Peel v. Attorney Registration & Disciplinary Commission of Illinois
496 U.S. 91 (1990) (1990)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A state violates the First Amendment's protection of commercial speech when it completely bans a lawyer from advertising a truthful statement that they are certified as a specialist by a bona fide private national organization.
Facts:
- Gary E. Peel, an attorney, was licensed to practice law in Illinois, Missouri, and Arizona.
- The National Board of Trial Advocacy (NBTA), a private organization, established a set of rigorous standards and procedures for certifying lawyers with competence and experience in trial advocacy.
- In 1981, after meeting the NBTA's demanding requirements, Peel was issued a 'Certificate in Civil Trial Advocacy,' which was subsequently renewed.
- Beginning in 1983, Peel's professional letterhead included the following truthful statements: 'Certified Civil Trial Specialist By the National Board of Trial Advocacy' and 'Licensed: Illinois, Missouri, Arizona.'
- There was no evidence presented that any potential client or member of the public was actually misled or deceived by the information on Peel's letterhead.
Procedural Posture:
- The Administrator of the Attorney Registration and Disciplinary Commission of Illinois filed a complaint against Gary E. Peel, alleging his letterhead violated the Illinois Code of Professional Responsibility.
- After a hearing, the Commission's Hearing Panel found Peel in violation of the rule against holding oneself out as a 'certified' 'specialist' and recommended public censure.
- The Supreme Court of Illinois adopted the Commission’s recommendation and censured Peel, holding that the letterhead was inherently misleading and not protected by the First Amendment.
- Peel filed a petition for a writ of certiorari with the U.S. Supreme Court, which was granted.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a state's blanket prohibition on lawyers advertising themselves as 'certified' or as a 'specialist' by a private organization violate the First Amendment when the certification is truthful and verifiable?
Opinions:
Plurality - Justice Stevens
Yes. A state's complete ban on truthful statements of certification from a bona fide organization violates the First Amendment. Petitioner's statement of NBTA certification is a verifiable fact, not an unverifiable opinion about the quality of his services. The claim is neither actually nor inherently misleading; the public is capable of distinguishing between private certification and official state licensure, and the terms 'certified' and 'specialist' do not necessarily imply formal state recognition. While such a claim may be potentially misleading to some, a state's interest in preventing deception is not substantial enough to justify a categorical ban when less restrictive alternatives, such as disclaimers or screening of certifying organizations, are available.
Concurring - Justice Marshall
Yes. While Illinois may not prohibit petitioner from advertising his NBTA certification, the statement is potentially misleading and may be subject to regulation short of a total ban. The name 'National Board of Trial Advocacy' could incorrectly suggest a federal government agency, and its placement next to state licensures could imply state sanction. Furthermore, the claim of being a 'specialist' might lead consumers to infer a higher quality of service without understanding the basis for the certification. Therefore, the state could constitutionally require a lawyer to include disclaimers or additional information to ensure the public is not confused, but it cannot ban the statement outright.
Dissenting - Justice White
No. The state should be allowed to apply its rule to forbid the circulation of petitioner's letterhead in its current form. A majority of the Court (five Justices) believes the letterhead is at least potentially misleading and unprotected in its current form without a disclaimer. Since it lacks such a disclaimer, the state's prohibition is constitutional as applied to Peel. The Court should not be striking down the state's rule but should instead require the petitioner to amend his advertisement to eliminate its misleading potential.
Dissenting - Justice O'Connor
No. A lawyer's claim of certification by a private organization is inherently likely to deceive the public and may be prohibited by the state. The public lacks the knowledge to verify the standards of a private certifying body like the NBTA. The term 'certification' is tantamount to an unverifiable claim of superior quality, which is misleading. Furthermore, juxtaposing the certification with official state licensures implies that the state has sanctioned the certification. States must be given broad latitude to regulate the legal profession to protect consumers, and a complete ban on such misleading claims is a permissible exercise of that authority.
Analysis:
This decision significantly reinforced First Amendment protections for truthful attorney advertising, limiting the power of states to impose blanket prohibitions on commercial speech that is not inherently misleading. The fractured opinions show a deep divide on the Court regarding the potential for consumer deception and the appropriate level of state regulation. The case established the principle that states must use the least restrictive means to regulate potentially misleading speech, pushing them toward disclosure requirements and disclaimers rather than outright bans on advertising certifications from legitimate private organizations.
