471 U.S. 626 (1985)
In late 1981, Philip Q. Zauderer, an attorney practicing in Columbus, Ohio, placed a small advertisement in the Columbus Citizen Journal offering to represent defendants in drunken driving cases with a full legal fee refund if convicted of drunk driving.1
Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio, telephoned Zauderer the second day the advertisement ran and informed him that it appeared to offer representation on a contingent-fee basis in a criminal case.2 Zauderer immediately withdrew the advertisement and wrote Kettlewell that he would decline any employment resulting from it.3
In the spring of 1982, Zauderer placed a larger advertisement in thirty-six Ohio newspapers.4 The advertisement featured a line drawing of the Dalkon Shield accompanied by the question "DID YOU USE THIS IUD?"5 It described alleged injuries including pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies.6 It also described unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries.7 The advertisement stated that the firm was presently representing women on such cases on a contingent fee basis of the amount recovered and that if there is no recovery, no legal fees are owed by clients.8 The advertisement attracted well over two hundred inquiries and led Zauderer to initiate lawsuits on behalf of one hundred six women.9
On July 29, 1982, the Office of Disciplinary Counsel filed a complaint against Zauderer alleging violations of several Ohio Disciplinary Rules arising from both advertisements.10 With respect to the Dalkon Shield advertisement, the Office of Disciplinary Counsel stipulated that the information and advice regarding Dalkon Shield litigation was not false, fraudulent, misleading, or deceptive and that the drawing was an accurate representation of the Dalkon Shield.11 The complaint charged that the advertisement violated rules prohibiting illustrations, self-recommendation, accepting employment from unsolicited advice, and failing to disclose client liability for costs.12
A panel of the Board of Commissioners on Grievances and Discipline heard the charges and found that Zauderer had violated multiple Disciplinary Rules.13 The Board of Commissioners adopted the panel's findings but recommended indefinite suspension rather than the public reprimand proposed by the panel.14 The Supreme Court of Ohio adopted the Board's findings that appellant's advertisements had violated the Disciplinary Rules specified by the hearing panel and concluded that appellant's conduct warranted a public reprimand.15
Zauderer appealed to the United States Supreme Court. He contended that the Ohio rules violated the First Amendment as applied to the Dalkon Shield advertisement. He also claimed that the manner of discipline for the drunken driving advertisement violated due process.16 The Court noted probable jurisdiction in 1984.17
Whether a state may discipline an attorney for soliciting clients through newspaper advertisements that contain nondeceptive illustrations and legal advice?18
Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.19
No. The Dalkon Shield advertisement described in the established facts was stipulated by the Office of Disciplinary Counsel to contain information and advice that was not false, fraudulent, misleading, or deceptive, and the line drawing was an accurate representation of the device.20 The substantial interests justifying the ban on in-person solicitation in Ohralik v. Ohio State Bar Assn. are absent from print advertising, which lacks coercive force and privacy invasion and allows time for reflection.21 The state's prophylactic rule against legal advice and illustrations in advertising is not justified. The state failed to show that distinguishing deceptive from nondeceptive legal advertising is qualitatively different from other fields of commerce where the FTC has successfully policed deception on a case-by-case basis.22
The state may not discipline an attorney for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of potential clients or for using an accurate illustration.23
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan joined the majority in reversing the reprimand based on the Dalkon Shield advertisement's content and illustration.24 He agreed that states may not discipline attorneys who solicit business by publishing newspaper advertisements that contain truthful and nondeceptive information and advice regarding the legal rights of potential clients and accurate and nondeceptive illustrations.25
Brennan emphasized that the advertisement's information was entirely accurate and that print advertising poses far less risk of overreaching than in-person solicitation.26 He stressed that the concerns motivating the in-person solicitation ban in Ohralik are not present in printed advertisements.27
Joined by The Chief Justice And Justice Rehnquist
Justice O'Connor dissented from the reversal on the use of unsolicited legal advice in the advertisement.28 She argued that the use of such advice to entice clients poses enough of a risk of overreaching and undue influence to warrant Ohio's rule.29
O'Connor stressed that professional services are complex and diverse, so a lay person may lack the knowledge to gauge the quality of the sample before signing up for a larger purchase, and the attorney's personal interest may color the advice offered.30 She concluded that states are entitled to encompass truthful speech within a ban when the advertising threatens substantial state interests in maintaining professional standards.31
Whether a state may require attorneys who advertise contingent-fee arrangements to disclose that clients may remain liable for costs even if no recovery is obtained?32
Disclosure requirements are permissible if reasonably related to the state's interest in preventing deception of consumers.33
Yes. Zauderer's Dalkon Shield advertisement in the established facts stated that if there is no recovery, no legal fees are owed by clients but made no mention of the distinction between legal fees and costs.34 To a layman unaware of the technical meanings of these terms, the advertisement would suggest that employing the attorney would be a no-lose proposition.35 The state's position that this omission is deceptive is reasonable enough to support a requirement that information regarding client liability for costs be disclosed.36
The state may require attorneys who advertise contingent-fee arrangements to disclose that clients may remain liable for costs even if no recovery is obtained.37
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan agreed in principle that a state may impose commercial-advertising disclosure requirements reasonably related to preventing consumer deception.38 He dissented because Ohio's vaguely expressed disclosure requirements failed to satisfy the standard that regulations must directly advance the state interest and extend only as far as the interest served.39
Brennan also concluded that the punishment violated due process and First Amendment guarantees given the lack of notice to Zauderer regarding precisely what disclosures were required.40 He noted that the rules did not on their face require disclosures except when rates were mentioned, which the advertisement did not do.41
Joined by The Chief Justice And Justice Rehnquist
Justice O'Connor joined the majority in upholding the reprimand based on the omission of contingent fee information from the Dalkon Shield advertisement.42 She agreed that appellant was properly reprimanded for his omission of contingent fee information from his Dalkon Shield advertisement.43
O'Connor joined Parts I, II, V, and VI of the Court's opinion and its judgment except insofar as it reverses the reprimand based on the use of unsolicited legal advice.44 She found the disclosure requirement reasonably related to preventing consumer deception.45
Whether an attorney was denied due process when discipline for a drunken-driving advertisement was imposed on the basis of a theory of deception different from the theory charged in the complaint?46
Due process requires reasonable notice of the charges and an opportunity to be heard in defense.47
No. The theory of deception relied on by the Board of Commissioners differed from that asserted by the Office of Disciplinary Counsel in the complaint. This concerned the drunken driving advertisement described in the established facts. Nevertheless, the Board's recommendations put Zauderer on notice of the charges.48 The Ohio rules provided ample opportunity for response to Board recommendations. Zauderer availed himself of that opportunity before the Supreme Court of Ohio.
The attorney was not denied due process by the manner in which discipline was imposed for the drunken driving advertisement.49
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan dissented from the due process holding.50 He argued that the change in theories after the close of evidence violated fundamental principles of procedural due process because Zauderer had no opportunity to object to the propriety of judicial notice or to present opposing evidence against the new theory that the advertisement was misleading because drunken driving charges are often reduced to lesser offenses.51
Brennan concluded that the court completely ignored Zauderer's objections.52 He emphasized that reasonable notice must include disclosure of the specific issues the party must meet and appraisal of the factual material on which the agency relies.53
Joined by The Chief Justice And Justice Rehnquist
Justice O'Connor joined the majority in upholding the reprimand based on the drunken driving advertisement and finding no due process violation.54 She agreed that appellant was properly reprimanded for his drunken driving advertisement and that the notice and opportunity to respond afforded appellant were sufficient to satisfy the demands of due process.55
O'Connor joined Parts I, II, V, and VI of the Court's opinion and found the Board's recommendations put Zauderer on notice of the charges.56