IN RE R. M. J.
Legal provision: Amendment 1: Speech, Press, and Assembly
ORAL ARGUMENT OF CHARLES R. BLACKMAR, ESQ., ON BEHALF OF THE APPELLANT
Chief Justice Burger: We will hear arguments next in No. 80-1431.
Mr. Blackmar: Mr Chief Justice, and may it please the Court, the question in this case is whether a state may adopt rules relating to legal advertising when the necessary effect is to inhibit advertising which is truthful, effectual, not misleading, and beneficial to the public.
Unidentified Justice: Well, Mr. Blackmar, as to the particular facts of this case, supposing we were to conclude that under Bates the rules adopted by the Supreme Court of Missouri were unconstitutional.
Would we be free to roam at large beyond this particular rule and say that A, B, C, D are permitted, but E, F, G are not?
Mr. Blackmar: I plead a particular case for a particular client, Your Honor.
I would say that the decision should respond to the case.
I would say, though, that this form of rulemaking in which the Supreme Court of Missouri says, this you may say and nothing else, would be invalid.
I am not here to argue about what rules the Supreme Court of Missouri might adopt.
Bates specified quite a few suggestions, such as arguing about the quality of legal services and things like that.
The Supreme Court of Missouri did not follow those suggestions.
It adopted a rule listing ten permissible categories of information, and saying this is all that a lawyer may advertise.
I want you to hold that rule invalid.
What other rules they might adopt, that is not my problem at this stage.
Unidentified Justice: To reverse the judgment, we wouldn't even have to hold that rule invalid, would we?
All we would have to say is that your client should not have been privately reprimanded for advertising as he did because his advertisement was permitted under the Constitution.
Mr. Blackmar: You would have to say that, but I believe you would necessarily have to say that the rule that says that this you may say and nothing else is invalid, because that rule would necessarily inhibit protected speech.
Now, the balance of the Missouri rule, the A part of the rule, which talks about advertising that is misleading, self-laudatory, and so forth, you wouldn't have to touch.
That is not involved in this case.
That is not charged.
Of course, there is another part of this case, Your Honor, Your Honors, that the Missouri rule completely denies the mail as a medium of legal advertising.
We argue very strongly that the same advertisement that could be published in the newspaper could be sent in the mail, and so that is another part of the case which supports the judgment of the Supreme Court of Missouri.
It is not discussed in the least in the opinion of the court, but nevertheless, it certainly is present in the case, because it consists of one of the four charges.
Unidentified Justice: Now, every member of the bar, in order to practice in the state, must be a member of this association, Is that right?
Mr. Blackmar: Yes, it is an integrated bar.
Yes, Your Honor.
Your annual license fee makes one a member of the bar.
But now, I might say there is much misunderstanding on this, that the disciplinary proceedings are something that the Missouri bar has nothing to do with.
Those have been totally pre-empted by the Supreme Court of Missouri, and by a constituent body called the advisory committee of the Missouri bar.
Unidentified Justice: You mean they are the enforcement arm?
Mr. Blackmar: They are the enforcement arm of the Supreme Court.
I think that is important, because they are selected by the Supreme Court.
Unidentified Justice: Are they not in effect the enforcement arm of the integrated bar, too?
Mr. Blackmar: I would say that the enforcement proceeding is entirely in the hands of the Supreme Court.
The integrated bar has no authority in these premises.
The confusion of terms, I submit, is the responsibility of the court, which has created these two bodies which have Missouri bar in them.
Disciplinary proceedings are the province of the court entirely.
I think the greatest vice in the rule under consideration is that it does something that is unprecedented in First Amendment experience, and that is to have a system in which the regulatory authorities specify the manner of speech, rather than leaving it to the speaker to select his or her own form of expression, subject to proper rules that might be drafted, and subject to the rules which the Supreme Court of Missouri has but which are not involved in this case, which prevent the freedom of speech.
Unidentified Justice: Now, this, I gather, is the prior restraint argument?
Mr. Blackmar: I think it would be a prior restraint argument.
It says, this you may say and nothing else.
Now, it is a rule of general application, Your Honor.
There is no provision for applying to the advisory committee or to the court for permission to advertise in a particular way.
The Appellant, the lawyer tried that.
He sent this ad to the advisory committee, and was curtly told that it does not comply with the rules because it has unauthorized matter.
So, I think that there is no question at all that this is a prior restraint in that it absolutely forbids certain forms of expression.
Unidentified Justice: The rule prohibiting self-laudatory advertising would likewise be a prior restraint then, wouldn't it?
Mr. Blackmar: It would be present, in that it does not pass in advance on what the speaker says.
In other words, he takes a chance that something that he might say might be found to be a violation of the self-laudatory rule.
By the way, that is not charged in this case, Your Honor.
Unidentified Justice: But the two, both of them would be prior restraints.
Mr. Blackmar: Well, I am thinking of the prior restraint as something that says that unless you can fit something into these particular categories, you may not say it, and I think that would be different from the self-laudatory ad, which seeks to provide an external standard.
By the way, I am not here to talk about the validity or invalidity of prohibition on self-laudatory statements, but I think that that sets an external standard that the speaker has to conform to.
It doesn't really... it doesn't really prohibit the speaker from using his or her own language.
It simply says that if you transgress this line, you nay be subject to censure.
Now, the rule before us says that if you say anything such as this appellant said, he was licensed to practice in Missouri and Illinois, and they say you can't say that, or if he said he was licensed to practice in the federal court, that is not one of the things that is listed, so it can't be said.
Unidentified Justice: Would it be appropriate in your view for a lawyer who practiced personal injury law to say that my average verdicts over the past 12 months have been $129,000, assuming that is a fact?
Mr. Blackmar: I would note foreclose the right of the state to regulate something like that, because I think the state might well feel that it was misleading, Your Honor, and it didn't talk about the case, it might present an odious comparison.
Yes, I would think, and we have said, that if the state would adopt a rule that said, in effect, that one may not advertise the results of his litigation, the size of his verdicts, or the number of acquittals, or something like that, I would not foreclose that kind of rule.
That is not this case, and so I am not going to argue about it.
Now, until they have some valid regulation like that, I would say that Your Honors' Central Hudson opinion would stand in the way of doing that under a rule that is not narrowly drawn.
Unidentified Justice: There still would be some prior restraint element, would there not?
Mr. Blackmar: Yes, and perhaps you can't completely foreclose prior restraint when you are talking about commercial speech.
Unidentified Justice: So there would be a balancing problem with respect to the nature of the ad.
Mr. Blackmar: I think there would be a balancing problem.
I believe at the time the SEC Act was passed in 1933 and 1934, I don't believe that at that time it was really thought that commercial speech was subject to First Amendment protection, but there one certainly has a kind of prior restraint.
You have to submit your--
Unidentified Justice: Mr. Blackmar, ever since we have had ethics and codes we have had prior restraint, haven't we?
Mr. Blackmar: --Well, I suppose that prior restraint is inherent in a regulation of commercial speech.
Unidentified Justice: Well, isn't the admonition against ambulance chasing a prior restraint?
Mr. Blackmar: Yes, and of course--
Unidentified Justice: Stay away from ambulances.
Mr. Blackmar: --Of course, in the Ohralik opinion the Court did balance one's right to speak against the inhibitory effects of allowing a person to person solicitation.
Unidentified Justice: Well, the Court has never said, has it, that prior... the prohibitions against prior restraints are absolute.
Mr. Blackmar: I would say that is correct, Your Honor, and I would say in commercial speech that it would have limited application.
Unidentified Justice: It would be weaker there, would it not?
Mr. Blackmar: It would be weaker, but what the Court has said, though, is that specifically legal advertising, which is truthful and not misleading, is protected speech which may be regulated only by narrowly drawn rules directed to the purpose, and I think that that really is sufficient to dispose of both parts of this case, which involve an absolute prohibition against a printed ad containing something that is not specifically prohibited, and an absolute prohibition on the use of the mails as a medium of legal advertising.
I think we will pretty much stand on that, that whatever the state might do in the way of regulating legal advertising, and it may do considerable, it cannot do it by the form of rule that is involved in both parts of this case.
By the way, the first rule, the Rule 2-101(B), which relates to credit advertising, is a rule adopted by the Supreme Court of Missouri in response to Bates, but the second rule, Rule 102(A)(2), regarding mailed announcements, is a pre-Bates rule.
I think on the ground that the court below did not consider that Bates applied to mail advertising.
Unidentified Justice: Mr. Blackmar, thinking about mail advertising, let's assume that a lawyer had access to the names of people who were admitted to the emergency room of a great hospital in a large city.
Could he use that list of names to send invitations to come to see him when they got well enough?
Mr. Blackmar: I thought I might be asked that question, Your Honor.
That is a situation in which you would have to decide just how far your Ohralik opinion went.
I have read the Ohralik opinion many times, and it laid great stress on the coercive force of the lawyer at the hospital with his contracts all ready to get signature.
Now, I have a hard time seeing how a letter could be coercive in that sense.
Maybe the Court would feel that a letter to a person in a particularly vulnerable position might have some of the vice of Ohralik, so I wouldn't foreclose that kind of regulation.
By the way, the mailing involved in this case consisted of two simple tombstone ads.
I think it could not possibly be considered misleading.
All they said is, here I am, here is my address, here is my phone number, I have opened a law office.
Unidentified Justice: Let me ask you about... you say that it couldn't possibly be misleading.
Am I correct in thinking that the tombstone ad, the first bar that your client indicated he was admitted to was the bar of this Court?
Mr. Blackmar: Not in the tombstone ad.
Unidentified Justice: Not in the tombstone.
Mr. Blackmar: Not in the mailed ad.
The mail was--
Unidentified Justice: That is in the yellow pages?
Mr. Blackmar: --That is only in the yellow pages, Your Honor.
Unidentified Justice: Now, how can you justify... what possible value was there in putting that information in an ad that went to the general public?
Mr. Blackmar: I suppose the general public would have to decide that.
That is something that lawyers quite frequently advertise in Martindale.
We have found over 100 in Missouri.
I would argue for allowing the lawyer to say something that is truthful, such as that he was an Eagle Scout, or an all-American halfback.
Unidentified Justice: How does that information help a potential client make his decision as to whether or not to retain that lawyer?
Mr. Blackmar: You might doubt very much that it does, Your Honor.
Unidentified Justice: Anyone who has a case in this Court probably knows that he can find a lawyer who is either admitted or can get admitted to practice here.
Mr. Blackmar: And I noticed the Chief Justice's expression on the subject of admission of the last term that I would say that that could be questioned.
If a state felt that that information were undesirable, they would have two courses--
Unidentified Justice: Or potentially misleading.
Mr. Blackmar: --If they thought it were potentially misleading.
Unidentified Justice: And it is potentially misleading, isn't it?
Doesn't it suggest that the man has a special qualification that he really doesn't have?
Mr. Blackmar: I doubt that it is, really, Your Honor, because I think it is--
Unidentified Justice: Mr. Blackmar, how far does that rule go?
Under our Rule 5, after you have paid your $100, you get a nice, pretty certificate.
You have it framed, and you hang it on your office wall or you hang it in your window, I or on the front door.
Does this rule prohibit that?
Mr. Blackmar: --Of course, the rule does not prohibit that because it relates only to credit advertising.
You can still put your certificate on your wall, and you can still--
Unidentified Justice: Well, this is printed.
It is supposed to be engraved, but it is not, really.
It is just printed.
Mr. Blackmar: --Well, I don't know... I don't know that the regulatory authorities have ever gone that far, Your Honor.
Unidentified Justice: Well, might not that case arise if we say that this was wrong?
Mr. Blackmar: I suppose they would charge that that was an advertisement, too.
Unidentified Justice: If it is printed, it is deceptive in two ways.
Mr. Blackmar: If they think it is... if they think it is a bad thing.
Unidentified Justice: What about a young lawyer sending out an advertisement that he had never lost a case.
Mr. Blackmar: I would say that they might charge him with sending out a misleading ad under the rule which exists for that purpose.
Unidentified Justice: He hasn't lost one.
Mr. Blackmar: If they are concerned about that, then they can adopt a rule.
By the way, if they think that there is any danger in a lawyer announcing that he is a member of the bar of this Court, I suggest two courses, one, charging him with a misleading ad, which he wasn't charged with, or two, adopt a specific rule, and I would say then apply it to the people in Martindale.
Unidentified Justice: Mr. Blackmar, is it proper in your view for the state bar to prohibit presumptively misleading ads, not those which are actually misleading, but those which might easily be perceived as such, those which are--
Mr. Blackmar: Yes, I think that would cover some of the things that have just been discussed, Your Honor.
I would say that if they wanted to adopt a narrowly drawn rule having that purpose, if they concede that there is a danger in certain information, then the courts might be faced with a balancing task.
Specifically, I would say that the size and verdicts, results received, or Justice Marshal's never lost a case, things like that, I think, could very probably be prohibited by a specific rule.
Unidentified Justice: --Let me ask you another question relating to this case.
Was the attorney in this case disciplined also for his failure to include the disclaimer language in the ads which were published?
The rule required apparently that any ad listing an area of practice indicate in bold print that the listing of the areas of practice does not indicate any certification of expertise.
Mr. Blackmar: The record shows that he included the required disclaimer, as soon as he was aware of it.
Now, we do not challenge the disclaimer as such.
That was specifically recognized by the Bates opinion as one means that the state bar might use.
We do believe that the disclaimer could be misleading, because Missouri does not choose to certify anybody as a specialist.
Under those circumstances, we believe that the attorney ought to be able to state that fact along with the disclaimer, because otherwise the reader might get the idea that--
Unidentified Justice: But that is not before us.
Mr. Blackmar: --That is not before us.
No, Your Honor.
Unidentified Justice: And it is your position that in fact it was included and that the disciplinary action was not based in any way on the failure to include the disclaimer?
Mr. Blackmar: The disciplinary action was not based on a failure to include the disclaimer.
Furthermore, the court has made it quite clear that it... the court below, that it believes that this rule is valid, that it will enforce it unless the result is otherwise in this Court.
Unidentified Justice: Mr. Blackmar, getting back to advertising that one is admitted to practice before this Court, I gather your client never in fact had a case... never appeared here to argue a case.
Is that right?
Mr. Blackmar: Not to my knowledge, Your Honor.
I don't know--
Unidentified Justice: Yes.
Well, I noticed from your application that this is your first appearance.
Is that correct?
Mr. Blackmar: --This is my first appearance in argument.
Unidentified Justice: Would you be in a different position, do you think, now, to advertise that you are qualified to and admitted to practice before this Court even though he couldn't?
Mr. Blackmar: I have asked to get in here many times, Your Honor, and--
--have not had the chance.
Unidentified Justice: But are you in a different position now that we finally did grant one of your petitions and you are finally able to argue a case here?
Mr. Blackmar: Well, I--
Unidentified Justice: Would it be misleading for you to advertise now that you are admitted to practice before this Court?
Mr. Blackmar: --Well, at least I did get here once.
That is about all I could say.
Unidentified Justice: Do you think admission to this Court and the certificate that accompanies it would convey to the ordinary layman any notion or the notion that the person is specially qualified, more qualified than the hundreds of thousands of lawyers not admitted to this Court?
Mr. Blackmar: I doubt that it would, Your Honor.
As I say, members of the bar do quite regularly list that in the legal directories, but I don't believe... I don't think it would.
Unidentified Justice: A representation emphasizing... an ad emphasizing that one was admitted to the bar of this Court, if the purpose of it is not to entice some clients, what is it?
Mr. Blackmar: I suppose that he probably took his lead from other members of the profession who publish the fact quite freely.
I suppose also the purpose of any advertising isn't to entice clients.
I wouldn't question that.
Unidentified Justice: But entice clients for the specific purpose of handling a case in this Court.
Mr. Blackmar: I doubt that a person would look in the newspapers to try to find that, just as I doubt that a person would look in the newspapers to try to find a lawyer who practices financial institution law, such as the committee permits, or international law.
Unidentified Justice: I take it you would concede that the admission to the bar of this Court and the receipt of the certificate standing alone doesn't distinguish a lawyer from every other lawyer that practices in his own state.
Mr. Blackmar: I think it is no great distinction.
It is a credential that one requires to do certain things.
Unidentified Justice: Well, I wonder, Mr. Blackmar.
For example, it is certainly true that rarely does... I don't know when we will see you again.
I hope soon, but it is not often that private practitioners get more than once chance to come here.
Suppose you are employed in the Solicitor General's office.
We have had members of that staff who have argued as many as 50 cases here.
Now, if they go back to practice in Missouri, you don't think they would be qualified to advertise that they are admitted to practice here, and have?
Mr. Blackmar: You might have an ad in which one says, I have argued 50 cases in the Supreme Court.
That appears to me to be the plainest fact, and I don't know why somebody couldn't publish it for those who were interested in knowing it.
Unidentified Justice: But that is very different from the hypothetical I was suggesting to you.
I said that the possession of that certificate standing alone, by which I meant to exclude any experience in this Court, doesn't add anything to the person's qualifications except that it is a representation by this Court that we found that he was admitted in the state of Missouri or wherever.
Mr. Blackmar: It means that he could file papers that others couldn't file, Your Honor.
If there are no questions, I will reserve the rest of my time.
Unidentified Justice: Mr. Blackmar, I would like to ask you a question.
Do you think that it would be proper and not subject to state bar regulation for an attorney to send out letters to people who are listed in the newspaper as being widows of recently deceased spouses, listing an area of expertise or practice as representation of widows?
Is that something that the state could not properly reach?
Mr. Blackmar: That, I think, could very well be considered, along the Ohralik line of a statement that might have a coercive potential, and I think that the state might reach something like that by an appropriately drawn rule, but not by a blanket inhibition of the mail.
Thank you, Your Honors.
Chief Justice Burger: Mr. Inglish?
ORAL ARGUMENT OF JOHN W. INGLISH, ESQ., ON BEHALF OF THE APPELLEE
Mr. Inglish: Mr. Chief Justice, and may it please the Court, the discussion that has been going on most recently in this presentation by Mr. Blackmar I think really gets at the heart of the issue, which I believe the Court was trying to cover in the Bates case.
I think in the Bates case that what the Court was saying was, we believe there should be more information flowing freely and cleanly to the public so as to enable the public to have a more intelligent way of making a decision in the selection of a lawyer.
Incident to that, of course, was this lawyer's First Amendment right to speak, which is, of course, present in any commercial speech case.
I think what the Court has to do is weigh these rights and these objectives in the balance.
We have seen that following Bates, a number of courts have arrived at entirely opposite conclusions as to what is necessary in order to achieve this balance.
That is, to enable the lawyer to speak freely, so that the public will be more informed, which it must be, and with which we concur, and at the same time protect the public from potentially misleading or deceptive statements.
The statement with regard to the courts in which the lawyer is admitted, I think, is potentially misleading.
I think that information is of value to other lawyers, and it is published in professional publications.
I think it is necessary for referral work.
But I don't believe--
Unidentified Justice: Mr. Inglish, getting back to the colloquy with your colleague, what about the certificate of admission to the bar of this Court that you post in your office?
Does that come within the prohibition?
Mr. Inglish: --I don't think so, Your Honor.
I think that... within my office, I think that is entirely appropriate.
I have others there, and I intend to put this one there when I get back.
It took me 31 years to get here, and I value the experience, but I don't believe that is quite the same--
Unidentified Justice: But I gather this prohibition is rather a flat one, isn't it, against advertising that you are a member of the bar of this Court?
Mr. Inglish: --Advertising, yes, but I think it means advertising in the yellow pages, to the public generally.
Unidentified Justice: I see.
Mr. Inglish: I think there is a difference between that, Your Honor, and the client who comes into my office.
He is already there for some purposes, and seeing this did not get him there.
Unidentified Justice: While I have you interrupted, Mr. Inglish, is there any maritime or admiralty practice of any consequence in Missouri?
You do have some navigable streams.
Mr. Inglish: There is some admiralty practice in St. Louis, Your Honor.
Unidentified Justice: Are there some who engage only in the admiralty practice?
Mr. Inglish: I understand that there are.
Unidentified Justice: And yet they are not permitted to advertise that, are they, under this--
Mr. Inglish: Under admiralty, I don't recall that they are.
I thought there was a rule broad enough to encompass that.
Unidentified Justice: --I don't find either it or--
Mr. Inglish: Patent?
Unidentified Justice: --or maritime.
Mr. Inglish: --the admiralty, patent, and... were permitted, I think, in another rule.
Unidentified Justice: They are under another rule?
Mr. Inglish: I think... well, at another place in this rule.
I think that the exception... I believe.
I may be mistaken, Your Honor, but I know that... and I did not particularly look at it with regard to admiralty or patent.
A great many states have accepted that as a traditional specialty.
Unidentified Justice: Well, we have a decision, don't we... I can't recall the name of it... which held that a state couldn't disbar a patent lawyer for a patent... that that was something that had to be done by the Court of Customs and Patent Appeals to which he was--
Mr. Inglish: I don't recall, Your Honor.
I don't recall.
Unidentified Justice: --Mr. Inglish, you take your position even though St. Louis, as is Kansas City, is on the border of a great state?
They are great cities on the border of a great state, and you think it would not be of some help to a litigant, a St. Louis resident who was injured in an automobile accident in East St. Louis, when he is looking for a lawyer, to know that he is admitted in the state of Illinois?
Mr. Inglish: No, Your Honor, I would have to frankly concede that that could be of value in those two areas.
I think what we are talking about, though, is the blanket advertising of courts in which one is authorized to practice, starting from this Court and going on down.
Unidentified Justice: Of course, lawyers do this all the time on their professional announcements, so we get them every day.
Mr. Inglish: Yes, sir, that is correct.
Unidentified Justice: And here in Washington, every firm has a string that people asterisk, licensed to practice in California, but not in the District, and so forth and so on, right on their letterhead.
Mr. Inglish: Yes, Your Honor.
Unidentified Justice: Is this all right?
Would it be all right under your Missouri bar rules?
Mr. Inglish: On the letterhead?
I doubt very seriously that it would, Your Honor.
That might be considered as advertising, and improper advertising.
Unidentified Justice: Why is that misleading, Mr. Inglish?
Mr. Inglish: Justice O'Connor, I think it is potentially misleading in that it could convey to the layman that this lawyer has certain expertise that the other lawyer does not have, and being admitted to this Court I don't think indicates any such expertise, nor being admitted in, for example, the United States Court of Appeals, or various other places.
Unidentified Justice: Or admitted to the bar of another state?
Mr. Inglish: That could have... that could have some value to a potential client.
Yes, I would have to concede that.
Unidentified Justice: And aren't we dealing with that here, in this case?
Mr. Inglish: We are dealing with that plus the I general rule that the state has prohibiting... well, actually indirectly prohibiting the listing of courts in which you are authorized to practice, because, as Mr. Blackmar has stated, the rule says you may say this and nothing else, and it is not one of those things authorized.
Unidentified Justice: Do you think... Go ahead.
In Justice Blackmun's question, with the asterisks showing admitted to practice in California but not in the District, might not that supply an additional element of truth, if the firm's letterhead says Washington, D. C., and lists these people as partners, but then the asterisks show that they are not actually admitted to practice in the District, but only in California?
Mr. Inglish: That could be useful information.
Yes, Your Honor.
I would have to concede that.
Unidentified Justice: Mr. Inglish, in Missouri are your attorneys prohibited from running for office?
Mr. Inglish: No, Your Honor.
Unidentified Justice: Of course not.
Mr. Inglish: No.
Unidentified Justice: And there you advertise everything.
Mr. Inglish: And the rule expressly--
Unidentified Justice: And they do.
Mr. Inglish: --Yes, sir.
And the rule expressly provides for that.
It says you may do that.
Unidentified Justice: And they do.
Mr. Inglish: You may identify yourself as a lawyer.
Unidentified Justice: And don't you have some lawyers that have never had political offices, they just run every two years just so they can advertise?
Mr. Inglish: That does happen.
The prosecuting attorney is the best--
Unidentified Justice: There is nothing you can do about that.
Mr. Inglish: --I beg your pardon?
Unidentified Justice: There is nothing the state can do about it.
Mr. Inglish: No.
As a matter of fact, it is recognized as a permissible item of advertising, I suppose.
Unidentified Justice: Mr. Inglish, one of the limitations in the rule in question and at issue here is a requirement that if a lawyer advertises expertise in the field of tort law, that the words "tort law" be used.
Do you think that the public generally understands that better than personal injury law?
Mr. Inglish: Your Honor, that has been changed to negligence.
It started out as tort law, and somebody suggested... I don't know how it happened... to the court that maybe a better word would be negligence.
The appellant here wanted to use a term, and did use "personal injury".
Now, to me, the word "negligence".
I don't think he has been harmed in any way, because I think he can include in his advertisement more than he wanted to include.
Unidentified Justice: But do you think that the use of the terms "personal injury actions" is somehow presumptively misleading in this context?
Mr. Inglish: Your Honor, if we got into a subjective test of whether or not this Appellant has the expertise to hold himself out as practicing law in the area of personal injury, it might be misleading, but that would be a subjective test.
We have cited the case of Zimmerman in New York, where, as I understand the rule, it is simply that you can advertise anything you want to as long as it isn't false, misleading, or deceptive.
This young lawyer put his name under each of the categories in the yellow pages, and then after the fact the disciplinary body said, but you don't have enough expertise in all these areas to hold yourself out in this.
Therefore, they reprimanded him, disciplined him.
If I might just a moment address what my personal thoughts are on that question, I think again that what this Court is seeking to do is to provide information to the public to enable it more intelligently to select a lawyer.
I think if the bar is at fault, it is in the fact that we don't have specialization, which as Mr. Blackmar says, we do not have in Missouri.
A great many states do.
We do not... now, as a matter of fact, there are specialties, as has been pointed out here, in admiralty.
There are a great many in Mr. Blackmar's city, St. Louis, who do nothing but medical malpractice, who do nothing but personal injury work, who do nothing but workers' compensation, and so forth.
Now, I think it is inherently misleading, as has been pointed out even by Mr. Blackmar and in the... I believe maybe one of the amicus briefs, that when you say I practice in these areas, whatever you call it, whether you call it personal injury, or worker's compensation, or whatever it is, and then at the bottom say, but I don't hold myself out as having any expertise therein, you have confused, at least, the public, because I thought the idea was that we were to assist this public in finding a lawyer who did have expertise.
Unidentified Justice: But isn't that precisely what the Missouri regulation permits, since it doesn't have certification, it requires the disclaimer, and it says, you will use only these areas of specialty in these descriptive terms.
Mr. Inglish: That is correct, Justice O'Connor, and frankly, if I were drafting the rule, I would opt for what Tennessee did, in effect.
They went a little too far, because they wouldn't even permit the routine matters which this Court said you cannot suppress, of the simple will, the uncontested divorce, and so forth.
But what I would do, frankly, if I were drafting the rule, which I think would be less misleading to the public, would be to say, you may advertise the availability and the prices of these routine legal services, which Bates said you could do.
As a matter of fact, I think the Court was quite careful to make it clear that you intended to limit that case to that situation, the availability and prices of routine legal services, list them, and incidentally, courts differ as to what they are.
Iowa has one list, Missouri has another.
But nevertheless, whatever it is.
And then say, we will not prohibit lawyers... I mean, we will not permit lawyers to hold themselves out as practicing in any area until and unless we do have specialization, as Tennessee did.
Unidentified Justice: Mr. Inglish, may I interrupt?
Mr. Inglish: Yes.
Unidentified Justice: I think I may be troubled by something that Justice O'Connor asked you.
You are suggesting it could have been a better rule.
Tort isn't the most informative rule to describe a personal injury specialist, or a medical malpractice specialist.
But do you defend this rule as being constitutional?
Do you defend the judgment of the court below?
Mr. Inglish: Your Honor, yes, I do defend the rule.
Unidentified Justice: You think it is adequate to say "tort" and forbid any other word?
Mr. Inglish: As I answered Justice O'Connor, that word was changed to negligence.
Unidentified Justice: Yes, but he was disciplined because he did not use the word "tort".
Is that not correct?
Mr. Inglish: Well, yes, that is correct.
Unidentified Justice: Now, do you defend that discipline?
Mr. Inglish: Yes, sir, I do, Your Honor.
Unidentified Justice: So you really cannot rely on the fact that now they say you can use the word "negligence".
Mr. Inglish: Well, no.
That is true.
It has been changed.
But that was only part of--
Unidentified Justice: And do you not also agree that tort is by no means the most informative word to describe that kind of practice?
Mr. Inglish: --I would agree with that.
Unidentified Justice: And yet you defend--
Mr. Inglish: But that is only one of the items, Your Honor.
Unidentified Justice: --No, but it is perhaps an important item to a large number of people who would be using this kind of method of finding clients.
Mr. Inglish: Unfortunately, Justice Stevens, the court below did not tell us which of these items it was considering as violative of the rules--
Unidentified Justice: It really didn't tell us very much, did it?
Mr. Inglish: --They certainly did not.
No, sir, Your Honor.
They just said, we hold our rules out, but--
Unidentified Justice: But if we should say that in any respect, because of the way they handled it, they had violated the Constitution, then this judgment has to be reversed, doesn't it?
Mr. Inglish: --Yes, Your Honor, that is true.
Unidentified Justice: No matter in what respect we find it--
Mr. Inglish: That is true, and there has been some discussion prior to this concerning the fact that perhaps you could do it on, you know, reverse on various bases.
Unidentified Justice: --Well, it is enough if they were wrong as to any one of them--
Mr. Inglish: That is correct.
Unidentified Justice: --since they didn't tell us what they rested it on.
Mr. Inglish: That is correct, Your Honor, and there has been discussion that this case is limited to the facts before the Court, but so was Bates, and I have a very strong feeling that regardless of what this Court does, whether it affirms or reverses, or reverses and remands, its opinion is going to receive construction which is going to be hopefully of some help to the courts that are faced with this problem, to conform with Bates, and I would hope that the Court would engage in enough discussion that regardless of what it does, whether it affirms or reverses, that the disciplinary bodies, the bodies having jurisdictions over lawyers in the various states would have a better idea of how to conform with Bates and permit advertising.
Unidentified Justice: But aren't we in a dilemma there, in that we are supposed to make pronouncements only governing the facts of the particular case, and yet obviously there is some necessity for a broader discussion, and yet that would go beyond our responsibility to decide Article II cases--
Mr. Inglish: Your Honor, it would constitute dictum to an extent... but I know this Court is aware, we have made it aware in briefs, certainly, of the discrepancies that the various jurisdictions have concerning their feeling about what they may do and must do and cannot do following Bates.
The Court has been made aware of a number of advertisements that have appeared by lawyers.
For example, I sent in the Time Magazine one showing the hearse with no frill wills, $15.
I don't believe honestly that that is what this Court intended to encourage.
I don't believe that is the sort of thing that enables people to more intelligently select a lawyer.
Mr. Blackmar has cited the work by Lori Andrews on Birth of A Salesman, who is advocating the Madison Avenue type of approach, and there also she has a number of commercials that are shown on television, radio, newspapers, which have been approved and are permitted, for example, in Wisconsin, because apparently that state feels it must do so, must permit this pursuant to Bates.
Therefore, as I said earlier, regardless of what this Court does, I think its discussion, dictum, or whatever it might be or otherwise, is going to be construed as some guideline to the other courts.
Unidentified Justice: --But I must say, Mr. Inglish, as my Brother Rehnquist just suggested, if this is a case for the application of the Stromburg rule, as I think you just told me you thought it was, if we find anything at all that violates the First Amendment, which is the issue tendered to us, then we under Batchelor and Maryland, we just don't reach these other issues.
We simply set aside the judgment, that is all, and not go into whether or not all the other things similarly present constitutional infirmities.
Mr. Inglish: Well, you are right, Your Honor, but I anticipate... I hope that the decision will be a little more far-reaching than that, and be construed along with Ohralik, Primus, Bates--
Unidentified Justice: It has been suggested on occasion that we have written opinions that go outside the--
Mr. Inglish: --And in this case I would certainly hope so.
Unidentified Justice: --Well, if what the organized bar in the various states is seeking is some sort of test that will enable the various organized bars to establish rules and the test laid down in Bates as I understand it is that it be not misleading or false, and I would think that a chain drugstore advertisement supplement that appears in most big daily papers, if it says 2.99> ["], and if they do have window cleaner for $2.99, that would be neither false nor misleading.
Mr. Inglish: But, Your Honor, I don't think that is the sole test, when you go beyond the routine legal services.
As I understood Bates, when it said not false, misleading, or deceptive, it was talking about routine legal services, not the other areas, which I think that perhaps Missouri and other states have gratuitously gone beyond in permitting advertisement of other areas of practice.
I don't believe Bates went so far as to say that you may advertise anything you want to as long as it isn't false, misleading, or deceptive.
Now, some states have such a rule apparently construing this, but I would hope that the Court would not adopt such a rule or enforce such a rule upon the states, because it is subjective in nature, and we were talking about prior restraint earlier here.
To me, that is prior restraint, when you say to me, you go ahead and say whatever you want to and I will tell you later whether it is all right or not.
Alabama has one.
You may say what you want to, and you mail it in within three days.
Unidentified Justice: But, Mr. Inglish, that doesn't respond to the problem of this case, because there is no reason, in light of what your present argument is, why the Missouri bar couldn't have said the following expressions will be permitted, but it did not need to go on and say nothing else will be permitted.
Mr. Inglish: Well, again, then you leave the door open, because if you are going to authorize a listing of areas, and you are going to give areas of practice, somebody is always going to take issue with you and say, well, I have a better word.
I think personal injury is better than negligence.
Negligence is better than tort--
Unidentified Justice: Well, then, if that happened presumably on review of the case, most courts would give us some information about why that wasn't a better word.
Your court apparently didn't want to do that.
Mr. Inglish: --No, it did not.
Unidentified Justice: Why do you suppose that was the case?
Why wouldn't it help us with this problem, with the view of the Missouri bar and what thinking went into this rule?
Mr. Inglish: I am sorry.
I can't answer that question.
Unidentified Justice: You are stuck with that opinion, I guess.
Mr. Inglish: Yes, sir.
I can't answer the question.
Unidentified Justice: Mr. Inglish, do you want us to set down these rules?
Mr. Inglish: No, Your Honor.
Unidentified Justice: I hope not, because you would be the first one to come up here and say we are trying to run the country.
Mr. Inglish: --No, Your Honor.
As a matter of fact--
Unidentified Justice: What do you want us to do?
Mr. Inglish: --Well, what I would like for you to do is to affirm the decision of the lower court, and say that the states--
Unidentified Justice: Affirm it that the word "tort" is the only word he can use?
You want us to affirm that?
Mr. Inglish: --Yes, Your Honor.
Unidentified Justice: How?
Mr. Inglish: Well, I say... here is why.
Unidentified Justice: How?
Mr. Inglish: Well, on the basis that the state should have the right to do the regulation within their own bodies, and within their own territory.
Unidentified Justice: Well, then, you don't need this Court.
Mr. Inglish: Well, only... I think the states should be given considerable leeway.
Sure, I think if this Court finds that that is an undue infringement upon his right of free speech, that it does in fact--
Unidentified Justice: How many people in your town know what "tort" means?
Mr. Inglish: --Well, let's see, there are... how many lawyers are there?
Unidentified Justice: How many lawyers do you have?
How many lawyers do you have?
Mr. Inglish: About five of us, I think, Your Honor.
Unidentified Justice: That is about all.
That is all that know about "tort".
Mr. Inglish: Yes, that may well be.
Unidentified Justice: Plus people who do crossword puzzles.
Mr. Inglish: That is true.
But the point being that either this Court is going to lay down some rules, or you are going to let the states do it, and if you don't let the states do it, there are going to be a lot of people coming back up here and saying... or, I don't know what the states will do.
Unidentified Justice: Mr. Inglish, let me... we are going to adjourn for lunch pretty quick, but I wanted to ask you this question, in response to your colloquy with Justice Brennan.
Suppose a state bar accuses someone, a lawyer, of doing A and B, and whoever is the adjudicator finds that he does both A and B, and they suspend him for doing A and B.
It happens that they may not constitutionally prevent him from doing A, but they can prevent him from doing B. Well, he has done both of them.
Now, did you agree with Mr. Justice Brennan or Justice Brennan that the Stromburg rule would apply in that situation, that the suspension must be lifted--
Mr. Inglish: If this Court--
Unidentified Justice: --if one of the grounds is invalid?
Mr. Inglish: --No, I agree with that.
Yes, I agree with that.
Unidentified Justice: What do you agree with?
Mr. Inglish: The fact that... well, if the suspension would be lifted... well, you are saying--
Unidentified Justice: But does the suspension have to be lifted?
Mr. Inglish: --Well, was your question, if one of them is valid, in other words, they properly reprimanded him on one--
Unidentified Justice: Right.
Mr. Inglish: --Yes, then I think he is properly reprimanded, even though he would--
Unidentified Justice: But that wasn't what you and I were talking about, I think.
Mr. Inglish: --I don't think so.
Unidentified Justice: I thought what we were talking about is, they don't tell you on what ground they--
Mr. Inglish: That's correct.
Chief Justice Burger: We will pick that up at 1:00 o'clock, counsel.
Mr. Inglish, you may continue.
ORAL ARGUMENT OF JOHN W. INGLISH, ESQ., ON BEHALF OF THE APPELLEE -- CONTINUED
Mr. Inglish: Mr. Chief Justice, and may it please the Court, to summarize in response to some of the questions that have been asked here today, with regard to using the term "tort law", I would not certainly want to be in the position of trying to defend that as a better term than some other term.
I don't think it is.
I don't think it is well understood, but I don't really think that is dispositive of the issue before the Court.
A great many states, following Plan A of the American bar, now permit listing of areas of practice, and some of them say you may use three or five or all, whatever it is, and those... the nomenclature differs.
Now, are we to say, or is this Court going to take them one by one and say, well, we don't think that that is a proper term to use, there is a better one?
There is no question but that the Appellant's right to speak freely has been infringed upon, but this is not a right that is absolute.
This is commercial speech, and I think the state has a right reasonably to infringe upon his right to speak freely as long as it does not do it unreasonably, and as long as it is in the furtherance of the state interest, which concededly exists, and in the language of Central Hudson does not go any farther than it needs to go.
I think what the Court needs to do is look at the Missouri rule and apply the Central Hudson test, which is now the rule, and say, does it go beyond what is necessary in order to protect the public's interest in not being misled or deceived by legal advertising.
With regard to the other questions concerning if a lawyer has violated... is accused of violating two or more rules, and then this Court finds that he is guilty of violating one but not the other, then, of course, it would still require affirmance.
I would hope that the Court would, in applying the Central Hudson test, find that Missouri rules do not go beyond that which is necessary to protect the state's interest and affirm the decision of the Missouri court.
Unidentified Justice: Mr. Inglish, do you think we should read the Missouri court's opinion as applying the Central Hudson test?
Mr. Inglish: It does not, Your Honor.
It does not.
It is of very little help to this Court.
It is of very little help to me.
But that is the decision of the Missouri Supreme Court, and the one with which this Court is faced.
If there are no further questions, that concludes my argument.
Chief Justice Burger: Thank you.
Do you have anything further, Mr. Blackmar?
ORAL ARGUMENT OF CHARLES B. BLACKMAR, ESQ., ON BEHALF OF THE APPELLANT -- REBUTTAL
Mr. Blackmar: Mr. Chief Justice, and may it please the Court, certainly this rule does not comply with the Central Hudson test, because it does prevent the dissemination of valuable information to the public.
Just one example.
The record shows that this lawyer was formerly employed by the Securities and Exchange Commission.
He can't say securities law, according to the Missouri court, because that is not one of the listed fields.
That might be important to the public.
I am thinking of the person who is reading the Wall Street Journal, or his daily paper, and owns a little stock, and finds some kind of add about a class suit, and wants to know whether to opt out of the suit, and that is just one of dozens of examples.
I suggest that you give some attention to the Arnold Phillips amicus brief, in which the lawyer wanted to tell people about Chapter 13 of the Bankruptcy Act, and the advisory committee said you can't do it, simply because it is not one of the things that is listed.
Now, with regard to the considerable discussion of being... stating the fact of admission to the bar of this Court, there is nothing to indicate that the result in the court below would had been any different if that part had not been contained in the ad, because they say you may have absolutely nothing that is not listed.
I submit the rule cannot stand.
No count can stand.
The judgment should be reversed.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.