Zauderer v. Office of Disciplinary Counsel
471 U.S. 626 (1985)
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Rule of Law:
States may not categorically ban truthful, non-deceptive attorney advertising that contains illustrations or legal advice on specific issues. However, states may require attorneys to include disclosures of purely factual and uncontroversial information in their advertising where such disclosures are reasonably related to the state's interest in preventing consumer deception.
Facts:
- Attorney Philip Zauderer ran a newspaper advertisement stating his firm would represent defendants in drunken driving cases and that their full legal fee would be refunded if they were convicted.
- After being informed by the Office of Disciplinary Counsel that this was an improper contingent fee for a criminal case, Zauderer immediately withdrew the advertisement.
- Zauderer later placed another newspaper advertisement seeking to represent women who had been injured by the Dalkon Shield intrauterine device (IUD).
- This Dalkon Shield ad featured a line drawing of the device.
- The ad provided factual information about the health risks associated with the Dalkon Shield and advised potential clients not to assume it was too late to take legal action.
- The ad stated that cases were handled on a contingent fee basis and that, 'If there is no recovery, no legal fees are owed by our clients.'
- The advertisement did not disclose that clients could be liable for litigation costs, such as court filing fees and expert witness fees, even if their lawsuits were unsuccessful.
- As a result of the advertisement, Zauderer received over 200 inquiries and filed lawsuits on behalf of 106 women.
Procedural Posture:
- The Office of Disciplinary Counsel of the Supreme Court of Ohio filed a complaint against attorney Philip Zauderer, alleging disciplinary rule violations.
- The complaint was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio.
- The panel found Zauderer had violated several rules and recommended a public reprimand.
- The Board of Commissioners adopted the panel's findings but recommended a more severe sanction of indefinite suspension from the practice of law.
- The Supreme Court of Ohio adopted the Board's findings that Zauderer's ads had violated the Disciplinary Rules and that the rules were constitutional.
- The Ohio Supreme Court, however, rejected the recommendation for suspension and instead issued a public reprimand.
- Zauderer appealed the decision of the Supreme Court of Ohio to the U.S. Supreme Court.
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Issue:
Do Ohio's attorney disciplinary rules, which (1) prohibit the use of illustrations, (2) forbid soliciting clients through ads containing unsolicited legal advice, and (3) require disclosure of a client's liability for costs in contingent-fee cases, violate the First Amendment's protection of commercial speech when applied to a truthful newspaper advertisement?
Opinions:
Majority - Justice White
Yes, in part, and no, in part. Truthful and nondeceptive commercial speech by attorneys is protected by the First Amendment, and states cannot impose blanket prohibitions on the use of illustrations or the inclusion of legal advice. However, states may require disclosures that are reasonably related to preventing consumer deception. The prohibition on illustrations is unconstitutional because the illustration here was accurate and not misleading, and the state's asserted interest in maintaining professional 'dignity' is insufficient to justify the ban. The prohibition on offering legal advice in an advertisement is also unconstitutional as applied here because the ad's information was accurate and the state's general interest in preventing lawyers from 'stirring up litigation' is not a legitimate basis for suppressing truthful information about legal rights. The risks of overreaching associated with in-person solicitation, as seen in Ohralik, are not present in print advertising. In contrast, the state's requirement to disclose information about litigation costs is constitutional. The phrase 'no legal fees' could mislead a layperson into believing representation would be entirely free in an unsuccessful case, without understanding the distinction between 'fees' and 'costs.' Therefore, requiring a disclosure to clarify this potential misconception is reasonably related to the state's substantial interest in preventing consumer deception.
Concurring-in-part-and-dissenting-in-part - Justice Brennan
Yes. While agreeing that the state cannot ban illustrations or legal advice, the state's punishment of Zauderer for omitting cost disclosures violates due process. The disclosure rules applied to Zauderer were unconstitutionally vague and failed to provide fair notice of what was required. An attorney cannot be punished for failing to comply with a requirement that the state itself failed to clearly articulate beforehand. Furthermore, the disciplinary process regarding the drunken driving ad was flawed because Zauderer was found to have violated a rule based on a theory that was never part of the original complaint, depriving him of the opportunity to present a defense on that specific issue.
Concurring-in-part-and-dissenting-in-part - Justice O'Connor
No, in part. While agreeing with the majority on the illustration and disclosure issues, the state's ban on using unsolicited legal advice in advertisements should be upheld. State regulation of professional advice is fundamentally different from the regulation of commercial products. The state has a substantial interest in preventing attorneys from using legal advice as 'bait' to entice clients, as this creates a risk of the advice being colored by the attorney's pecuniary self-interest. This risk of overreaching justifies a prophylactic rule prohibiting lawyers from accepting employment that results from unsolicited advice in an advertisement, similar to the Court's deference to the state's ban on in-person solicitation in Ohralik.
Analysis:
This case establishes a critical distinction in the level of scrutiny applied to different regulations of commercial speech. It clarifies that while outright prohibitions on truthful, non-deceptive attorney advertising are subject to intermediate scrutiny under the Central Hudson test, compelled disclosures are subject to a more deferential 'reasonably related' standard. This creates a two-tiered framework where it is significantly easier for the government to mandate additional speech to prevent deception than it is to prohibit speech altogether. The decision reinforces the protection for truthful attorney advertising against paternalistic state interests like 'dignity' or preventing the 'stirring up' of litigation, solidifying the principles from Bates.
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