PEEL v. ATTORNEY REGISTRATION AND DISCIPLINARY COMM'N OF ILLINOIS
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.
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?
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.
Argument of Bruce J. Ennis, Jr.
Chief Justice Rehnquist: We'll hear argument first this morning No. 89-1775, Gary Peel v. the Attorney Registration and Disciplinary Commission of Illinois.
Mr. Ennis: Mr. Chief Justice, and may it please the Court:
Petitioner's letterhead contains the truthful and verifiable statement of fact that he has been certified as a civil trial specialist by the National Board of Trial Advocacy, a highly respected organization of judges and lawyers whose certification program has been endorsed by the--
Unknown Speaker: How do we know that?
That it's highly respected?
Mr. Ennis: --Your Honor, there is no dispute in this record that the National Board of Trial Advocacy is a reputable and nonbogus organization.
It is sponsored by seven national organizations, including the National District Attorneys' Association, the Association of Trial Lawyers of America.
On its governing board sit many judges, including judges in--
Unknown Speaker: And this is all in the record, I take it?
Mr. Ennis: --This is in the record below.
Yes, that's correct, your Honor.
Unknown Speaker: Uh-huh.
Mr. Ennis: There is no dispute about that fact.
Unknown Speaker: Does the state recognize it as a... as an organization that certifies specialists?
Mr. Ennis: The state does not recognize any organizations to certify specialists.
In the hearing below, the state took the position that it was not going to argue one way or another about whether the National Board of Trial Advocacy provided meaningful information or not.
The state was willing to assume that the National Board of Trial Advocacy certification did provide meaningful information to consumers.
Nevertheless, the state thought that in order to prevent bogus organizations from springing up, the state needed to have a complete categorical ban, a prophylactic rule which prohibited all statements of certification.
Unknown Speaker: How much of your case, Mr. Ennis, depends on the stature of this particular organization?
Mr. Ennis: In this particular case, Your Honor, it does not matter at all because this Court's decisions made clear, beginning with R.M. J and followed in Shapero and Zauderer, that the states cannot place an absolute ban on potentially misleading speech.
Unknown Speaker: So if it were the Sangamon County Trial Lawyers' Association with a membership of about six in rotating musical chairs, that would still be true, so long as the statement were not false?
Mr. Ennis: No, Your Honor.
We do not quarrel with the ability of the state to regulate, to make sure that statements by certifying organizations do provide significant and meaningful information to consumers.
The state could adopt a regulatory scheme and could prohibit statements about certification by bogus organizations.
That is not this case.
Illinois has not tried to distinguish between bogus organizations and meaningful organizations.
Illinois has attempted to prohibit--
Unknown Speaker: Well, what if it isn't a bogus organization but some little two-bit club that the lawyer truthfully says he belongs to and they've recognized him and given him some certificate?
That's fine, I take it.
Mr. Ennis: --No, Your Honor.
Unknown Speaker: --And the state has to permit that?
Mr. Ennis: --Your Honor, I think that the same test would apply but in that circumstance application of the test may permit the state to ban statements of certification by that particular organization on the ground--
Unknown Speaker: On what theory?
Mr. Ennis: --on the ground that those statements of certification do not provide significant or meaningful information to consumers and are potentially deceptive and cannot be proved--
Unknown Speaker: Well, how does an average consumer know anything at all about this organization?
They're not even listed in the telephone directory in some cities.
And how is the average person to have any feeling at all about what that organization represents?
Mr. Ennis: --Well, Your Honor, as the FTC will argue as amicus, Petitioner's statement, like statements like physicians that they are board certified, does provide meaningful and relevant information to consumers.
Consumers, if they want, can go to the trouble to find out what being a board certified--
Unknown Speaker: Well, so it really does make a lot of difference, contrary to what you said earlier, what kind of an organization this is.
Mr. Ennis: --Your Honor... Justice White, I think if the state had a regulatory process, it would make a lot of difference whether--
Unknown Speaker: Well, you seem to say it does make a lot of difference.
It has to provide... this statement has to provide meaningful information.
And I take it from what you've said in your answers that whether it provides meaningful information or not depends on what kind of an organization it is.
This two-bit club?
But this group, yes.
Mr. Ennis: --Yes, Your Honor, that is correct.
Our position is, and I think it is the same test, the same rule this Court applied unanimously in R&J and later in Shapero and Zauderer, that the state cannot have a blanket prohibition on potentially misleading speech, as a speech by a bogus organization might be, if there are regulatory mechanisms which could eliminate the deception.
Here there are at least four, and maybe five, simple and reasonable regulatory mechanisms that Illinois could use to eliminate any potential for deception by bogus organizations.
First, Illinois could itself on an ad hoc basis approve certifying organizations as meeting its standards for what provides meaningful information.
Second, Illinois could--
Unknown Speaker: You say that's a simple step, Mr. Ennis.
But actually, that could involve a fairly substantial commitment of resources on the part of the Supreme Court of Illinois, couldn't it?
Mr. Ennis: --Justice Rehnquist, it certainly could provide... require some commitment of resources, but less, I think, than the administrative burden this Court has already upheld in the other attorney advertising cases.
In Zauderer and in Shapero this Court upheld requirements and suggested that in order to regulate potentially misleading speech the state could require filings of all speech with the state and then on a case-by-case basis the state could make a decision about whether that particular speech was or was not misleading.
Unknown Speaker: Well, what if--
Mr. Ennis: That is a greater--
Unknown Speaker: --if this is commercial speech.
Mr. Ennis: --Justice White?
Unknown Speaker: What if this is commercial speech that these... that he's putting out?
Is your rule of applying a narrower... or the requirement that they use a less-restrictive means is that really... will that really get you very far if it's [inaudible].
Mr. Ennis: Your Honor, I hope so because I'm relying principally on your opinion for the Court in Zauderer, which was a commercial speech case, which squarely ruled that states cannot prohibit potentially misleading information if reasonable regulatory measures would suffice to cure the deception.
Unknown Speaker: Is this commercial speech?
Mr. Ennis: --Your Honor, we argue in our briefs that this speech should be categorized as fully protected speech rather than commercial speech.
But because this case can and should be decided on the narrower ground that even if it is commercial speech it cannot be categorically prohibited, I will rely on the arguments in our brief to support the broader ground.
Let me make clear that Illinois has not argued that its prophylactic ban is a reasonable accommodation between First Amendment interests and the state's interests.
Instead, Illinois has argued that no accommodation is necessary because there is no First Amendment interest to be protected.
That argument is based solely on the conclusory assertion, without any support in the record, that all statements of certification or specialization will inevitably and necessarily mislead consumers.
But as the Federal Trade Commission will argue as amicus, Petitioner's statement, like the statements by physicians that they are board certified, provides relevant and meaningful information that will promote informed consumer decisions.
Petitioner's statement, according to the FTC, is not even potentially misleading, and even if it were, there are numerous reasonable regulatory measures that would eliminate any potential for deception.
And Illinois has not even bothered to consider those regulatory measures, much less prove that they would not suffice.
Unknown Speaker: Mr. Ennis, what does the certification here tell the consumer?
Does it tell the consumer that the lawyer has had a good win/loss record in cases in court?
Mr. Ennis: No, Your Honor, not at all.
And that is a quite different situation.
A good win/loss record, a statement about a good win/loss record, might imply success, that the attorney will be able to be successful for the client.
This is not that at all.
A statement of certification--
Unknown Speaker: Well, what do you think the average non-law-trained person would think that it might indicate or might encompass?
Specialized training or--
Mr. Ennis: --I think that the--
Unknown Speaker: --win/loss or lots of experience?
What is it--
Mr. Ennis: --I think--
Unknown Speaker: --we're... we're to think that that means?
Mr. Ennis: --I think, Justice O'Connor, that the average person might reasonably think that certification by the National Board of Trial Advocacy would imply something about experience in civil trials and a knowledge of basic procedures in civil trials, which is exactly what NBTA certification does.
In order to be certified by NBTA, as the Minnesota Supreme Court ruled, NBTA certification is based upon a rigorous and exacting set of requirements which require proof of five years of practice in civil trials, including at least 30 percent concentration in each year in civil trials; lead counsel in 15 completed trials, including five jury trials and at least 45 full trials days; lead counsel in an additional 45 litigated matters; 45 hours of continuing legal education in civil trial practice in the previous three years; confidential peer review by both judges and lawyers of the attorney's trial abilities; a substantial trial brief; and a day-long written examination which tests knowledge of evidence, ethics, substantive and procedural law and trial tactics.
Unknown Speaker: But, as you've said, Mr. Ennis, that's... that's really just incidental.
I mean, the principle you're arguing for is that even if that weren't all true, the state's absolute ban would not be any good.
They... it would be up to the state to show that this was not a reputable organization, isn't that... that's your point.
Mr. Ennis: That's right, Justice Scalia.
Unknown Speaker: What would you... what would you do if... if Mr. Peel put on his letterhead... instead of certified by this organization it just says on the letterhead
"The best in legal representation; new improved lawyering? "
Mr. Ennis: The same test would apply.
Unknown Speaker: The same test?
Mr. Ennis: The same test.
But under that test, the statement has--
Unknown Speaker: So the Supreme Court of Illinois would have to show case by case that this individual is not the best... isn't providing the best in lawyering?
Mr. Ennis: --That's not exactly my answer, Justice Scalia.
That is a different factual circumstance from this case because it's a statement of opinion.
"I am the best lawyer in the East Coast. "
is a statement of opinion.
It is not verifiable.
A statement by Peel that he has been certified by the National Board of Trial Advocacy is a statement of fact.
Unknown Speaker: He says he's the best lawyer in Sangamon County.
You think that's not verifiable?
Mr. Ennis: No, I think it's certainly not verifiable, Your Honor.
I'm sure that some other lawyers in Sangamon County would disagree with that assessment.
It's a very different circumstance to say a statement of opinion,
"I'm the best lawyer in the universe. "
on the one hand and say,
"As a matter of fact, I have been certified by a highly reputable organization. "
Unknown Speaker: Which says that in their opinion I'm a good lawyer.
Mr. Ennis: Which says that--
Unknown Speaker: So, a second-hand opinion is better than a first-hand opinion.
Mr. Ennis: --It's not just... it's not just their opinion.
It's not an ad hoc basis, Justice Scalia.
NBTA certification is based upon a rigorous set of preexisting standards and qualifications.
Unknown Speaker: Well, that isn't what is... what he... what he says.
He doesn't say anything about the organization.
He just says that I'm certified by so and so and so and so.
And I thought you said a while ago that if he put on his letterhead that I've been certified by this little club that no one ever heard of that, as applied, this blanket ban would be all right.
Mr. Ennis: Your Honor, I believe that--
Unknown Speaker: Well, would it or not?
Mr. Ennis: --I believe that a blanket ban is never acceptable in this circumstance.
Unknown Speaker: So, he could put on... he could... he could put on his letterhead that... that he had been certified by some club that no one had ever heard of and he could use it... and he could say you cannot keep me from doing that--
Mr. Ennis: No.
Unknown Speaker: --because--
Mr. Ennis: No.
Unknown Speaker: --Now, wait a minute.
You cannot get... you cannot make me... you cannot keep me from doing this under this blanket ban.
As applied to me even, this ban is bad.
Mr. Ennis: Well, Your Honor--
Unknown Speaker: Is that right?
Mr. Ennis: --Well, that is not necessarily correct because this Court's opinions made clear that [inaudible].
Unknown Speaker: Well, what... yeah, but what's your view?
What's your view of how he would come out if he put on his letterhead that this little club name that no one ever heard of--
Mr. Ennis: My... my view is that that statement could not be banned if the justification for the ban is a prophylactic ban that all such statements must be banned.
Unknown Speaker: --So, it's just overbroad is it, or what?
Mr. Ennis: No.
It's not just overbroad because it applies to Peel.
He's not arguing--
Unknown Speaker: Yes.
Mr. Ennis: --about the rights of other people and saying that his speech would not be protected but the rights of others would.
He is arguing that his speech itself is constitutionally protected because it provides meaningful information.
Unknown Speaker: Well, yes, but you seem to say that if the... if the state sorted groups out and said here are the groups that we recognize and here are the groups that we don't, that they could... that they could do that.
Mr. Ennis: I'm sorry, but I didn't quite follow that, Your Honor.
Unknown Speaker: Well, why don't you go ahead.
Maybe I can follow you.
Mr. Ennis: Let me... let me point out that the three ways in which Illinois claims that Petitioner's speech could be misleading are not self-evident and they are not based on any empirical evidence, any study, or any expert opinion that that speech would be misleading.
Illinois first suggests that a statement of certification will imply that the state itself has certified or has endorsed the certification.
But as the FTC will argue, it is implausible to believe that consumers will think certification by the National Board of Trial Advocacy is certification by the State of Illinois.
Furthermore, even if there were evidence that Petitioner's statement was potentially misleading in that way, there are many simple regulatory measures to cure that misleading statement.
First is a simple requirement for a disclaimer.
Illinois could require attorneys to say on their letterheads that certification does not mean or imply certification or approval by the state.
Second, there could be ad hoc approval of certifying organizations.
Third, there could be approval of certifying organizations pursuant to preexisting standards and criteria that Illinois would find to be meaningful.
Fourth, there could be case-by-case review of all such statements, as this Court found would be a reasonable regulatory burden in Zauderer and in Shapero.
And finally, the states themselves could engage in certification of attorneys, as 11 states have done.
Under NBTA requirements, if a state provides itself for certification of attorneys, NBTA will not certify an attorney until the attorney has first been certified by that state.
In all these ways the entirely speculative fears of Illinois could be cured through reasonable regulatory measures.
With respect to the burden point that you raised, Justice Rehnquist, let me simply say that in Zauderer the Court said, quote,
"Our recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading and the harmless from the harmful. "
Unknown Speaker: So if... putting aside opinion problems, if there were... if they were on the letterhead, you know, graduated first in his class from the University of Chicago Law School, more hours on his feet in a courtroom than any other lawyer in Sangamon County and a few other things, what would... the state would have to allow that and its only remedy would be to investigate those allegations one by one?
Mr. Ennis: I think, Your Honor, that so long as the state has not bothered to distinguish at all between the harmful and the harmless, the answer would be yes, the state would be relegated to a case-by-case approach.
Unknown Speaker: It's a lot of work.
Mr. Ennis: --But our argument is that the state could adopt reasonable regulatory mechanisms to review that kind of speech as well as this kind of speech, which is a very different kind of speech.
The state in Illinois has not bothered to do that.
And as this Court's decisions made clear, Illinois cannot impose a prophylactic ban on useful speech simply to, quote, "spare itself the trouble" of distinguishing between the harmful and the harmless.
I'd like to reserve my remaining time for rebuttal, if I may.
Unknown Speaker: Very well, Mr. Ennis.
Mr. Marzen, we'll hear now from you.
Argument of Steven J. Marzen
Mr. Marzen: Mr. Chief Justice, and may it please the Court:
On behalf of the Federal Trade Commission I'd like to make two submissions this morning.
First, that Mr. Peel's certification claim, and other claims like it, are valuable commercial speech.
And second, that certification claims cannot be entirely prohibited by the state on the record in this case.
First, information about lawyer certification is valuable commercial speech.
The First Amendment protects commercial speech on the theory that it performs a valuable function in allocating resources in a free-market economy.
Among other things, such information helps consumers pick out desirable goods and services.
The First Amendment theory, as applied to this case, would indicate that information about lawyer certification would help consumers pick out lawyers who are particularly competent to handle their particular problems.
Unknown Speaker: Mr. Marzen, how would this particular certification on Mr. Peel's letterhead help consumers?
Mr. Marzen: Well, if a consumer had a problem that involved litigation, they could look for someone who is certified as a civil trial specialist by the National Board of Trial Advocacy, in comparison to another practitioner who didn't have any certification or also didn't, through looking at Martindale-Hubbell or something else... didn't have any indication that he had courtroom experience for example.
Unknown Speaker: You think that would... that a lay person would understand the significance of that certification?
Mr. Marzen: A lay person certainly isn't going to know that NBTA certification means all the specific things that are required to get the certification.
He's not going to know that it requires 15 trials, five jury trials or a minimum of 45 days trial experience.
At the same time, the vast majority of people in this courtroom probably wouldn't know what tests a product had to go through to get an Underwriter's Laboratory certification.
He or she will know, however, that the certification implies that the attorney has passed some tests, some tests with bite, that are related to the subject area of the certification.
And that's... that's the sort of implied claim that a certification statement makes.
And in that case it's true.
I detected in the questions posed to previous counsel some limits as to what... or some questions as to what is left for the states if you recognize the ability of an attorney to say that I'm a certified civil trial specialist, or any other certification claim.
And in the Federal Trade Commission's view, substantial leeway is left within a wide zone of reasonableness for states to continue regulating.
Within the certification area, for example, if the organization had a musical chairs requirement or just had the requirement that one pay a certain fee, a state could of course prohibit that in their entirety.
The reason... the theory would be that those claims do not... or that the requirements of the certification organization have no relationship at all to the implied claim the consumer would read from the certification.
In addition, depending on what the state reasonably finds the reasonable consumer to understand the claim to be, the state could prohibit claims by certification organizations with insufficient requirements.
For example, in this case if the State of Illinois had found that a reasonable consumer assumes that a civil trial specialist has at least tried one case, they could forbid organizations from... or forbid people from making claims that they are certified as a civil trial specialist by an organization that didn't have those particular requirements.
Unknown Speaker: One case.
Mr. Marzen: Excuse me?
Unknown Speaker: One case.
That's pretty tough.
Mr. Marzen: Well, what one has to realize is that this is sort of a dynamic process.
There were... there was a time in the medical profession and in... in certain products where they were just starting certification.
And in those cases, consumers did not... you know, the certification took more and more meaning over time.
For instance, the Sunkist Grower's Association... you know, who knew... who knew what Sunkist meant when it first started out?
It was a group of people, you know, growing oranges.
Over time, though, it became--
Unknown Speaker: But you're not dealing with light bulbs here.
You're... you're dealing with the process of justice that the Illinois Supreme Court has a special responsibility for.
Mr. Marzen: --That's--
Unknown Speaker: And... and simply because you can allow any organization to certify something... Good Housekeeping or United Labs, or whatever else for light bulbs... it doesn't mean you have to do it for the process of justice, for which counselor are... are members of the bar of the court.
Mr. Marzen: --Absolutely true and the legal services--
Unknown Speaker: And all... all you tell me the state can look to is whether you have one trial.
Mr. Marzen: --No.
It depends on what the assumption of reasonable consumers are.
For example, if one... over time there may be more and more state certification and certification by more and more private entities.
Just as in the medical profession, you may evolve towards higher and higher standards.
Unless you allow the process to get started, however, you're never going to reach that higher goal.
There's no question but that you're correct that legal services are far more complex, and claims that you wouldn't allow in the areas of products, for example, would not be allowed in terms of legal services.
Unknown Speaker: It isn't just a matter of complexity, it's a matter of it being part of the process of justice that the Illinois Supreme Court and other courts are charged with meting out.
Mr. Marzen: I understand that it's part of the process of justice, but in fact allowing people to... to announce and to disseminate information about certification is in the very highest traditions of the standards of the bar in maintaining and improving the quality of advocacy and all other forms of service.
As the study cited on page 2 of our brief in this case indicate, more than 90 percent of the people who suffered serious property damage, employment discrimination or had problems with their landlords, don't go see a lawyer.
Those exact same studies reveal that the principal barrier is because people don't know that there is a particular... can't find a particular lawyer who they feel is competent to deal with the problem.
That same... another study cited in that... our... our same FTC submission indicates that in certain copy tests with 276 individuals, that when you give them information about professional qualifications they... the intentions to go out and obtain legal services increases.
Justice is a very, very important goal.
But the information that is... that would be disseminated as a result of this case is in... would actually help promote justice.
It would help people who have serious legal problems vindicate public and private rights.
And that is a significant interest weighing in the balance on the other side.
The state, of course, has substantial leeway to prohibit false or misleading claims but it's not necessary to reach... to have a prophylactic ban to do so.
In fact, in this particular case the State of Illinois had already means to achieve all of its goals with... with far less intrusion on First Amendment costs.
Specifically, the claims of the State of Illinois are that someone reading Gary Peel's certification statement and any other certification statement would think that there was an implied claim of either state sponsorship or an implied claim that Gary Peel is a superior trial lawyer.
If those claims are accurate, which we disagree for the reasons in our brief and I can elaborate on, the State of Illinois could have had a prophylactic disclaimer saying that certification is not by the state and infers no claim of expertise.
That would have cured any potential confusion or deception, and it would have not trenched nearly on the First Amendment interests that--
Unknown Speaker: But it would have pretty well killed the usefulness of the... of the letterhead, too, wouldn't it?
Perhaps you say that Illinois should be pleased with that result.
If you... I mean, are you really winning much for Mr. Peel if you say he can put this on but after it the state can require him to put it, this is not a certification by the state and it does not import any claim of expertise?
Mr. Marzen: --Not as much as I'd like, Justice Rehnquist.
It's better than a flat ban on any certification statements and it would probably require the attorney to make the certification information useful to specify more about what the standards of the certifying organization were.
Unknown Speaker: But that's not true, is it?
It... it does imply a claim of expertise.
I mean, that... now we're... now we're just saying that the state can impose something that isn't true.
Mr. Marzen: That's... we... okay.
The two points I would make is that it's less intrusive.
We would... I entirely agree with your point, though, that on the facts of this case the state should not be allowed to require a disclaimer.
Disclaimers are extremely valuable when there is some potential--
Unknown Speaker: So... so you say the state should not be allowed to require a disclaimer as to this ad?
Mr. Marzen: --Yes.
Unknown Speaker: You're saying it's a... it's a lie, but at least it's constitutional?
Is that your position?
Mr. Marzen: No.
Not at all.
It's not a lie at all.
The express statement in this case is: I have been certified as a civil trial specialist by the NBTA.
That is absolutely true.
There are implied claims, however, which may or may not be intentionally made that could be confusing or deceptive.
When one is dealing with such implied claims, the experience of the Federal Trade Commission is that you can address an implied claim by an express statement that is... an express statement that that is not what I meant.
Unknown Speaker: So... so where do we come out here?
That the State of Illinois in your view could not constitutionally require a disclaimer in this case?
Mr. Marzen: I would not think that a disclaimer would be appropriate.
Unknown Speaker: No, I... I--
--I thought you said it would be.
Mr. Marzen: Okay.
Unknown Speaker: It's not a question as to whether it's appropriate.
It's whether or not it's permitted.
Mr. Marzen: We... the... on behalf of the Federal Trade Commission, a disclaimer would not be permitted by the Constitution in this case.
My... my initial claim was directed to the fact that the state had lesser intrusive measures that it... that it could have considered--
Unknown Speaker: Well, I thought you said--
Mr. Marzen: --that would have entirely remedied what it had--
Unknown Speaker: --I thought you said a moment ago that the state could require not only the disclaimer but that this does not imply any claim of expertise.
What's your answer to that?
Mr. Marzen: --My answer is no.
Unknown Speaker: No, that you didn't say it or no that you wish you hadn't said it?
Mr. Marzen: --The latter, Justice Rehnquist.
Unknown Speaker: Mr. Moran.
Argument of William F. Moran, III
Mr. Moran: Mr. Chief Justice, and may it please the Court:
The Illinois Code of Professional Responsibility prohibits attorneys from holding themselves out as being either certified or a specialist.
The policy supporting this prohibition is that Illinois does not recognize or sanction any certification or specialization process.
Unknown Speaker: Do you... Mr. Moran, do... do... does Illinois do it on the medical side?
Mr. Moran: --The state does not do it, Your Honor.
Doctors... the medical profession... are allowed to hold themselves out as being specialists or board certified.
Unknown Speaker: And the state doesn't object to that?
Mr. Moran: They do not regulate it, though it is our argument that if the state chose to regulate those board certifications, it would be with... it would be within their authority to do so.
Unknown Speaker: May I ask one... one?
Does the state permit a member of the bar to list on his letterhead that he's a member of the United States Supreme Court Bar?
Mr. Moran: Yes.
Like in R.M. J, an attorney can list the court where he is admitted to practice.
Unknown Speaker: Don't you think that's perhaps more misleading than this... this... particular--
Mr. Moran: Well, Your Honor, because this Court sets the qualifications--
Unknown Speaker: Doesn't that imply that they've been here a lot and argued a lot of cases and we know them very well?
Mr. Moran: --Well, they would be allowed to say that they were admitted in the Court--
Unknown Speaker: Yeah.
Mr. Moran: --to practice and... and--
Unknown Speaker: But do you think that's more or less misleading than this particular letterhead?
Mr. Moran: --I obviously think that it's less misleading than this particular letterhead.
Unknown Speaker: Well, what's misleading about this letterhead?
Mr. Moran: There's three reasons why Petitioner's letterhead is misleading.
The first and most obvious reason it's misleading is that to the reader Petitioner's statement implies that his certification is sanctioned by the state or a governmental authority when there is no question on the record that it is not.
Unknown Speaker: Of course that could, as your opponent just suggested, easily be corrected by saying not a government organization or something like that.
Mr. Moran: Your Honor, we... we believe there's three reasons why it's misleading.
The first, that it implies sanction.
The second, that it impinges upon the inherent authority of the Supreme Court of Illinois to set qualifications for the practice of law in Illinois.
Unknown Speaker: Yes, but they can't set unconstitutional qualifications, can they?
Mr. Moran: That's correct, Your Honor.
And the third reason is that on this record Petitioner's claim is an unverifiable claim as to the quality of services he provides.
Petitioner in his reply brief even admits or argues that a disclaimer in this case would be highly burdensome, and it is our argument that a disclaimer that would have to be created to vitiate the three components of why Petitioner's statement is misleading would have to be so long, so detailed as to be even--
Unknown Speaker: On the unverifiable point--
Mr. Moran: --more confusing to the public.
Unknown Speaker: --is there any distinction between this and the... and the board certification in the medical fields that Justice Blackmun asked about?
Mr. Moran: Well, the unverifiable claim on this record, Your Honor, is that before the Illinois court the various amicus who filed briefs on behalf of Petitioner and Petitioner all stated that there were different qualifications.
Each one had a different set of--
Unknown Speaker: Well, I suppose they've changed over the time.
But there isn't really any doubt about the fact that this is a pretty reputable organization, is there?
Mr. Moran: --We believe that it's irrelevant one way or another whether it's a reputable organization.
We believe the important focus is on the terms themselves: certified and specialist.
Unknown Speaker: But, again, going back to the medical because... do you think that this is less verifiable than the number of examinations a particular specialist in some medical field might have had?
Mr. Moran: I don't know if it would be more or less but in the case of the medical profession research shows that the medical profession has been certifying specialists, board certifying physicians, for 40 to 50 years.
Unknown Speaker: Yeah, but how... but how can these people ever get started?
That's... that's one of the arguments your opponents made.
Mr. Moran: Well, in... in the comments to our rule, the legislative history, our court sets forth that some day the court may see fit to implement a certification or specialization program in Illinois.
Obviously, the opinion in this case is indicative of the fact that the court does not feel that now is the time to implement a certification process.
We argue that it's within the inherent authority of the Supreme Court of Illinois to decide when it is appropriate to join the 11 other states who have their own certification processes.
Unknown Speaker: Well, now, Illinois does, however, permit lawyers to disclose their specialization in some areas... patent, admiralty and what's the other?
Mr. Moran: And trademark.
Unknown Speaker: Trademark.
Mr. Moran: In those cases, Your Honor, the attorneys who practice in those areas are now allowed to use the inherently misleading terms "certified" and "specialist".
Unknown Speaker: What are they allowed to do in those areas?
Mr. Moran: I'll go directly to the rule.
And a lawyer admitted to practice before the United States Patent and Trademark Office may use a designation patents, patent attorney, patent lawyer or registered patent attorney, or any combination of those terms on his letterhead.
A lawyer engaged in the trademark practice may use the designation trademarks, trademark attorney or trademark lawyer or a combination of those terms.
And a lawyer engaged in the admiralty practice may use the designation admiralty, proctor in admiralty or admiralty lawyer or a combination of those terms.
Unknown Speaker: But a lawyer who is engaged primarily in civil litigation practice cannot so indicate?
Mr. Moran: We believe that an attorney could indicate that he was a civil trial advocate or a civil trial attorney, because that statement would not be misleading for the three reasons that we've set out.
That does not imply state sanction, that doesn't set a qualification for the practice of law.
In other words, a reader could not look at that statement and think, but for that certification the attorney could not practice in that area of the law.
Unknown Speaker: And Illinois would permit that, although it isn't expressly allowed?
Mr. Moran: That's correct.
And also because though a reader might infer a term of quality or a certain quality because of that statement that would be readily verifiable.
All attorneys in Illinois--
Unknown Speaker: How would it be readily verifiable?
Mr. Moran: --All attorneys in Illinois are presumed to be competent to handle matters in which they are retained to represent a client.
Factually, if an attorney... and we cited in our brief the case of Zimmerman from New York where they determined the... the New York court determined that an attorney who held himself out as available to practice and was experienced in 25 areas of law was--
Unknown Speaker: Well, if... if the lawyer chose to engage in a civil litigation practice and so indicated on the letterhead, and the lawyer in fact was newly admitted to practice and had had only a trial or two before doing this, Illinois would nonetheless permit that chosen designation on the letterhead?
Mr. Moran: --It would truly be a question of fact, though, Your Honor, whether or not he was a civil trial advocate.
I believe that would be something that a hearing board in a preliminary disciplinary matter could determine factually whether or not--
Unknown Speaker: Well, is that what Illinois does?
Is it... is it set up to examine those claims individually and determine the extent to which the attorney has in fact had--
Mr. Moran: --If--
Unknown Speaker: --trial experience?
Mr. Moran: --If a problem arose and it came to the attention of the administrator of the Commission and a disciplinary investigation was instituted against the attorney, yes, we would determine on a case-by-case basis whether or not that attorney was qualified as a civil trial advocate and whether his statement was--
Unknown Speaker: But you say it is too burdensome to do that with regard to this organization's certification even though you're perfectly willing to do it in the other instance?
Mr. Moran: --That's correct, Your Honor, because for, again, the inherently misleading nature of any certification or specialization term.
Unknown Speaker: Excuse me.
Does Illinois allow you to say practice limited to civil litigation?
Mr. Moran: --That's correct.
Unknown Speaker: It does allow that?
Mr. Moran: That's correct, Your Honor.
Unknown Speaker: Even if you... even if you've just been admitted for a day and have never been in court?
Mr. Moran: Again, that would be a factual determination.
And just as an example, I would again point to the Zimmerman case, where--
Unknown Speaker: Well, facts for determination... I mean, it's true, he won't do anything but civil litigation.
That's his intention, and it's hard to disprove that, isn't it?
Mr. Moran: --But if that was misleading to the public, which is based on the facts of the situation, that an attorney... an attorney who was just admitted to the practice of the bar very well may be competent to be a civil trial advocate in some situations.
But in order to take a case, in order to represent a client, the Code... our Code... requires that the attorney be competent to handle that matter.
And if he's--
Unknown Speaker: I thought you presumed that.
Mr. Moran: --Well, it requires but it... all attorneys who are presumed to act ethically at al times are presumed to be competent to handle the matters where they are retained.
Unknown Speaker: Well, why doesn't that presumption cover this lawyer insofar as he represents he's a competent lawyer able to try civil cases?
Mr. Moran: Again, because of the inherently misleading nature of his statement for the reasons that we set forth.
And especially on the--
Unknown Speaker: Because he thinks the average reader will think that he's specially certified by Illinois even though it doesn't say that?
Mr. Moran: --That's correct.
The reader... and this is not just... this was a finding of the Supreme Court of Illinois but it was supported by an ABA study that found that the terms "certified" and "specialist" themselves have acquired a secondary meaning to the public.
The public cannot differentiate between terms "certified" and "specialist" and the term "licensed", the term "licensed", which means sanctioned by an official entity.
"Certified" and "specialist", especially on this record--
Unknown Speaker: The public in Illinois can't make that distinction is what you're saying.
Mr. Moran: --That's correct.
And that was the finding of both the Illinois court and the ABA in their report.
Unknown Speaker: And I think that's very true when you said certified... certified trial specialist.
Yes, I think the public would think that means certified by the state.
But when you say, you know, certified by Milton Berle or certified by somebody in particular, why does that necessarily indicate the state?
I mean, that's just not plausible.
It's just not plausible.
You... you're not arguing, are you... it might be a plausible argument to say that the public might believe that any organization mentioned as being the certifier has been reviewed by the State of Illinois.
Maybe that's plausible.
But that isn't... that isn't your argument, is it?
And that isn't what the Supreme Court of Illinois relied on.
They didn't rely on the fact that the public would think that Illinois, like a lot of other states, or 11 other states, has actually examined this... this association to see whether they're worthy of certifying.
That... but that isn't your point, is it?
Mr. Moran: In fact, though, in this case we have argued that one of the things that a reader might imply from Petitioner's statement is that the National Board was recognized by the state.
Also, especially when you look at this record, you have to look at the facts.
You have to look at Petitioner's letterhead.
Specifically, on his letterhead he has the name of his law office, his address, his phone number, and to the left in the same size print he lists his name, then he lists his certification claim.
And then, without any spacing, he places the words "licensed" and he places the three states--
Unknown Speaker: No, but you omitted the words by the... certified trial specialist by the National Board of Trial Advocacy.
And after that, the licensed by the three states.
Mr. Moran: --And in this case he is--
Unknown Speaker: And you think that when he says civil trial specialist... I mean, certified by the National Board of Trial Advocacy, the reader will think he was certified by some Illinois organization?
Mr. Moran: --But I don't believe--
Unknown Speaker: I don't understand that.
Mr. Moran: --Your Honor, that the public would be sophisticated enough to determine the true meaning.
Now, we as lawyers, we know that Illinois does not recognize his certification or specialization process.
But the reader to the public... or, the reader in the public, would not realize that that claim is not--
Unknown Speaker: And what great harm would come if the... if the uninformed reader thought the organization had been certified by the Illinois Supreme Court when it hadn't.
It had been certified by somebody and perhaps looked at a lot more closely than the Illinois Supreme Court looks at all these lawyers who get this presumption?
Mr. Moran: --I don't really understand your question, Your Honor.
Unknown Speaker: I'm just... what is the... supposing a... a substantial number of readers mistakenly think there was some kind of an Illinois approval of the organization when there wasn't?
Mr. Moran: Well, they would be misled to believe that the state has certified this attorney to be better qualified.
He has attained a special qualification in order to practice in the area of civil advocacy.
They would be led to believe in an unrealistic--
Unknown Speaker: Which is exactly what he has.
Mr. Moran: --an unrealistic expectation would be raised in the reader that this attorney, because of his special qualifications, will do better for my case regardless of what the outcome--
Unknown Speaker: Well, not the better for my case.
He does in fact have all these extra qualifications, though.
He's had a lot of trials, he's passed a lot of exams, and this is an organization which encourages people to take this training so they can make a truthful representation that they have extra training.
Mr. Moran: --The state--
Unknown Speaker: And if the... if the reader thinks, well, perhaps Illinois sponsored it, and that's wrong, the essential message is still absolutely correct.
Mr. Moran: --We would still argue, though, that the terms are just inherently misleading to the reader regardless of how there would be any disclaimer to them.
And any disclaimer that would be created would be so burdensome and confusing as to even confuse the public even more than Petitioner's statement on its face.
Unknown Speaker: How many claimants do you think understand what the word advocacy means?
Mr. Moran: Could I explain what the term advocacy means?
Just simply that--
Unknown Speaker: Would it be over five?
Would it be over 5 percent of the--
Mr. Moran: --Of the population that would understand?
Unknown Speaker: --Who understand what the word advocacy means?
Mr. Moran: I wouldn't want to hazard a guess, Your Honor, but I think if you use a normal standard of a person who has, let's say, the median intelligence, they very well may have some idea.
But I would say that a large segment of the... of the population would not even know what the term advocacy meant.
Unknown Speaker: Well, what's the damage in that?
Mr. Moran: Because he's holding himself out as civil trial.
I believe that people would understand that he was a trial attorney.
I think most people, the majority of people would understand the word trial.
Unknown Speaker: Well, if he said trial specialist, they'd understand, wouldn't they?
Mr. Moran: But again, you would still have the inherently misleading component of his statement in that the public would be led to believe that the state sanctioned his claim.
The public would be led to believe--
Unknown Speaker: I think that it gives the person as some sort of an expert over and above the other lawyers.
Mr. Moran: --And that the state has sanctioned his claim of being an expert--
Unknown Speaker: No, no, no.
Not that the state has sanctioned it.
But he just actually is.
Mr. Moran: --Well, Your Honor, obviously we would disagree with that.
In this case we believe, for the reasons that we set forth, the fact that it implies state sanction.
Again, state or governmental sanction.
Secondly, that it sets a qualification.
And I really haven't explained the setting the qualification.
Unknown Speaker: Well, how... how much... is there any examination given to these advocates?
Mr. Moran: As a matter of fact, Your Honor, that came up when we argued the matter before the Supreme Court of Illinois.
And there is a written examination that is given in relation to this test.
One of the justices, though, on the court asked counsel for Petitioner the question,
"How do we know that the janitor doesn't come in during the middle of the test and give all the applicants the answers to the test? "
The attorney responded,
"Well, Your Honor, I guess you wouldn't know that because the test is given in Massachusetts and in other areas. "
And Justice Stamos said,
"That's exactly my point, Counsel, that when we give the Illinois bar examination which sets the qualification for the practice of law in Illinois, we know that the janitor doesn't come in and give the answers because the test is given under our authority, by our agents, and we control the entire process. "
In this case, with private bar group associations... and especially on this record... how is the Illinois court ever to determine what the real qualifications are to receive this certification and especially--
Unknown Speaker: Well, what about... it seems to me that when you say "ever" what's wrong with... what's wrong with doing what you say the bar does often?
That you go on a case-by-case basis, and you say, well, this is misleading.
Well, how do you know it's misleading?
Why shouldn't you have a hearing and say, well, is this... is this claim of some kind of a specialty or expertise misleading and why couldn't you determine that this organization is really a pretty high-class organization that actually tests people's qualifications before they certify them?
Mr. Moran: --First of all, in response to your question--
Unknown Speaker: In a hearing.
In a hearing.
Mr. Moran: --Your Honor, we believe that it's... this Court has held in the Goldfarb decision that the states have a compelling interest in regulating the profession of law within their boundaries.
This is especially true because attorneys--
Unknown Speaker: Well, what's... what's wrong with the suggestion that you could really tell what kind of an organization this is that did the certifying in a hearing?
Mr. Moran: --Well, Your Honor, it would... first of all, the hearing would have to be... in this case, let's take, for example, the National Board is located in residence... whatever that means... in Boston, Massachusetts.
Unknown Speaker: Well, it might be hard but I... just on the merits of the hearing do you think you could conclude that this organization is a perfectly legitimate high-class organization that really has high standards for admission?
Mr. Moran: It very well may be possible that you could do that.
Unknown Speaker: Let's assume you had the hearing and you said, you cannot be certified by this organization unless you've had lots of experience and you're highly qualified?
What if you made that... had that conclusion after a hearing?
Mr. Moran: Your Honor, it would--
Unknown Speaker: Do you think that this man could still be prevented from putting it on his letterhead?
Mr. Moran: --That's correct because we believe until the state recognizes, sanction... sanctions, a certification process or a specialization process which we believe is the--
Unknown Speaker: Well, the state isn't about to do that, is it?
Mr. Moran: --Well, in the comments to the rules the state does say that in the future we very well may find that it is appropriate to have a certification--
Unknown Speaker: Even though--
Mr. Moran: --or specialization process.
Unknown Speaker: --Even though indicating that some special expertise might be inherently misleading?
Mr. Moran: Depending on what the... no, because when the state sanctioned a claim of certification or specialization, that would vitiate the misleading nature of the statement.
Unknown Speaker: Just like a hearing that showed this organization really was... really had high standards might do the same?
Mr. Moran: An example, Your Honor, is the two supreme courts, Minnesota and Alabama, who, through contested proceedings, have allowed attorneys to hold themselves out as being certified by the National Board found they struck down essentially the same rule that we have here.
In both those cases, the courts did not automatically say that attorneys from this day forward can hold themselves out as being certified by the National Board.
The court said that we direct that the buyer in those states create a process for recognizing these certifications, and, in fact, I assume have hearings to determine whether or not these... these boards are--
Unknown Speaker: Well, what's wrong with that... what's wrong with that result here?
Mr. Moran: --Well, that shows, though, that this certification... this board certification here was still inherently misleading until the court set in motion a sanctioning process for those certifications or for those boards to obtain.
We, in this case, again fall back to our three arguments why we believe that it's misleading.
One, it sets state sanction; secondly, it implies--
Unknown Speaker: Your second one is that it impinges on the authority of the court.
Mr. Moran: --the authority of the court.
I was looking at the third trying to say the second.
And, finally, that it is an unverifiable claim of quality, especially to the general public.
This is not dry cleaning or, as the attorney for the FTC said, oranges.
There is a tremendous difference between oranges and providing legal services.
There's a tremendous difference between providing legal services and the medical profession.
We believe in this situation that these misleading statements can be prohibited for the three reasons that we have stated.
The history of advertising in Illinois shows that the court was highly concerned with the free flow of nonmisleading commercial information to the public.
Also, attorneys were given a wide range of opportunity to advertise.
The rules relating to advertising are set forth in our brief, and they show that the Illinois court has given attorneys in Illinois every opportunity to advertise in every medium.
The only real restriction is that their advertising not be misleading.
In this case we ask that this Court affirm the well-reasoned, thoughtful and well-analyzed decision of the Illinois court that Petitioner's letterhead, the statement on his letterhead, is misleading.
In this case, Your Honor, Petitioner's... and I feel that I must mention these... has also raised two other issues.
The first being that Petitioner's statement is not commercial speech.
We have two short arguments on this point.
The first argument is that Petitioner has waived this argument.
Petitioner did not raise this issue at any time below.
During five levels of review Petitioner never mentioned that his speech was not commercial speech.
Unknown Speaker: Did anybody say it was?
Mr. Moran: Well, in fact, Petitioner urged the lower levels to consider his speech as being commercial in nature by defending his statement by using precedents developed by this Court in commercial speech cases.
Unknown Speaker: But did the state ever argue that the standards governing commercial speech be applied in this case?
Mr. Moran: In response to his arguments in response to his defense that his statements under the attorney advertising decisions of this Court were proper we did, yes, retort that these decisions do apply in this... in this situation because we believe that it's obvious that even if this Court finds that Petitioner hasn't waived this argument, there is no question that Petitioner's statement is commercial speech.
Petitioner's definition that statements which explicitly propose a commercial transaction are commercial speech is meritless.
This Court's decisions hold that statements which explicitly and implicitly propose a commercial transaction constitute commercial speech.
Unknown Speaker: Well, but this letter was written to your organization, wasn't it?
Mr. Moran: Well, the record shows--
Unknown Speaker: It didn't promote... isn't that what the... the only thing in the record is he wrote to the Disciplinary Commission.
Mr. Moran: --No, Your Honor.
The record shows that Petitioner uses this letterhead during the ordinary course of his practice of law and that he sends his letterhead out to clients, past and present, and other attorneys who he admitted refer a majority of his business to him.
Unknown Speaker: I see.
And so part of the misleading public were other lawyers who were also terribly confused by this.
Mr. Moran: Well, or their clients who the lawyer says: Here's this letterhead; this is the guy I think you should hire.
Finally, Petitioner makes two arguments that the Illinois court's prohibition of his statements violates the Equal Protection Clause.
Again, I will refer the Court to our brief to these arguments.
We feel that there is a rational basis--
Unknown Speaker: Suppose that the only way the state claimed this was misleading was that it implied a... approval by the state that this was... organization was sanctioned by the state or this certification was sanctioned by the state.
And suppose, as I think you probably agree, that that could be negated, that inference by a... something on the letterhead to the contrary.
Would you think the state would be required to use that means to cure the problem rather than this blanket ban?
Mr. Moran: --Following your hypothetical, Your Honor, it may be possible.
Unknown Speaker: Well, it may be possible.
Do you think the state is required to... in this commercial speech area to use that... that less intrusive way of curing the problem?
Mr. Moran: Still, though, what the inherently misleading terms "certified" and "specialist" to the public, and the public's unsophistication concerning delivery--
Unknown Speaker: Well--
Mr. Moran: --of legal services, we believe that it would be almost impossible to create an effective disclaimer in this case.
In summary of our argument, the rules in question clearly advance the state's substantial interest in providing the free flow of commercial information to consumers of legal services.
In reading the rules, the comments to the rules, the legislative history and the opinion, it is clear that the Supreme Court of Illinois takes seriously its responsibility to regulate the practice of law in Illinois and to protect the public from misleading information.
The Illinois court's finding that Petitioner's statement is misleading is supported by thoughtful well-reasoned analysis.
The policy supporting the court's rule is sound.
Petitioner's statement can constitutionally be prohibited.
We request that this Court affirm the lower court's decision.
Unknown Speaker: --Thank you, Mr. Moran.
Mr. Ennis, you have two minutes remaining.
Rebuttal of Bruce J. Ennis, Jr.
Mr. Ennis: In response to questions from Justice O'Connor and Justice White, the state acknowledged that Illinois does not have a blanket rule which prohibits attorneys from saying they concentrate their practice in civil trials, even though there is no objective standard in Illinois for what concentrate means.
Instead, Illinois reviews those claims under a different rule, Rule 2101, which prohibits any misleading claim on a case-by-case basis.
That is exactly the rule we are arguing for here.
There is no more justification for a blanket ban on this statement than there is for a blanket ban on statements that Illinois... in Illinois that attorneys concentrate their practice.
To the contrary.
Concentrate means something.
In NBTA certification it means the attorney has spent at least 30 percent of his time in the previous five years in civil trials.
Justice Kennedy asked a question about--
Unknown Speaker: Mr. Ennis, I've been thinking about your assertion that the source of confusion said to exist by the Illinois Supreme Court is that they think that certified means certified by Illinois.
I don't think that's what the court said.
I think all the court said is when you say certified by the NBTA the average person would think that that is a permission to practice, that the NBTA is somehow an official organization.
The Supreme Court doesn't say that they'll think that constitutes Illinois approval.
But when you say NBTA> ["] and then under that
"licensed by the State of Illinois. "
I think the... the... the unsophisticated person reading that might well think that... that indeed the more important thing is that you're certified by NBTA, which is, for all they know, some official organization.
Why isn't that correct?
Mr. Ennis: --First, Your Honor, that speculation.
There is no evidence in this record that there is that potential for deception.
Even if there were such evidence, that also could be cured by a simple requirement of a disclaimer statement or by the other regulatory measures we have addressed.
So, as in Zauderer, because the potentially misleading statement can be cured through regulation, a prophylactic ban is impermissible.
Justice Kennedy raised a question about expertise.
In Zauderer the Court ruled that states, quote,
"may not prevent an attorney from making accurate statements of fact regarding-- "
Chief Justice Rehnquist: Your time has expired, Mr. Ennis.
The case is submitted.