Court Widens Lawyers’ Right to Advertise : Ruling Holds Attorneys May Solicit Suits Against Specific Firms
The Supreme Court Tuesday widened the right of lawyers to advertise, holding that they may publish ads soliciting clients for suits against a specific company--provided the ads contain truthful information and legal advice.
The court’s 5-3 decision is likely to pave the way for more expansive and detailed advertising by the nation’s nearly 700,000 attorneys, particularly in cases accusing manufacturers of liability for faulty products.
The justices ruled in the case of an Ohio lawyer who was disciplined by state authorities for an advertisement offering to represent women allegedly injured by Dalkon Shield intrauterine devices. The ad, the court said, was a form of “commercial free speech” protected by the First Amendment.
Justice Byron R. White, writing for the majority, rejected the argument that restraints on solicitation are permissible as a way of keeping lawyers from “stirring up” litigation.
Lawsuits Not ‘Evil’
“We cannot endorse the proposition that a lawsuit, as such, is an evil,” White said. “ . . . The state is not entitled to interfere with access (to the courts) by denying its citizens accurate information about their legal rights.”
The ruling directly invalidated restrictions in 15 states--not including California--that effectively prevented lawyers from soliciting clients through published advertisements. Also, it cast doubt on how far states may go in restricting broadcast ads and direct-mail solicitations by lawyers.
The justices added other new guidelines to a landmark 1977 decision striking down the legal profession’s long-standing prohibition on all lawyer advertising. The court, by a vote of 8 to 0, said that lawyers are free to use illustrations in their ads. But, in a 6-2 split, they held that attorneys could be disciplined for failing to specify that clients might be required to pay some court costs even when the lawyer had agreed to forgo his own fee if the suit were unsuccessful.
Alan B. Morrison, an attorney for the Public Citizen Litigation Group who represented the lawyer in the case, said that the ruling would enable consumers and other would-be litigants to get more information about possible lawsuits and to benefit from enhanced competition among lawyers.
“Consumers will be in a better position to make their own choices as to whether to call a lawyer or not,” he said.
The case before the court involved several state-mandated restrictions on Ohio attorneys who advertise. Although some states, like California, now permit most truthful, non-deceptive advertising, some others, like Ohio, strictly limit the method and content of lawyers’ ads.
Ads in 36 Papers
In 1982, Columbus attorney Philip Q. Zauderer placed an ad in 36 Ohio newspapers offering to represent women injured by the Dalkon Shield. The ad featured an illustration of the IUD and said, “Do not assume it is too late” to bring suit. In all, 235 persons contacted Zauderer, with 106 later filing suit.
The manufacturer, A. H. Robins, has been the target nationally of nearly 10,000 such actions, which allege that the device--now withdrawn from the market--caused pelvic disease, infertility and spontaneous abortion.
State authorities brought action against Zauderer, charging, among other things, that he violated lawyer disciplinary rules by soliciting clients, using illustrations and failing to adequately specify the potential costs of an unsuccessful suit. Zauderer, in an arrangement common in civil cases, offered to serve on a “contingency fee” basis, taking a share of an award for damages in a successful suit--but waiving his fee if the case were lost. The Ohio Supreme Court issued a reprimand against Zauderer.
In their decision (Zauderer vs. Office of Disciplinary Counsel, 83-2166), the justices said that the attorney could not be disciplined for soliciting clients or using the illustration. A ban on face-to-face solicitations was justified because of the potential for invasion of privacy, undue influence and “outright fraud,” White wrote. But the newspaper ad, he noted, was “entirely accurate” and neither promised success nor implied “special expertise” beyond the fact that the attorney had represented other clients in Dalkon Shield cases.
Justice Sandra Day O’Connor, joined by Chief Justice Warren E. Burger and Justice William H. Rehnquist, dissented. Justice Lewis F. Powell Jr. did not participate in the decision.
Columnists Win in Suit
In another case, the court, over two dissents, let stand a ruling freeing syndicated columnists Rowland Evans and Robert Novak from a $6-million libel suit by a Marxist political science professor who had unsuccessfully sought appointment as head of the government department at the University of Maryland. A federal appeals court said that a 1978 column highly critical of the professor was opinion--not fact--and thus protected by the First Amendment.
Rehnquist, joined by Burger, said that the case (Ollman vs. Evans and Novak, 84-1524) should have been reviewed to see whether the columnists should be required to defend in court their statement that the professor had “no status within the profession, but is a pure and simple activist.”
