PEEL v. ATTORNEY REGISTRATION AND DISCIPLINARY COMM'N OF ILLINOIS

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Case Basics
Docket No. 
88-1775
Petitioner 
Gary E. Peel
Respondent 
Attorney Registration and Disciplinary Commission of Illinois
Opinion 
Advocates
(on behalf of the Petitioner)
(on behalf of the Federal Trade Commission, as amicus curiae, supporting the Petitioner)
(on behalf of the Respondent)
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Facts of the Case 

Gary Peel, an attorney licensed to practice in three states, received a “Certificate in Civil Trial Advocacy” from the National Board of Trial Advocacy (NBTA). This certificate is earned by compiling extensive trial experience, completing continuing legal education classes, and passing a day-long examination. In addition to listing the three states in which he was licensed to practice, Peel listed his NBTA certification on his letterhead. The Administrator of the Attorney Registration and Disciplinary Commission of Illinois filed a complaint against Peel and argued that he was publicly presenting himself as a certified legal specialist in violation of the Illinois Code of Professional Responsibility. At Peel’s disciplinary hearing, the Illinois Supreme Court agreed with the Commission and held that Peel’s letterhead was commercial speech that could be governed by the lawyer advertising regulations. The Illinois Supreme Court also held that Peel’s letterhead amounted to an unwarranted claim of superior quality of service because it could lead the public to believe that his authority to practice trial advocacy was derived from his NBTA certification.

Question 

Does listing National Board of Trial Advocacy certifications on an attorney’s letterhead have the potential to mislead the public to an extent that warrants a categorical ban of that type of advertising?

Conclusion 
Decision: 5 votes for Peel, 4 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly

No. Justice John Paul Stevens delivered the opinion for the 5-4 majority. The Court held that the letterhead was neither actually nor inherently misleading because advertising an NBTA certification did not suggest a greater degree of qualification than could be inferred by evaluating the certification’s requirements. Furthermore, the Court held that, whether or not the letterhead was misleading, Illinois’ categorical prohibition on providing this type of information was “broader than reasonably necessary to prevent the perceived evil.” Additionally, the concern about deception was insufficient to outweigh the “constitutional presumption favoring disclosure over concealment.”

Justice Thurgood Marshall wrote an opinion concurring in the judgment in which he argued that, because the letterhead may be deceiving, Illinois could enact regulations short of a complete ban to make sure the public is not misled by similar representations.

In his dissenting opinion, Justice Byron R. White wrote that the letterhead could be potentially misleading and that the state should have the power to prevent these types of advertisements when they are not accompanied by a disclaimer aimed at avoiding the misconception. Justice Sandra Day O’Connor wrote a separate dissenting opinion in which she argued that the Illinois rule barring this type of misleading speech is valid and that the public’s comparative lack of knowledge justifies the state’s interest in controlling this type of speech. Chief Justice William H. Rehnquist and Justice Antonin Scalia joined the dissent.

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PEEL v. ATTORNEY REGISTRATION AND DISCIPLINARY COMM'N OF ILLINOIS. The Oyez Project at IIT Chicago-Kent College of Law. 27 May 2015. <http://www.oyez.org/cases/1980-1989/1989/1989_88_1775>.
PEEL v. ATTORNEY REGISTRATION AND DISCIPLINARY COMM'N OF ILLINOIS, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1980-1989/1989/1989_88_1775 (last visited May 27, 2015).
"PEEL v. ATTORNEY REGISTRATION AND DISCIPLINARY COMM'N OF ILLINOIS," The Oyez Project at IIT Chicago-Kent College of Law, accessed May 27, 2015, http://www.oyez.org/cases/1980-1989/1989/1989_88_1775.