample are likely to return to purchase more. This effective marketing technique may be of little concern when applied to many products, but it is troubling when the product being dispensed is professional advice. Almost every State restricts an attorney's ability to accept employment resulting from unsolicited legal advice. At least two persuasive reasons can be advanced for the restrictions. First, there is an enhanced possibility for confusion and deception in marketing professional services. Unlike standardized products, professional services are by their nature complex and diverse. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 773, n. 25 (1976). Faced with this complexity, a layperson may often lack the knowledge or experience to gauge the quality of the sample before signing up for a larger purchase. Second, and more significantly, the attorney's personal interest in obtaining business may color the advice offered in soliciting a client. As a result, a potential customer's decision to employ the attorney may be based on advice that is neither complete nor disinterested. These risks are of particular concern when an attorney offers unsolicited advice to a potential client in a personal encounter. In that context, the legal advice accompanying an attorney's pitch for business is not merely apt to be complex and colored by the attorney's personal interest. The advice is also offered outside of public view, and in a setting in which the prospective client's judgment may be more easily intimidated or overpowered. See Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978). For these reasons, most States expressly bar lawyers from accepting employment resulting from in person unsolicited advice. [ Footnote 3/2 ] Some States, like the American Bar Association in its Model Rules of Professional Conduct, extend the prohibition to employment resulting from unsolicited advice in telephone calls, letters, or communications directed to a specific recipient. [ Footnote 3/3 ] Ohio and 14 other States go a step further. They do not limit their rules to certain methods of communication, but instead provide that, with limited exceptions, a

lawyer who has given unsolicited legal advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice. [ Footnote 3/4 ]

The issue posed and decided in Part III of the Court's opinion is whether such a rule can be applied to punish the use of legal advice in a printed advertisement soliciting business. The majority's conclusion is a narrow one:

An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive... advice regarding the legal rights of potential clients.

Ante at 471 U. S. 647. The Court relies on its commercial speech analysis in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557 (1980), and In re R.M.J., 455 U. S. 191 (1982). As the Court notes, Central Hudson Gas & Electric establishes that a State can prohibit truthful and nondeceptive commercial speech only if the restriction directly advances a substantial government interest. In re R.M.J. went further, stating that a State cannot place an absolute prohibition on certain types of potentially misleading information if the information may also be presented in a way that is not deceptive. 455 U.S. at 455 U. S. 203.

Given these holdings, the Court rejects Ohio's ban on the legal advice contained in Zauderer's Dalkon Shield advertisement: "do not assume it is too late to take legal action against the... manufacturer." App. 15. Surveying Ohio law, the majority concludes that this advice "seems completely unobjectionable," ante at 471 U. S. 640. Since the statement is not misleading, the Court turns to the asserted state interests in restricting it, and finds them all wanting. The Court perceives much less risk of overreaching or undue influence here than in Ohralik simply because the solicitation does not occur in person. The State's interest in discouraging lawyers from stirring up litigation is denigrated because lawsuits are not evil, and States cannot properly interfere with access to our system of justice. Finally, the Court finds that there exist less restrictive means to prevent attorneys from using misleading legal advice to attract clients: just as the Federal Trade Commission has been able to identify unfair or deceptive practices in the marketing of mouthwash and eggs, Warner-Lambert Co. v. FTC, 183 U.S.App.D.C. 230, 562 F.2d 749 (1977), National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157 (CA7 1977), the States can identify unfair or deceptive legal advice without banning that advice entirely. Ante at 471 U. S. 645 -646. The majority concludes that "[t]he qualitative distinction the State has attempted to draw eludes us." Ante at 471 U. S. 646.

In my view, state regulation of professional advice in advertisements is qualitatively different from regulation of claims concerning commercial goods and merchandise, and is entitled to greater deference than the majority's analysis would permit. In its prior decisions, the Court was better able to perceive both the importance of state regulation of professional conduct and the distinction between professional services and standardized consumer products. See, e.g., Goldfarb v. Virginia State Bar, 421 U. S. 773, 421 U. S. 792 (1975). The States understandably require more of attorneys than of others engaged in commerce. Lawyers are professionals, and as such they have greater obligations. As Justice Frankfurter once observed,

[f]rom a profession charged with [constitutional] responsibilities there must be exacted... qualities of truth-speaking, of a high sense of honor, of granite discretion.

Schware v. Board of Bar Examiners of New Mexico, 353 U. S. 232, 353 U. S. 247 (1957). The legal profession has in the past been distinguished and well served by a code of ethics which imposes certain standards beyond those prevailing in the marketplace and by a duty to place professional responsibility above pecuniary gain. While some assert that we have left the era of professionalism in the practice of law, see Florida Bar v. Schreiber, 420 So.2d 599 (Fla.1982) (opinion of Ehrlich, J.), substantial state interests underlie many of the provisions of the state codes of ethics, and justify more stringent standards than apply to the public at large.

The Court's commercial speech decisions have repeatedly acknowledged that the differences between professional services and other advertised products may justify distinctive state regulation. See Virginia Pharmacy Board, 425 U.S. at 425 U. S. 773, n. 25; id. at 425 U. S. 773 -775 (opinion of BURGER, C.J.); Bates v. State Bar of Arizona, 433 U. S. 350, 433 U. S. 383 -384 (1977); In re R.M.J., supra, at 455 U. S. 204, n. 15. Most significantly, in Ohralik, the Court found that the strong state interest in maintaining standards among members of licensed professions and in preventing fraud, overreaching, or undue influence by attorneys justified a prophylactic rule barring in person solicitation. 436 U.S. at 436 U. S. 460 -462. Although the antisolicitation rule in Ohralik would in some circumstances preclude an attorney from honestly and fairly informing a potential client of his or her legal rights, the Court nevertheless deferred to the State's determination that risks of undue influence or overreaching justified a blanket ban. See also Friedman v. Rogers, 440 U. S. 1 (1979) (upholding Texas prohibition on use of any trade name in the practice of optometry due to risk of deceptive or misleading use of trade names). At a minimum, these cases demonstrate that States are entitled under some circumstances to encompass truthful, nondeceptive speech within a ban of a type of advertising that threatens substantial state interests.

In my view, a State could reasonably determine that the use of unsolicited legal advice "as bait with which to obtain agreement to represent [a client] for a fee," Ohralik, 436 U.S. at 436 U. S. 458, poses a sufficient threat to substantial state interests to justify a blanket prohibition. As the Court recognized in Ohralik, the State has a significant interest in preventing attorneys from using their professional expertise to overpower the will and judgment of laypeople who have not sought their advice. While it is true that a printed advertisement presents a lesser risk of overreaching than a personal encounter, the former is only one step removed from the latter. When legal advice is employed within an advertisement, the layperson may well conclude there is no means to judge its validity or applicability short of consulting the lawyer who placed the advertisement. This is particularly true where, as in appellant's Dalkon Shield advertisement, the legal advice is phrased in uncertain terms. A potential client who read the advertisement would probably be unable to determine whether "it is too late to take legal action against the... manufacturer" without directly consulting the appellant. And at the time of that consultation, the same risks of undue influence, fraud, and overreaching that were noted in Ohralik are present.

The State also has a substantial interest in requiring that lawyers consistently exercise independent professional judgment on behalf of their clients. Given the exigencies of the marketplace, a rule permitting the use of legal advice in advertisements will encourage lawyers to present that advice most likely to bring potential clients into the office, rather than that advice which it is most in the interest of potential clients to hear. In a recent case in New York, for example, an attorney wrote unsolicited letters to victims of a massive disaster advising them that, in his professional opinion, the liability of the potential defendants is clear. Matter of Von Wiegen, 101 App.Div.2d 627, 474 N.Y.S.2d 147, modified, 63 N.Y.2d 163, 470 N.E.2d 838 (1984), cert. pending, No. 84-1120. Of course, under the Court's opinion, claims like this might be reached by branding the advice misleading or by promulgating a state rule requiring extensive disclosure of all relevant liability rules whenever such a claim is advanced. But even if such a claim were completely accurate -even if liability were in fact clear and the attorney actually thought it to be so -I believe the State could reasonably decide that a professional should not accept employment resulting from such unsolicited advice. See Ohralik, supra, at 436 U. S. 461 (noting that DR 2-104(A) serves "to avoid situations where the lawyer's exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest"). Ohio and other States afford attorneys ample opportunities to inform members of the public of their legal rights. See, e.g., Ohio DR 2-104(A)(4) (permitting attorneys to speak and write publicly on legal topics as long as they do not emphasize their own experience or reputation). Given the availability of alternative means to inform the public of legal rights, Ohio's rule against legal advice in advertisements is an appropriate means to assure the exercise of independent professional judgment by attorneys. A State might rightfully take pride that its citizens have access to its civil courts, ante at 471 U. S. 643, while at the same time opposing the use of self-interested legal advice to solicit clients.

In the face of these substantial and legitimate state concerns, I cannot agree with the majority that Ohio DR 2-104(A) is unnecessary to the achievement of those interests. The Ohio rule may sweep in some advertisements containing helpful legal advice within its general prohibition. Nevertheless, I am not prepared to second-guess Ohio's longstanding and careful balancing of legitimate state interests merely because appellant here can invent a less restrictive rule. As the Iowa Supreme Court recently observed,

[t]he professional disciplinary system would be in chaos if violations could be defended on the ground the lawyer involved could think of a better rule.

Committee On Professional Ethics and Conduct of Ohio State Bar Assn. v. Humphrey, 355 N.W.2d 565, 569 (1984), cert. pending, No. 84-1150. Because I would defer to the judgment of the States that have chosen to preclude use of unsolicited legal advice to entice clients, I respectfully dissent from Part III of the Court's opinion.


[ Footnote 3/1 ]

Like the majority, I express no view as to whether this is also the case for broadcast media. As the Court observed in Bates v. State Bar of Arizona, 433 U. S. 350, 433 U. S. 384 (1977), "the special problems of advertising on the electronic broadcast media will warrant special consideration."

[ Footnote 3/2 ]

See, e.g., Alaska DR 2-104(A); Ariz.DR 2-104(A); Ark. DR 2-104(A); Colo.DR 2-104(A); Conn.DR 2-104(A); Del.DR 2-104(A); D.C. DR 2-104(A); Ga.DR 2-104(A); Ind.DR 2-104(A); Kan.DR 2-104(A); Mo.DR 2-104(A); Mont.DR 2-104(A); Nev.DR 2-104(A); N.M.DR 2-104(A); N.C.DR 2-104(A); N.D.DR 2-104(A); Okla.DR 2-104(A); Tenn.DR 2-104(A); Utah DR 2-104(A); Wash.DR 2-104(A); W.Va.DR 2-104(A); Wyo.DR 2-104(A).

[ Footnote 3/3 ]

See ABA Model Rule of Professional Conduct 7.3 (1983); Haw.DR 2-103, DR 2-104; Me.Rule 3.9(F); Minn.DR 2-103(A) (in person and telephonic solicitation); S.D.DR 2-103, DR 2-104(A).

[ Footnote 3/4 ]

See Idaho DR 2-104; Ky.DR 2-104(A); Md.DR 2-104(A); Mich.DR 2-104(A); Miss.DR 2-104(A); Neb.DR 2-104(A); N.J.DR 2-104(A); N.Y.DR 2-104(A); Ohio DR 2-104(A); Ore.DR 2-104(A); Pa.DR 2-104(A); R.I.DR 2-104(A); Tex.DR 2-104(A); Vt.DR 2-104(A); Wis.DR 2-104(A).

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