Free Speech Is Pivotal Issue : Court to Test State Curbs on Lawyer Ads

In the spring of 1982, newspapers throughout Ohio carried an eyebrow-raising advertisement featuring an illustration of an intrauterine device and the headline, “Did You Use This IUD?”

The ad said that women who had used the allegedly faulty birth control device, the Dalkon Shield, might be able to sue the company that made it--and that the law firm of Philip Q. Zauderer & Associates of Columbus could handle the case for a share of any subsequent award. “Do not assume it is too late to take legal action against the Shield’s manufacturer,” the ad said.

Two years and a welter of legal arguments later, that advertisement has wound up before the U.S. Supreme Court in a test case that could establish far-reaching guidelines for regulating the relatively new and fast-growing phenomenon of advertising among the nation’s nearly 700,000 lawyers.

At issue in the case, to be argued before the justices on Monday, is how far states can go in restricting lawyer advertising without violating the right to commercial free speech.

In times past, self-imposed ethical restrictions effectively barred most advertising not only by lawyers but by physicians, dentists, architects as well as other professionals.

In recent years, such barriers have been slowly disappearing, but in the case of lawyers--a profession governed by a unique combination of professional associations and the courts--many restrictions linger.

One thing that Zauderer’s experience demonstrated was that, when it comes to rustling up clients, it pays to advertise: 235 persons contacted the law firm, and 95 of them subsequently retained Zauderer to file suits, most of them still pending. But for all the ad’s drawing power, it got Zauderer in trouble with Ohio state bar authorities for violating the strictly enforced lawyer advertising regulations set by the state Supreme Court.

Zauderer, a well-established personal injury and product liability lawyer, was accused of improperly soliciting clients to bring suit against the A. H. Robins Co. (The company has been the target of thousands of legal claims alleging injury from its once-popular birth control device, now withdrawn from the market.)

Failed to List Fees

Zauderer was also charged with failing to specify his fee arrangements and with using a drawing of a Dalkon Shield in violation of a rule banning illustrations in lawyers’ ads, except for the scales of justice or pictures of attorneys.

The Ohio Supreme Court subsequently upheld the action against Zauderer and issued a rare public censure of the attorney, brushing aside his contention that the advertisements were protected by the First Amendment.

Now, an appeal by Zauderer has reached the U.S. Supreme Court.

Eight years ago, the high court invalidated the total prohibitions that had long existed against lawyer advertising. But many states still maintain wide-ranging rules restricting the means and manner of such advertising. As a result, legal questions remain over permissible controls beyond those that prohibit outright fraud and deception.

“Many lawyers still think it’s undignified to advertise--something that lawyers should not be doing,” observed Peggy A. Ross, staff counsel to the Commission on Advertising of the American Bar Assn. “This case should definitely resolve the unanswered legal questions. The problem we have now is that there hasn’t been enough guidance from the Supreme Court . . . . We’re hoping this case requires the court to be much more specific about how far states can go.”

In the Zauderer case, Ohio authorities contend that the ad at issue represented an improper form of client solicitation. Strict rules are justified, they say, as a means of protecting the public from confusing and unverifiable claims by lawyers. While lawyers have a right to advertise their general availability, the state says, they have no right to “recommend themselves” or accept employment after rendering unsolicited legal advice.

Nor should attorneys be allowed to use ads to “foment litigation” against particular persons or entities, the Ohio authorities say in briefs to the court. If lawyers are allowed to advertise for clients to sue a big company, the state warns, the same rationale would also permit them to solicit clients to go to court against employers, spouses or even next-door neighbors.

“We’re not saying that all advertising is wrong--it’s a question of degree,” said Angelo J. Gagliardo, disciplinary counsel of the Supreme Court of Ohio. “This kind of advertising is overreaching and amounts to blatant solicitation.”

Zauderer’s attorneys, David K. Frank of Columbus and Alan B. Morrison of Washington, contend that ads like his are a legitimate means of informing the public of its legal rights and the opportunity to obtain qualified counsel. The advertisement, aimed at a general audience of newspaper readers, is far from the kind of personal solicitation--such as seeking out accident victims in hospitals--that the state may legitimately forbid, the lawyers assert.

“The advertisement made help available to people who didn’t know until they saw the ad that there was a relationship between the Dalkon Shield and the problem they had,” said Frank. “Unlike an in-person solicitation, people who see newspaper ads have an opportunity to talk to friends, relatives, or their family doctors and get plenty of information before deciding whether or not to hire a lawyer.”

Zauderer’s lawyers say there is no justification for the state’s requirement that fee arrangements be spelled out in detail in advertising or any legitimate reason to limit illustrations. Frank noted that an early version of the ad, without an illustration, drew little response.

Illustrations have proved useful in other ads, he observed, including those used in advertising run by the Ohio State Bar Assn. urging persons with legal problems to consult lawyers. (One such bar association ad won an award from the Midwest Region of the American Federation of Advertising.)

The Ohio lawyer has also drawn support from the American Civil Liberties Union, which in a “friend of the court” brief urges the justices to throw out rules like Ohio’s and forbid as unconstitutional any restriction on ads that are not false, deceptive or misleading.

For many years, advertising by lawyers had been widely prohibited by the legal profession in the belief that it was unethical and inherently misleading. But, in the 1970s, pressure from legal and consumer groups began to build to permit some forms of truthful, informational advertising. Finally, in 1977, the Supreme Court, citing the public’s right to know what legal services were available, struck down outright prohibitions on lawyer advertising.

In subsequent decisions, the court upheld the right of states to bar in-person solicitation where there was the risk of improper influence but also ruled that while states retained the right to bar misleading advertising, any other inroads on commercial free speech must be “no more extensive than reasonably necessary” to further “substantial” state interests.

In the wake of the court’s rulings, most states are modifying rules governing lawyer advertising--and many attorneys have taken advantage of the change by publishing ads indicating their specialties and inviting consultation.

Airplane Signs Used

Some have gone so far as to hire airplanes to pull signs bearing their names over football stadiums, offer discount coupons for legal consultations and publish “score cards” showing their won-loss record in criminal trials.

A number of large legal clinics, performing high-volume services on ordinary legal matters, have spent up to $2.5 million a year on television advertising alone.

But considerable resistance remains within the profession towards lawyer advertising--particularly in its newer, non-traditional forms.

Chief Justice Warren E. Burger, for example, on several occasions has criticized what he calls “shoddy” and “unprofessional advertising” by lawyers, in which, as he told a meeting of the American Bar Assn. last summer, legal services are touted like “dog food, cosmetics and hair tonic.”

And numerous states, like Ohio, still impose tight controls on the style and content of lawyer advertising that go beyond the standard prohibition against false and misleading ads.

Federal Trade Commission staff members, surveying the remaining barriers to lawyer advertising, found in a study released last month that there were wide variations in such regulations state by state. Twelve states, for example, still prohibit television advertising; 25 require that ads be “dignified” and 37 bar the use of trade names.

Kansas permits ads on radio or television but bars animations, slogans or music from those ads. Mississippi allows ads in newspapers and the Yellow Pages but limits the print size to 12-point type.

The FTC report concluded that in states that allow more lawyer advertising, the legal fees were lower for handling wills, personal bankruptcies, uncontested divorces and other ordinary services.

It urged that states adopt liberal regulations, guarding primarily against false or deceptive advertising, to increase competition among lawyers that would likely lead to lower prices for consumers. California, the study noted, is among the least restrictive states, with few curbs on the method, content and style of lawyer advertising.

The ad that brought trouble for Zauderer in Ohio probably would have had clear sailing in California, where rules do not directly restrict the use of graphics or statements about fees or prohibit reference to a specific defendant in an ad. However, state bar officials caution that this does not mean that lawyers in California may advertise without fear of disciplinary action.

“Lawyer advertising must not be misleading, deceptive or untruthful,” Ellen Dreibelbis, director of the State Bar Office of Professional Standards, said. Dreibelbis points also to state prohibitions against in-person or telephone solicitations by lawyers or their agents, as well as rules against solicitations of particular groups, such as letters addressed to persons named in evictions or other kinds of court actions.

The Zauderer case is expected to be decided by the justices by next summer. Meanwhile, many authorities expect lawyer advertising to become more widespread as large numbers of graduates come out of law schools and attorneys seek ways of distinguishing themselves from their colleagues.

Lori B. Andrews, author of a book on lawyer advertising and now a research attorney for the American Bar Foundation, notes that times have changed markedly since the days when attorneys used to debate whether it was ethical to wear cuff links containing an inscription of legal symbols.

“Things will continue to change dramatically in the next decade,” Andrews predicted. “Nowadays you even see bumper stickers saying, ‘Have you hugged your lawyer today?’ ”