Ethics Opinion Articles - NC State Bar Journal

7305 Nights at the Bates Motel

By L. Thomas Lunsford II

It has been twenty years since the United States Supreme Court in the case of Bates v. Arizona State Bar 1 first extended the protection of the First Amendment to the commercial speech of lawyers. Twenty years since Justice Blackmon rubbed a constitutional lamp which had been lost for several decades and released a commercial genie that cannot be recaptured and is rather indifferent to wishes. Twenty years since some lawyers began to advertise and others began to regulate that advertising. The purpose of this series of articles is to highlight those provisions of the new Revised Rules of Professional Conduct (Revised Rules) dealing with lawyer advertising and solicitation and to trace their origins. It is also hoped that by examining the development of these rules, some insight may be gained into the regulatory process itself.

Although the Bates decision was tremendously significant, its holding was fairly limited. The Court simply said that the state cannot constitutionally prohibit a lawyer from advertising his or her willingness to provide certain "routine" legal services at specified prices in a newspaper. 2 The Court went on to note that the state does have a right to prohibit commercial expression which is "false, deceptive or misleading" and to regulate lawyer advertising by imposing reasonable restrictions as to "time, place and manner." 3 Unfortunately, the Court provided little guidance as to exactly what sorts of expression might be fairly characterized as "false, deceptive and misleading" and what kinds of restrictions might be reasonable. The organized bar was left to blindly regulate that which it could scarcely tolerate. Not surprisingly, further litigation ensued as the American Bar Association (the ABA) and various state bar associations, including the North Carolina State Bar, struggled to accommodate the constitutional mandate, often in the most conservative ways possible. Inevitably, several cases found their way to the Supreme Court. The modern history of lawyer advertising and solicitation, and the antecedents of the current rules, can only be understood by reviewing those cases and the reaction of the organized bar to them. Please note that although closely related, advertising and solicitation have generally been treated separately in the rules and the cases. Therefore, they are treated separately in this retrospective as well.

Part One-Advertising

The primary provision concerning lawyer advertising in the Revised Rules is Rule 7.1 entitled Communications Concerning a Lawyer's Services. It is identical to its predecessor in the former Rules of Professional Conduct (Rule 2.1) and to Rule 7.1 of the ABA's Model Rules of Professional Conduct. It provides, in pertinent part, that, "[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. ." Though framed as a prohibition, it is, of course, a very permissive rule in that it authorizes by implication virtually any statement that is not demonstrably false or misleading. When read in concert with Revised Rule 7.2(a), which generally permits advertising through public media, it is evident that in North Carolina lawyer advertising is now officially sanctioned, if not encouraged. This has not always been the case.

When the North Carolina State Bar was established in 1933, a code of professional conduct, the Canons of Ethics, was adopted. The Canons were an interesting amalgam of hortatory statements originally promulgated by the ABA in 1908 to encourage lawyers to pursue only the highest standards of professional conduct. Although they were probably not intended by their draftsmen to serve as the basis for professional discipline, many states, including North Carolina, ultimately appropriated them for that purpose. Canon 27 dealt with advertising. It provided that, ".solicitation of business by circulars or advertisements, or by personal communications or interviews, not warranted by personal relation, is unprofessional." This rule effectively prohibited lawyer advertising for the next forty years, during which time at least two generations of lawyers came to understand that advertising was unprofessional and unethical.

The prohibition of advertising was continued when the North Carolina State Bar adopted its own version of the ABA's Model Rules of Professional Conduct in 1973. Disciplinary Rule 2-101(B) provided that," [a] lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf." This rule, which was identical to the Model Rule, was in place when Bates was decided in 1977.

Shortly after the decision came down, the ABA, as a service to the profession, developed two alternate proposals, Proposal A and Proposal B, for consideration by the states as curative amendments to DR2-101. Proposal A was a "laundry list" rule. It contained an exclusive list of all those kinds of information that might be ethically included in a "dignified" advertisement. The list included such things as the advertising lawyer's name, address, telephone number, date and place of birth, foreign language ability, office hours, and fees charged. Anything outside the list was not within the universe of permissible expression and was prohibited. Proposal B was a much broader rule which foreshadowed North Carolina's current rule. It basically prohibited advertising that was false, deceptive or misleading. Truthful information was essentially unrestricted. In the fall of 1977, the North Carolina State Bar chose the more restrictive rule, Proposal A, and incorporated the laundry list in an amended version of DR2-101. Most other states did the same thing. In addition to adopting the informational laundry list, North Carolina also banned the use of the lawyer's voice or portrait, drawings, illustrations, animations, portrayals, dramatizations, slogans, music, lyrics and pictures. The organized bar held its collective breath and waited for the sky to fall.

For four years relatively little happened in the way of regulatory activity. There was no significant rule-making and not much advertising. Despite predictions that Bates would open the floodgates of shameless hucksterism, not a single violation of amended DR2-101 was officially noted until 1981. In the summer of that year the State Bar filed a disciplinary complaint against a member of the Lenoir County Bar. The lawyer was accused of numerous violations of amended DR2-101 including the publication of unauthorized biographical information, the use of photographs and illustrations, the use of his own voice in a radio spot and the use of the slogan: "We work hard because we care." Since none of the facts were in dispute and the violations of the rule were manifest, the case turned on the constitutionality of the amended rule. In the fall of 1981, the Disciplinary Hearing Commission ruled for the State Bar, finding that the lawyer had committed the alleged violations (except those having to do with illustrations and those charging deception) and that the subject provisions of the Code of Professional Responsibility were constitutional. A public censure was imposed. The lawyer appealed.

While the disciplinary case was on appeal, the United States Supreme Court handed down its second major decision on lawyer advertising, In re R.M.J. 4 The R.M.J. case arose from Missouri, a state which, like North Carolina, had adopted a laundry list variant of Proposal A. R.M.J., an attorney who was entitled to official anonymity under the applicable disciplinary procedures, was charged by the Missouri Bar with publishing unauthorized information in a newspaper advertisement; specifically, his areas of practice and the fact that he was licensed to practice before the United States Supreme Court. Like the censured lawyer in North Carolina, he was subjected to discipline and appealed. In overturning the Missouri action, the Supreme Court declared that it would thenceforth subject restrictions of lawyer advertising to the same basic analysis it employed in commercial speech cases generally. 5 The Court said that inherently misleading speech or speech that has been proven to be misleading may be absolutely prohibited. 6 Other restrictions are appropriate only where they serve a substantial state interest, directly advance that interest, and are no more restrictive than reasonably necessary to serve that interest. 7 Since Missouri was unable to prove that the offending data were misleading or justify the prohibition in terms of any substantial state interest, the restrictions were struck down. 8

The significance of the R.M.J. decision was not lost on the leadership of the North Carolina State Bar. Very soon after the decision was handed down, the State Bar joined with the lawyer who been censured in asking that the North Carolina Court of Appeals reverse the decision of the Disciplinary Hearing Commission on the ground that the provisions of DR2-101 which the subject lawyer was found to have violated were unconstitutional as applied. The Court of Appeals agreed and reversed the decision in a per curiam opinion.

While the disciplinary appeal was running its course, the State Bar's leadership undertook to bring the Code of Professional Responsibility into compliance with the Constitution. In February, 1982, President John W. Campbell appointed a special committee of the council to study the advertising rules and recommend any necessary revisions. The special committee, which was chaired by a very distinguished lawyer from Rocky Mount, Frank P. Spruill, submitted its report to the council in October, 1982. Finding that the existing rules were, "replete with severe and invalid restrictions upon the information that can be communicated and the manner in which it must be communicated," the special committee recommended, among other things, abandoning the discredited laundry list in favor of a rule quite similar to old Proposal B. As proposed by the special committee, the revised version of DR2-101 prohibited lawyers from using or participating in the use of "any form of public communication containing a false, fraudulent, misleading or deceptive statement or claim." Rather than defining the universe of permissible expression, the proposal defined impermissible speech. In place of a preemptive prophylactic ban, it substituted a well understood standard against which offensive advertisements might be carefully reviewed ex post facto . The proposal amply reflected the special committee's view, as expressed in its official report that, " .the time has come for the Council to put aside traditional views on the subject of advertising and solicitation and make an objective effort to fashion regulations that will comply fully with the decisions of the United States Supreme Court and will not be subject to expensive piecemeal invalidation." The North Carolina State Bar Council adopted the rules recommended by the special committee in October, 1982. It is worth noting that this action, which for most of the councilors required a measure of political courage and the subordination of a deep-seated professional aversion to advertising, occurred nearly a year before the ABA promulgated a similar provision in its Model Rules of Professional Conduct.

In July, 1983, another special committee of the council was appointed to review the Model Rules of Professional Conduct and to make recommendations concerning their adoption or partial incorporation into the existing Code of Professional Responsibility. This Committee, which was chaired by the widely respected chairman of the Ethics Committee during that era, Weston P. Hatfield, ultimately produced a comprehensive new set of standards that, upon their adoption in October, 1985, became known as the North Carolina Rules of Professional Conduct. The primary advertising rule, Rule 2.1, was borrowed directly from the ABA's Model Rule. Rule 2.1 was substantively similar to its immediate predecessor. It simply banned "false and misleading" communications. The only significant difference between the two was that Rule 2.1 included a multi-part definition of "false and misleading," which definition was itself further refined in the rule's official comment.

Although the council has commissioned several advertising "study committees" in the years since the adoption of Rule 2.1, there has been no further alteration of this provision. As was noted above, it was imported directly and wholly from the old Rules of Professional Conduct into the new Revised Rules. Although a great many lawyers, including members of the council, believe that advertising and any rule which permits it are subversive of the profession, the North Carolina State Bar has dutifully and reasonably accommodated the advertiser for twenty years. Thankfully, the sky has not fallen. There has been, however, a steady increase in precipitation and, in the opinion of several prominent legal geologists, some rather serious professional erosion. A great deal of the damage is attributable, according to sophisticated observers, to another kind of commercial speech: solicitation and, in particular, targeted direct mail. In the next issue of the Journal , we will review how the State Bar has responded to the challenge of regulating solicitation.

Endnotes

1. Bates v. Arizona State Bar , 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).

2. 433 U.S. at 384.

3. 433 U.S. at 384.

4. In re R.M.J. , 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982).

5. 455 U.S. at 203.

6. 455 U.S. at 202.

7. 455 U.S. at 203.

8. 455 U.S. at 207.

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