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ZAUDERER v. OFFICE OF DISCIPLINARY COUNSEL
471 U.S. 626 (1985)
ZAUDERER
v.
OFFICE OF DISCIPLINARY COUNSEL OF THE SUPREME COURT OF OHIO
No. 83-2166.
Supreme Court of United States.
Argued January 7, 1985
Decided May 28, 1985
APPEAL FROM THE SUPREME COURT OF OHIO
Alan B. Morrison argued the cause for appellant. With him on the briefs were David C. Vladeck and David K. Frank.
H. Bartow Farr III argued the cause for appellee. On the brief were Angelo J. Gagliardo and Mark H. Aultman.*
JUSTICE WHITE delivered the opinion of the Court. Since the decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc.,425 U.S. 748 (1976), in which the Court held for the first time that the First Amendment precludes certain forms of regulation of purely commercial speech, we have on a number of occasions addressed the constitutionality of restraints on advertising and solicitation by attorneys. See In re R. M. J.,455 U.S. 191 (1982); In re Primus,436 U.S. 412 (1978); Ohralik v. Ohio State Bar Assn.,436 U.S. 447 (1978); Bates v. State Bar of Arizona,433 U.S. 350 (1977). This case presents additional unresolved questions regarding the regulation of commercial speech by attorneys: whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements. IAppellant is an attorney practicing in Columbus, Ohio. Late in 1981, he sought to augment his practice by advertising in local newspapers. His first effort was a modest one: he ran a small advertisement in the Columbus Citizen Journal advising its readers that his law firm would represent defendants in drunken driving cases and that his clients' "[f]ull legal fee [would be] refunded if [they were] convicted
of DRUNK DRIVING."1 The advertisement appeared in the Journal for two days; on the second day, Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio (appellee) telephoned appellant and informed him that the advertisement appeared to be an offer to represent criminal defendants on a contingent-fee basis, a practice prohibited by Disciplinary Rule 2-106(C) of the Ohio Code of Professional Responsibility. Appellant immediately withdrew the advertisement and in a letter to Kettlewell apologized for running it, also stating in the letter that he would decline to accept employment by persons responding to the ad. Appellant's second effort was more ambitious. In the spring of 1982, appellant placed an advertisement in 36 Ohio newspapers publicizing his willingness to represent women who had suffered injuries resulting from their use of a contraceptive device known as the Dalkon Shield Intrauterine Device.2 The advertisement featured a line drawing of the Dalkon Shield accompanied by the question, "DID YOU USE THIS IUD?" The advertisement then related the following information:
"The Dalkon Shield Interuterine [sic] Device is alleged to have caused serious pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It is also alleged to have caused unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. If you or a friend have had a similar experience do not assume it is too late to take legal action against the Shield's manufacturer. Our law firm is presently representing women on such cases. The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients."The ad concluded with the name of appellant's law firm, its address, and a phone number that the reader might call for "free information."
* Briefs of amici curiae were filed for the American Civil Liberties Union et al. by Bruce Campbell and Charles S. Sims; and for A. H. Robins Co. by E. Barrett Prettyman, Jr. 1. The advertisement notified the potential client that "[e]xpert witness (chemist) fees must be paid." The only other information contained in the advertisement was the name of appellant's firm, its telephone number, and its address. 2. An intrauterine device (or IUD) is "a plastic or metal coil, spiral, or other shape, about 25 mm long, that is inserted into the cavity of the womb to prevent conception. Its exact mode of action is unknown but it is thought to interfere with implantation of the embryo." Urdang Dictionary of Current Medical Terms 220 (1981). The Dalkon Shield is a variety of IUD that was marketed in the early 1970's. Because of evidence that the Shield was associated with a variety of health problems among users, the Shield was withdrawn from the market in 1974. In 1980, the manufacturer advised physicians that they should remove the Shield from any woman still using it, and in 1983, the Food and Drug Administration followed suit. In 1984, the manufacturer instituted a mass-media campaign urging women to have the device removed. See Robins Mounts Drive to Settle Dalkon Suits, National Law Journal, Dec. 24, 1984, p. 1, col. 3. 3. DR 2-101(A) provides that "[a] lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use, or participate in the use of, any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim." 4. Disciplinary Rule 2-101(B), in its entirety, provides:
"In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-103, in print media or over radio or television. Print media includes only regularly published newspapers, magazines and other periodicals, classified telephone directories, city, county and suburban directories, law directories and law lists. The information disclosed by the lawyer in such publication or broadcast shall comply with DR 2-101(A) [see n. 3, supra] and be presented in a dignified manner without the use of drawings, illustrations, animations, portrayals, dramatizations, slogans, music, lyrics or the use of pictures, except for the use of pictures of the advertising lawyer, or the use of a portrayal of the scales of justice. Only the following information may be published or broadcast: "(1) Name, including name of law firm and names of professional associates, addresses and telephone numbers; "(2) One or more fields of law in which the lawyer or law firm is available to practice, but may not include a statement that the practice is limited to or concentrated in one or more fields of law or that the lawyer or law firm specializes in a particular field of law unless authorized under DR 2-105; "(3) Age; "(4) Date of admission to the bar of a state, or federal court or administrative board or agency; "(5) Schools attended, with dates of graduation, degrees and other scholastic distinctions; "(6) Public or quasi-public offices; "(7) Military service; "(8) Published legal authorships; "(9) Holding scientific, technical and professional licenses, and memberships in such associations or societies; "(10) Foreign language ability; "(11) Whether credit cards or other credit arrangements are accepted; "(12) Office and telephone answering service hours; "(13) Fee for an initial consultation; "(14) Availability upon request of a written schedule of fees or an estimate of the fee to be charged for specific services; "(15) Contingent fee rates subject to DR 2-106(C), provided that the statement discloses whether percentages are computed before or after deduction of court costs and expenses; "(16) Hourly rate, provided that the statement discloses that the total fee charged will depend upon the number of hours which must be devoted to the particular matter to be handled for each client and the client is entitled without obligation to an estimate of the fee likely to be charged, in print size at least equivalent to the largest print used in setting forth the fee information; "(17) Fixed fees for specific legal services; "(18) Legal teaching positions, memberships, offices, committee assignments, and section memberships in bar associations; "(19) Memberships and offices in legal fraternities and legal societies; "(20) In law directories and law lists only, names and addresses of references, and, with their written consent, names of clients regularly represented." 5. The panel did not find that the advertisement's alleged lack of "dignity" or its inclusion of information not allowed by DR 2-101(B)(1)-(20) constituted an independent violation. 6. In its brief on the merits, appellee suggests that because appellant received only a public reprimand — the least severe discipline that may be imposed on an attorney who violates one of Ohio's Disciplinary Rules — the judgment below must be affirmed if any one of the findings of a disciplinary violation is sustainable. We disagree. The reprimand imposed on appellant incorporated the opinion of the Supreme Court of Ohio as well as the report of the Board of Bar Commissioners. Thus, the reprimand constituted a public chastisement of appellant for each of the offenses specified. A reprimand that specified fewer infractions would be a different punishment and would be a lesser deterrent to future advertising. 7. Appellant's advertising contains statements regarding the legal rights of persons injured by the Dalkon Shield that, in another context, would be fully protected speech. That this is so does not alter the status of the advertisements as commercial speech:
"We have made clear that advertising which `links a product to a current public debate' is not thereby entitled to the constitutional protection afforded noncommercial speech. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S., at 563, n. 5. A company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions. See ibid." Bolger v. Youngs Drug Products Corp.,463 U.S. 60, 68 (1983) (footnote omitted). In this case, Ohio has placed no general restrictions on appellant's right to publish facts or express opinions regarding Dalkon Shield litigation; Ohio's Disciplinary Rules prevent him only from conveying those facts and opinions in the form of advertisements of his services as an attorney. 8. In its brief on the merits, appellee Office of Disciplinary Counsel advances the surprising contention that the Court ought not permit appellant to raise his constitutional defenses to Ohio's disciplinary proceedings. Appellee's argument apparently is that because appellant could have challenged the constitutionality of the rules in an action for a declaratory judgment in federal court, he was not entitled to violate them and raise their unconstitutionality defensively. This odd argument stands ordinary jurisprudential principles on their heads. We have often emphasized that, in our federal system, it is preferable that constitutional attacks on state statutes be raised defensively in state-court proceedings rather than in proceedings initiated in federal court. See, e. g., Younger v. Harris,401 U.S. 37 (1971). This principle is as applicable to attorney disciplinary proceedings as it is to criminal cases. Middlesex County Ethics Committee v. Garden State Bar Assn.,457 U.S. 423 (1982). Accordingly, it was perfectly appropriate for appellant to refrain from an anticipatory challenge to Ohio's rules and to trust that any proceedings the State might initiate would provide a forum in which he could assert his First Amendment rights. 9. The absence from appellant's advertising of any claims of expertise or promises relating to the quality of appellant's services renders the Ohio Supreme Court's statement that "an allowable restriction for lawyer advertising is that of asserted expertise" beside the point. Appellant stated only that he had represented other women in Dalkon Shield litigation — a statement of fact not in itself inaccurate. Although our decisions have left open the possibility that States may prevent attorneys from making nonverifiable claims regarding the quality of their services, see Bates v. State Bar of Arizona,433 U.S. 350, 366 (1977), they do not permit a State to prevent an attorney from making accurate statements of fact regarding the nature of his practice merely because it is possible that some readers will infer that he has some expertise in those areas. See In re R. M. J.,455 U.S. 191, 203-205 (1982). 10. By 1979, it was "estimated that 2500 claims [had] been made . . . for injuries allegedly caused by [the Dalkon Shield]." Van Dyke, The Dalkon Shield: A "Primer" in IUD Liability, 6 West. St. U. L. Rev. 1, 3, n. 7 (1978). By mid-1980, the number of lawsuits had risen to 4,000. Bamford, Dalkon Shield Starts Losing in Court, 2 American Lawyer 31 (July 1980). By the end of 1984 it was reported that the manufacturer had settled or satisfied judgments in 6,289 cases and that over 3,600 cases were still pending. See Robins Mounts Drive to Settle Dalkon Suits, National Law Journal, Dec. 24, 1984, p. 1, col. 3. Plaintiffs have succeeded in winning favorable settlements and jury verdicts against the Shield's manufacturer. See, e. g., Worsham v. A. H. Robins Co.,734 F.2d 676 (CA11 1984) (affirming jury verdict); Gardiner v. A. H. Robins Co.,747 F.2d 1180 (CA8 1984) (noting settlement of cases). 11. In 1983, the Ohio Supreme Court explicitly adopted the rule that "[w]hen an injury does not manifest itself immediately, the cause of action arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he has been injured, whichever comes first." O'Stricker v. Jim Walter Corp.,4 Ohio St.3d 84, 90, 447 N.E.2d 727, 732. 12. The State's argument may also rest in part on a suggestion that even completely accurate advice regarding the legal rights of the advertiser's audience may lead some members of the audience to initiate meritless litigation against innocent defendants. To the extent that this is the State's contention, it is unavailing. To be sure, some citizens, accurately informed of their legal rights, may file lawsuits that ultimately turn out not to be meritorious. But the State is not entitled to prejudge the merits of its citizens' claims by choking off access to information that may be useful to its citizens in deciding whether to press those claims in court. As we observed in Bates v. State Bar of Arizona, 433 U. S., at 375, n. 31, if the State's concern is with abuse of process, it can best achieve its aim by enforcing sanctions against vexatious litigation. In addition, there would be no impediment to a rule forbidding attorneys to use advertisements soliciting clients for nuisance suits — meritless claims filed solely to harass a defendant or coerce a settlement. Because a client has no legal right to file such a claim knowingly, advertisements designed to stir up such litigation may be forbidden because they propose an "illegal transaction." See Pittsburgh Press Co. v. Human Relations Comm'n,413 U.S. 376 (1973). 13. The American Bar Association evidently shares the view that weeding out false or misleading advertising by attorneys from advertising that is accurate and nonmisleading is neither impractical nor unduly burdensome: the ABA's new Model Rules of Professional Conduct eschew all regulation of the content of advertising that is not "false or misleading." ABA Model Rule of Professional Conduct 7.2 (1983). A recent staff report of the Federal Trade Commission has also concluded that application of a "false or deceptive" standard to attorney advertising would not pose problems distinct from those presented by the regulation of advertising generally. See Federal Trade Commission Staff Report, Improving Consumer Access to Legal Services: The Case for Removing Restrictions on Truthful Advertising 149-155 (1984). 14. We reject appellant's contention that we should subject disclosure requirements to a strict "least restrictive means" analysis under which they must be struck down if there are other means by which the State's purposes may be served. Although we have subjected outright prohibitions on speech to such analysis, all our discussions of restraints on commercial speech have recommended disclosure requirements as one of the acceptable less restrictive alternatives to actual suppression of speech. See, e. g., Central Hudson Gas & Electric, 447 U. S., at 565. Because the First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed, we do not think it appropriate to strike down such requirements merely because other possible means by which the State might achieve its purposes can be hypothesized. Similarly, we are unpersuaded by appellant's argument that a disclosure requirement is subject to attack if it is "under-inclusive" — that is, if it does not get at all facets of the problem it is designed to ameliorate. As a general matter, governments are entitled to attack problems piecemeal, save where their policies implicate rights so fundamental that strict scrutiny must be applied. See, e. g., Zablocki v. Redhail,434 U.S. 374, 390 (1978). The right of a commercial speaker not to divulge accurate information regarding his services is not such a fundamental right. 15. Appellant suggests that the disclosures required by the Ohio Supreme Court would in fact be unduly burdensome and would tend to chill advertising of contingent-fee arrangements. Evaluation of this claim is somewhat difficult in light of the Ohio court's failure to specify precisely what disclosures were required. The gist of the report of the Board of Commissioners on this point, however, was that appellant's advertising was potentially deceptive because it "left standing the impression that if there were no recovery, the client would owe nothing." App. to Juris. Statement 14a. Accordingly, the report at a minimum suggests that an attorney advertising a contingent fee must disclose that a client may be liable for costs even if the lawsuit is unsuccessful. The report and the opinion of the Ohio Supreme Court also suggest that the attorney's contingent-fee rate must be disclosed, see ibid.; 10 Ohio St.3d 44, 48, 461 N.E.2d 883, 886 (1984). Neither requirement seems intrinsically burdensome; and they certainly cannot be said to be unreasonable as applied to appellant, who included in his advertisement no information whatsoever regarding costs and fee rates. This case does not provide any factual basis for finding that Ohio's disclosure requirements are unduly burdensome.
The vagueness of the Ohio Supreme Court's opinion regarding precisely what an attorney must disclose in an advertisement mentioning a contingent fee is, however, unfortunate. It is also worth noting that DR 2-101(B)(15), the only explicit reference in the Ohio rules to a disclosure requirement involving contingent fees, does not on its face require any disclosures except when an advertisement mentions contingent-fee rates — which appellant's advertisement did not do. Because "[a] relevant inquiry in appraising a decision to disbar is whether the attorney stricken from the rolls can be deemed to have been on notice that the courts would condemn the conduct for which he was removed," In re Ruffalo,390 U.S. 544, 554 (1968) (WHITE, J., concurring in result), it may well be that for Ohio actually to disbar an attorney on the basis of its disclosure requirements as they have been worked out to this point would raise significant due process concerns. Given the reasonableness of the decision that appellant's omissions created the potential for deception of the public, however, we see no infirmity in a decision to issue a public reprimand on the basis of those omissions. And, of course, were Ohio to articulate its disclosure rules regarding contingent fees in such a way that they provided a sure guide to the advertising attorney, neither the Due Process Clause nor the First Amendment would preclude disbarment as a penalty for the violation of those rules. 16. See supra, at 634. 17. Appellant suggests that he was prejudiced by his inability to present evidence relating to the Board's factual conclusion that it was a common practice for persons charged with drunken driving to plead guilty to lesser offenses. If this were in fact the case, appellant's due process objection might be more forceful. But appellant does not — and probably cannot — seriously dispute that guilty pleas to lesser offenses are common in drunken driving cases, nor does he argue that he was precluded from arguing before the Ohio Supreme Court that it was improper for the Board of Commissioners to take judicial notice of the prevalence of such pleas. Under these circumstances, we see no violation of due process in the Ohio Supreme Court's acceptance of the Board's factual conclusions. See American Trucking Assns., Inc. v. Frisco Transportation Co.,358 U.S. 133, 144 (1958). 18. Appellant's reliance on In re Ruffalo,390 U.S. 544 (1968), is misplaced. Although the majority in that case did hold that a change in the charges against the petitioner during proceedings before the Ohio Board of Commissioners violated due process, the feature of that case that was particularly offensive was that the change was such that the very evidence put on by the petitioner in defense of the original charges became, under the revised charges, inculpatory. Thus, in that case, the original charges functioned as a "trap," id., at 551, for they lulled the petitioner into presenting evidence that "irrecovably assur[ed] his disbarment under charges not yet made." Id., at 551, n. 4. In this case, the variance between the theory of the Office of Disciplinary Counsel and the Board of Commissioners had no such prejudicial effect on appellant. 1. Much of the Court's reasoning appears to rest on the premise that, in the commercial-speech context, "the First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed." Ante, at 652, n. 14. I believe the Court greatly overstates the distinction between disclosure and suppression in these circumstances. We have noted in traditional First Amendment cases that an affirmative publication requirement "operates as a command in the same sense as a statute or regulation forbidding [someone] to publish specified matter," and that "a compulsion to publish that which ` "reason" tells [one] should not be published' " therefore raises substantial First Amendment concerns. Miami Herald Publishing Co. v. Tornillo,418 U.S. 241, 256 (1974). Such compulsion in the advertising context will frequently be permissible, and I agree that the distinction between suppression and disclosure supports some differences in analysis. See n. 2, infra. Nevertheless, disclosure requirements must satisfy the basic tenets of commercial-speech doctrine: they must demonstrably and directly advance substantial state interests, and they may extend no further than "reasonably necessary" to serve those interests. In re R. M. J.,455 U.S. 191, 203 (1982); Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York,447 U.S. 557, 564-565 (1980). 2. I agree that Zauderer's "least restrictive means" analysis is misconceived in the context of commercial-speech disclosure requirements. See ante, at 651-652, n. 14. Zauderer argues that Ohio's interest in preventing consumer deception could more effectively be achieved through direct regulation of contingent-fee agreements themselves rather than through compelled disclosures in advertising. Brief for Appellant 41-43. As we repeatedly have emphasized, however, States have a substantial interest in ensuring that advertising itself is not misleading, see Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772, and regulation of the underlying substantive conduct does not remove the potential for deception in the body of the advertisement. Beyond this, however, a disclosure requirement is "reasonably related" to truth in advertising only to the extent that it satisfies the standards set forth above in text. 3. See, e. g., In re R. M. J., supra, at 200, n. 11 (State must justify restriction in light of "experience"); Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, supra, at 570; Bates v. State Bar of Arizona,433 U.S. 350, 381 (1977); Linmark Associates, Inc. v. Willingboro,431 U.S. 85, 95 (1977) ("The record here demonstrates that respondents failed to establish that [their restriction] is needed"); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., supra, at 769 (Commonwealth's justifications failed on "close inspection"). See also Metromedia, Inc. v. San Diego,453 U.S. 490, 528 (1981) (BRENNAN, J., concurring in judgment). In evaluating the necessary form and content of disclosure, courts of course should be guided by the "enlightenment gained from administrative experience," because regulatory authorities are "often in a better position than are courts to determine" such matters. FTC v. Colgate-Palmolive Co.,380 U.S. 374, 385 (1965); cf. In re R. M. J., supra, at 200, n. 11. Particularly in this First Amendment context, however, such determinations merit deference only to the extent they are supported by evidence and reasoned explanation. 4. The Office of Disciplinary Counsel introduced no evidence and made no arguments concerning this question, and the Board of Commissioners did not address the issue. The Supreme Court of Ohio referred in passing to rate disclosure as contributing to "purposes of clarity." 10 Ohio St.3d 44, 48, 461 N.E.2d 883, 886 (1984). But there is nothing in this record to suggest that a simple reference to contingent fees is unclear, and such cursory and "highly speculative" arguments are an unacceptable substitute for the reasoned evaluation that is required when regulating commercial speech. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S., at 569; see also Bates v. State Bar of Arizona, supra, at 381. 5. Ohio's failure to make such a demonstration is particularly troubling in light of Zauderer's persuasive argument that it is extremely burdensome — and in fact potentially misleading — to attempt to set forth a particular advertised "rate" for personal injury cases. He argues that his contingent-fee rates — like those of many attorneys — vary substantially depending upon the unique factual and legal needs of a given client and the extent of representation that is necessary to advance the client's interests. Zauderer's specific rate information is subject to numerous qualifications and clarifications, all of which are spelled out in a lengthy written contract. See n. 6, infra. It was precisely out of concern that a set "rate" might not accurately encompass the range of potentially required services that some Members of this Court objected to any price disclosure by attorneys in the first instance. See, e. g., Bates v. State Bar of Arizona, 433 U. S., at 386 (BURGER, C. J., concurring in part and dissenting in part); id., at 392 (POWELL, J., concurring in part and dissenting in part). Our approval of attorney price advertising has previously extended only to those services for which fixed rates can "meaningfully be established." Id., at 373. 6. A representative "Retainer Agreement and Contract of Employment" provides, inter alia:"IV. ATTORNEY FEES "I hereby agree to pay P. Q. Z. & A as attorney fees for such representation, which fees are deemed by me to be reasonable: "Thirty-Three and One-Third Per Cent of the gross amount recovered by way of settlement or compromise prior to trial; "Forty Per Cent of the gross amount recovered by way of settlement or compromise or judgment if a trial or any part thereof commences, and an appeal is not necessary; "Forty-Five Per Cent of the gross amount recovered by way of settlement or compromise or judgment if a trial or any part thereof commences, and an appeal is necessary. "The term `gross amount' shall mean the total amount of money recovered, prior to any deduction for expenses, and shall include any interest awarded or recovered. "IT IS AGREED AND UNDERSTOOD THAT THIS EMPLOYMENT IS UPON A CONTINGENT FEE BASIS, AND IF NO RECOVERY IS MADE, I WILL NOT BE INDEBTED TO P. Q. Z. & A FOR ANY SUM WHATSOEVER AS ATTORNEY FEES (EXCEPT AS PROVIDED IN SECTION VIII HEREOF.) "V. COSTS AND OTHER EXPENSES "I understand and agree that out-of-pocket costs incurred or advanced by P. Q. Z. & A in the course of the investigation or in the handling of any litigation or appeal on my behalf including, but not limited to, court costs, long distance telephone charges, court costs, document duplication costs, brief printing costs, postage, court reporter fees, medical report expenses, witness fees, costs of obtaining evidence, necessary disbursements and reasonable travel expenses incurred by P. Q. Z. & A in advancing my cause, must be borne by me. I, thus, agree to reimburse P. Q. Z. & A for any such necessary out-of-pocket expenses it advances on my behalf. "VI. EMPLOYMENT OF EXPERTS AND INVESTIGATORS "P. Q. Z. & A may, in its discretion, employ medical experts or other necessary experts or investigators in connection with my case, after consultation with me. "I understand that all fees and expenses charged by such experts, including witness fees, are my responsibility, and I agree to reimburse P. Q. Z. & A for any such fees or expenses which it advances or incurs on my behalf. "VI. ASSOCIATE COUNSEL AND LEGAL ASSISTANTS "P. Q. Z. & A may, in its discretion, employ associate counsel (including one or more lawyers outside the office of P. Q. Z. & A) and law clerks or legal assistants or paralegals to assist it in representing me. The cost of such assistance shall be borne by P. Q. Z. & A out of the attorney fees, if any, paid under Section IV of this contract. (I understand that if P. Q. Z. & A employs associate counsel, a division of attorney fees, if any, paid under Section IV will be made, and I hereby consent to such employment and division of fees). "VII. RETENTION OF ATTORNEY'S FEES AND ADVANCED COSTS FROM SETTLEMENT PROCEEDS "P. Q. Z. & A may receive the settlement or judgment amount and may retain its percentage of attorney's fees from such sum. Before disbursing the remainder to me, it may deduct therefrom the amount of costs and expenses advanced or incurred by P. Q. Z. & A as herein provided. "VIII. SUBSTITUTION OR DISCHARGE OF ATTORNEY "P. Q. Z. & A shall be entitled to the reasonable value of its professional services (and its costs and other expenses as provided in Section V and VI) in the event I discharge P. Q. Z. & A or obtain a substitution of attorneys before any settlement, compromise or judgment on any claim for the prosecution of which P. Q. Z. & A is hereby retained. ..... "X. COMPENSATION IN EVENT OF SETTLEMENT BY CLIENT "I agree that if I settle my claim or cause of action without the consent of P. Q. Z. & A, I will pay to P. Q. Z. & A:(a) the fee computed in accordance with the terms of this agreement, based upon the final recovery received by me in the settlement, and (b) the costs and expenses as provided in Section V and VI." Attachment A to Response of Respondent Zauderer to Relator's First Set of Interrogatories, No. 454 (Bd. of Commr's on Grievances and Discipline, S. Ct. Ohio). 7. Ohio apparently imposes no comparably sweeping disclosure requirements on advertisements that mention other types of fee arrangements, such as hourly rates or fixed-fee schedules. Cf. Ohio DR 2-101(B) (16)-(17). In the absence of any evidence supporting such extremely disparate treatment — and there is none in this record — one inference might be that contingent-fee advertising is being impermissibly singled out for onerous treatment. Cf. Friedman v. Rogers,440 U.S. 1, 20-24 (1979) (BLACKMUN, J., concurring in part and dissenting in part); Ohralik v. Ohio State Bar Assn.,436 U.S. 447, 475-476 (1978) (MARSHALL, J., concurring in part and concurring in judgment). 8. See also Buckley v. Valeo,424 U.S. 1, 76-82 (1976) (per curiam); Baggett v. Bullitt,377 U.S. 360, 372 (1964); Cramp v. Board of Public Instruction,368 U.S. 278, 287 (1961). 9. Arguably vague regulations may take on "definiteness and clarity" in the context of the profession's "complex code of behavior," and an attorney is properly charged with knowledge of all applicable disciplinary rules and ethical guidelines. In re Bithoney,486 F.2d 319, 324-325 (CA1 1973). See also Comment, ABA Code of Professional Responsibility: Void for Vagueness?, 57 N. C. L. Rev. 671, 676-680 (1979). 10. In addition to ensuring fair notice, vagueness doctrine also guards against " `harsh and discriminatory enforcement . . . against particular groups deemed to merit [official] displeasure.' " Papachristou v. City of Jacksonville,405 U.S. 156, 170 (1972) (citation omitted); see also Kolender v. Lawson,461 U.S. 352, 358 (1983). Some commentators have suggested that vague disciplinary rules have been used as a tool for singling out unorthodox and unpopular attorneys for sanction. See, e. g., Comment, Controlling Lawyers by Bar Associations and Courts, 5 Harv. Civ. Rights-Civ. Lib. L. Rev. 301, 312-314 (1970); Comment, The Privilege Against Self-Incrimination in Bar Disciplinary Proceedings: What Ever Happened to Spevak?, 23 Vill. L. J. 127, 135-136 (1977). See also n. 11, infra. 11. No member of the general public has ever complained to the Office of Disciplinary Counsel about Zauderer's Dalkon Shield advertisement. Second Stipulation of Fact Between Relator and Respondent ¶ 38, App. 41. Instead, the Office filed its charges only as a result of complaints received from other attorneys — including the local counsel for A. H. Robins Company, manufacturer of the Dalkon Shield. Id., ¶¶ 39, 40, App. 41. 12. See, e. g., Brief for Respondent Zauderer In Support Of His Objections, No. DD 83-19 (S. Ct. Ohio), pp. 129-130 (decision of the Disciplinary Board of the Supreme Court of Pennsylvania); id., at 132 (decision of the State Disciplinary Board of the State Bar of Georgia); id., at 135 (decision of the Florida Bar Grievance Committee for the Tenth Judicial Circuit); Statement of Additional Authorities Upon Which Counsel For Respondent Zauderer Intends To Rely, No. DD 83-19 (S. Ct. Ohio), pp. 15-16 (decision of the Office of Trial Counsel, State Bar of California); In re Discipline of Appert & Pyle,315 N.W.2d 204 (Minn. 1981).
The Office of Disciplinary Counsel apparently did not initially view the no-legal-fees statement as deceptive, because it did not so charge until almost five months after the proceedings had commenced. Compare Complaint and Certificate, App. 3, with Amended Complaint ¶¶ 24-27, App. 25. As Zauderer notes, "the fact that the charge was not made in the original complaint suggests that if appellee found the ad misleading, it was only after several readings of both the ad and the Code that it reached this conclusion." Brief for Appellant 38. 13. See, e. g., Hoffman Estates v. The Flipside, Hoffman Estates, Inc.,455 U.S. 489, 498 (1982); Joseph E. Seagram & Sons, Inc. v. Hostetter,384 U.S. 35, 49 (1966). The Court previously has noted that, because traditional prior restraint principles do not fully apply to commercial speech, a State may require "a system of previewing advertising campaigns to insure that they will not defeat" state restrictions. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S., at 571, n. 13. 14. See In re R. M. J., 455 U. S., at 198 (private reprimand). See also In re Primus,436 U.S. 412, 421 (1978) (public reprimand); Bates v. State Bar of Arizona, 433 U. S., at 358 (censure). 15. See, e. g., Govt. Bar Rules IV, V(5)(a), V(20)(a); App. to Juris. Statement 22a-23a. Zauderer also was taxed costs of $1,043.63. Ibid. 16. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," due process guarantees must scrupulously be observed. Wisconsin v. Constantineau,400 U.S. 433, 437 (1971). See also Board of Regents v. Roth,408 U.S. 564, 573 (1972) (same with respect to "any charge . . . that might seriously damage [a person's] standing and associations in his community"); Paul v. Davis,424 U.S. 693, 722-723 (1976) (BRENNAN, J., dissenting) ("[T]he enjoyment of one's good name and reputation has been recognized repeatedly in our cases as being among the most cherished of rights enjoyed by a free people, and therefore as falling within the concept of personal `liberty' "). 17. The First Amendment protects not only the right of attorneys to disseminate truthful information about the availability of contingent-fee arrangements, but the right of the public to receive such knowledge as well. See, e. g., Linmark Associates, Inc. v. Willingboro, 431 U. S., at 96-97; Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 770. Many members of the public fail to consult an attorney precisely out of ignorance concerning available fee arrangements. See, e. g., Ohralik v. Ohio State Bar Assn., 436 U. S., at 473-475 (MARSHALL, J., concurring in part and concurring in judgment); Bates v. State Bar of Arizona, 433 U. S., at 370, and n. 22. Contingent-fee advertising, by providing information that is relevant to the potential vindication of legal rights, therefore serves interests far broader than the simple facilitation of commercial barter. 18. The Court attempts to distinguish Ruffalo by explaining that the absence of fair notice in that case caused the attorney to give exculpatory testimony that, after it prompted the inclusion of additional charges, became inculpatory. Ante, at 655, n. 18. In the instant case, the Court assures, the absence of fair notice was not "particularly offensive" because it simply led Zauderer to refrain from presenting evidence that might have been exculpatory rather than to present evidence having an inculpatory effect. Ibid. This constricted interpretation of due process guarantees flies in the face of what I had thought was an "immutable" principle of our constitutional jurisprudence — that "the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue." Greene v. McElroy,360 U.S. 474, 496 (1959). 19. See generally Govt. Bar Rule V(11)-(20). The attorney may only file a list of objections to the certified findings and recommendations along with a supporting brief. Rule V(18). 20. See Brief for Respondent Zauderer In Support Of His Objections, No. DD 83-19 (S. Ct. Ohio), pp. 76-78. 21. The mere opportunity unsuccessfully to bring procedural violations to the attention of an appellate-type forum obviously does not constitute the meaningful "chance to be heard" that is guaranteed by the Due Process Clause. Cole v. Arkansas,333 U.S. 196, 201-202 (1948). 1. Like the majority, I express no view as to whether this is also the case for broadcast media. As the Court observed in Bates v. State Bar of Arizona,433 U.S. 350, 384 (1977), "the special problems of advertising on the electronic broadcast media will warrant special consideration." 2. See, e. g., Alaska DR 2-104(A); Ariz. DR 2-104(A); Ark. DR 2-104(A); Colo. DR 2-104(A); Conn. DR 2-104(A); Del. DR 2-104(A); D. C. DR 2-104(A); Ga. DR 2-104(A); Ind. DR 2-104(A); Kan. DR 2-104(A); Mo. DR 2-104(A); Mont. DR 2-104(A); Nev. DR 2-104(A); N. M. DR 2-104(A); N. C. DR 2-104(A); N. D. DR 2-104(A); Okla. DR 2-104(A); Tenn. DR 2-104(A); Utah DR 2-104(A); Wash. DR 2-104(A); W. Va. DR 2-104(A); Wyo. DR 2-104(A). 3. See ABA Model Rule of Professional Conduct 7.3 (1983); Haw. DR 2-103, DR 2-104; Me. Rule 3.9(F); Minn. DR 2-103(A) (in person and telephonic solicitation); S. D. DR 2-103, DR 2-104(A). 4. See Idaho DR 2-104; Ky. DR 2-104(A); Md. DR 2-104(A); Mich. DR 2-104(A); Miss. DR 2-104(A); Neb. DR 2-104(A); N. J. DR 2-104(A); N. Y. DR 2-104(A); Ohio DR 2-104(A); Ore. DR 2-104(A); Pa. DR 2-104(A); R. I. DR 2-104(A); Tex. DR 2-104(A); Vt. DR 2-104(A); Wis. DR 2-104(A).
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