Concept
Why Deception Is the Target
False or misleading communications about the lawyer or legal services
Why Deception Is the Target
Rule 7.1 forbids a lawyer to make a “false or misleading communication about the lawyer or the lawyer’s services,” and it defines the phrase by two limbs: a material misrepresentation of fact or law, and the omission of a fact needed to keep the statement, considered as a whole, from being materially misleading.1 The text never mentions dignity, good taste, or the profession’s image. A body of rules written by lawyers could easily have reached those subjects, since the organized bar once defended its advertising ban in those very terms.2 Rule 7.1 stops at deception because the First Amendment lets a state regulate misleading advertising freely and gives it far less room to regulate truthful advertising.
The reason lies in constitutional law. Lawyer advertising is now constitutionally protected commercial speech, a status that traces to the 1977 decision in Bates.3 Once truthful advertising had that protection, the profession’s older justifications for a ban had to answer to the First Amendment, and the justification that remained defensible was protecting the public from deception.4 Two steps trace how the law got there. Bates ended blanket suppression of lawyer advertising. The Central Hudson framework then sorted speech a state may regulate freely from speech it may regulate only on a showing. Read in that order, the two show that Rule 7.1’s narrow focus follows from the limits the First Amendment places on a state that regulates truthful speech.
From Ban to Bates
Bates v. State Bar of Arizona struck down Arizona’s ban on lawyer advertising. In 1977 the Supreme Court held that advertising by attorneys may not be subjected to blanket suppression and that the advertisement before it was protected, and it added at once that it did not hold that advertising by attorneys may not be regulated in any way.5 Both halves of that statement matter, and each is easier to grasp once you see what the decision displaced.
Before 1977, most states maintained an outright prohibition of lawyer advertising and solicitation.6 Arizona’s Disciplinary Rule 2-101(B) barred lawyers from publicizing themselves through “newspaper or magazine advertisements, radio or television announcements, display advertisements in the city and telephone directories or other means of commercial publicity,” with a sole exception for a listing in a “reputable law list” or “legal directory.”7
Two justifications supported so broad a rule. The organized bar condemned advertising as crass, beneath the dignity of the profession, and likely to undermine respect for lawyers and the judicial system.8 It also held that a client should choose a lawyer on character and reputation, so that promoting legal services like a consumer product was inherently deceptive.9 The second justification carried more legal weight. If every lawyer advertisement deceives, regulators need not examine advertisements one at a time, and a flat ban looks like a rule against fraud rather than a rule against speech. That is why the Court had to meet the second justification head-on.
The lawyers who challenged the rule ran an advertisement in the Arizona Republic on February 22, 1976.10 It stated fees for routine legal services. Because the rule barred newspaper advertisements without asking whether they were true, the case tested whether a state could enforce a flat ban against an accurate one.
The dignity justification fared badly because of its pedigree. The ban appears to have begun as a rule of etiquette, not a rule of ethics: early British lawyers viewed the law as public service rather than a means of earning a living, and they looked down on “trade” as unseemly.11 A rule of etiquette is a thin basis for suppressing information that consumers can use, and the Court would not let the profession’s self-image carry the ban.
The inherently-misleading justification rested on arguments that the Court took in turn. One was that legal services are too individualized for an advertisement to say anything reliable. That argument failed for a routine service advertised at a stated price, because such an advertisement does not mislead when the lawyer does the necessary work at that price.12 Another was that advertising ignores the diagnostic role of the lawyer, and it fared little better. Few people go to a lawyer merely to learn their legal health; clients hire lawyers for specific tasks, and a client can identify the service he wants at the level of generality to which advertising lends itself.13
Advertising can still leave out something a consumer would want to know, and here the Court set its rule about remedies. The bar keeps the power to correct omissions that present an inaccurate picture, but “the preferred remedy is more disclosure, rather than less.”14 If the public’s naiveté would make attorney advertising misleading, the bar’s role is to inform the public well enough to place the advertising in proper perspective.15 The difference is one of subtraction against addition. A ban on an incomplete advertisement leaves the consumer with nothing, while a requirement that the advertiser supply the missing piece leaves the consumer with the original information plus that piece. Later sections on potentially misleading speech return to disclaimers and required disclosures.
Bates also marked its own boundaries. The Court did not decide whether claims about the quality of legal services may be advertised, observing that such claims probably cannot be precisely measured or verified and might be deceptive, misleading, or even false.16 It set aside in-person solicitation, which carries dangers of overreaching and misrepresentation that a newspaper announcement does not.17 It noted that a truthful claim of “certification” could lose protection if the certification were a sham.18 And it allowed that some limited warning or disclaimer might be required even of an advertisement like the one it protected, so that the consumer is not misled.19
Later decisions filled in the solicitation side. Ohralik v. Ohio State Bar Association held that the possibility of “fraud, undue influence, intimidation, overreaching, and other forms of ‘vexatious conduct’” was so likely in in-person solicitation that it could be prohibited.20 Friedman v. Rogers upheld Texas’s ban on optometrists’ trade names, particularly in view of the state’s history of deception and abuse of consumers through trade names.21 In each case the state’s power rested on a danger of deception or abuse, not on the profession’s dignity.
The line between protected and regulable advertising therefore runs through the content of the message. The Bates advertisement was accurate, and the Court refused to let the state suppress it.22 The advertisement in re Kaszynski said the office spoke Spanish when only a nonlawyer assistant did, and the court held it misleading.23 Each was a lawyer’s advertisement aimed at the public. What separates them is whether the message told consumers something the lawyer could not deliver, and advertising that is false, deceptive, or misleading is subject to restraint.24
The second response follows Bates. It keeps the price information flowing and supplies the piece the advertisement left out, while the first removes truthful information to cure a gap that one sentence of disclosure would fill. Whether the missing fee makes the advertisement misleading at all is a question under the omitted-fact limb of Rule 7.1, which a later section develops.25 The point here is the shape of the cure.
Today Rule 7.1 occupies the ground Bates left to regulators. It forbids false or misleading communications about the lawyer or the lawyer’s services and says nothing about taste or dignity.26 Regulation of advertising now focuses narrowly on false or misleading communications, even though direct solicitation of clients remains forbidden with limited exceptions.27 The framework that polices the boundary between protected and regulable advertising is the subject of the next subsection.
The Central Hudson Test
Lawyer advertising counts as commercial speech, speech that proposes a commercial transaction, and courts review restrictions on it under the framework of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.29 The framework divides commercial speech into two groups. Government may freely regulate speech that is false, deceptive, or misleading, or that proposes an illegal transaction.30 It may restrict all other commercial speech only in the service of a substantial governmental interest, and only through means that directly advance that interest.31 Bates settled that lawyers may advertise truthfully; this framework supplies the method for deciding which restrictions a state may still impose. The Court has applied it to lawyer solicitation rules as well, as in Florida Bar v. Went For It, Inc. The First Amendmentt protects commercial speech, though somewhat less extensively than it protects noncommercial speech.32 One concern behind the lower tier is practical: full protection for every commercial communication would draw the plethora of ordinary regulation of economic transactions under demanding review.33 The middle tier takes truthful advertising seriously and still leaves the state room to police the marketplace.
Courts count the test sometimes as four parts and sometimes as a threshold followed by three prongs, and the two counts describe one sequence. The four-part version treats the threshold inquiry (lawful activity, not misleading) as the first part, then adds substantial interest, direct advancement, and the requirement that the regulation be no more extensive than necessary.36
The threshold exists because speech that misleads has no claim to protection. Much commercial speech is not provably false, or even wholly false, but only deceptive or misleading, and the Court foresaw no obstacle to a state’s dealing effectively with that problem: the First Amendment does not prevent a state from insuring that the stream of commercial information flow “cleanly as well as freely.”37 Commercial speech earns protection by informing consumer choices, so an advertisement that misleads corrupts the very choice it claims to inform. The same threshold removes speech that proposes an illegal transaction.38
Each of the three prongs guards against a different way regulators go wrong. The substantial-interest prong makes the state name a real purpose, so generalized unease about advertising cannot justify suppression; in the R.M.J. case below, the state’s committee suggested no substantial interest that its restriction promoted.39 The direct-advancement prong asks whether the rule actually reduces the harm the state identified, so a restriction that burdens speech without touching that harm fails. The narrow-drawing prong limits the burden to what the interest requires, and for professional advertising the Court put it concretely: restrictions may be no broader than reasonably necessary to prevent deception.40 Professional services call for one adjustment, because the framework applies with the understanding that their special characteristics offer opportunities to mislead and confuse that standardized products and services do not.41 That adjustment explains why a state may impose appropriate restrictions when the content or method of an advertisement is inherently misleading, or when experience shows it is subject to abuse.42
Which branch of the sequence applies depends on what the advertisement says. In re Huelskamp, a lawyer advertised twenty years of United States Marine Corps experience when he had served as an ROTC instructor, not a Marine Corps lawyer, and he was disciplined.43 The advertisement misdescribed his credentials, so it was misleading, and the threshold inquiry resolved the case for the state. The state did not need to identify a substantial interest or show narrow drawing, because misleading speech sits in the category a state may regulate freely.44
re R.M.J shows the same framework running the other way. Missouri reprimanded a lawyer for departing from the precise listing of practice areas in an Advisory Committee addendum to Rule 4; he had also stated the jurisdictions where he was licensed and mailed announcement cards to people outside the group the rule permitted. The Court reversed. The state did not argue that his practice-area listing was misleading, and the words “real estate” in place of “property” could scarcely mislead the public. Terms such as “contracts” and “securities,” which appeared nowhere on the prescribed list, presented no apparent danger of deception.45 Because the listing had not been shown to mislead and the Advisory Committee suggested no substantial interest promoted by the restriction, that portion of the rule was an invalid restriction as applied.46
The Court reached the same result on the rule’s other restrictions. Stating the jurisdictions where he was licensed was factual and relevant given the geography of his practice, and no substantial interest supported forbidding it. The limit on announcement cards failed at the last step: the record did not show that difficulty supervising mailings was the reason for the limit, and a less restrictive path, such as requiring a copy of every general mailing to be filed with the Advisory Committee, might have allowed reasonable supervision.47 In sum, an absolute prohibition on his speech, without a finding that the speech was misleading, did not meet the constitutional requirements.48
Both lawyers described their credentials and practices to the public, and both faced discipline. What moved the outcome was whether the message deceived. Huelskamp’s claim misled, while R.M.J.’s listing had not been shown to mislead; the state could punish the first without the three-prong showing and could not punish the second without it.
R.M.J. also left a question open that matters later. His announcement listed, in large capital letters, his membership in the Bar of the Supreme Court of the United States. The Court called the emphasis on that relatively uninformative fact at least bad taste and observed that it could mislead a public unfamiliar with how one is admitted to that bar. It still declined to sustain discipline, because the Missouri Supreme Court had made no finding of deception, nothing in the record showed that the statement misled, and the rule neither flagged the statement as potentially misleading, nor limited type size, nor required an explanation of the Supreme Court Bar.49 Bad taste alone did not justify discipline, and the Court left room for a narrower rule aimed at potential deception. The general principle is that misleading advertising may be prohibited entirely, but a state may not absolutely prohibit potentially misleading information, such as a listing of areas of practice, if it can also be presented in a way that is not deceptive; the first remedy is preferably a disclaimer or explanation.50 A later section develops that tier.
Rule 7.1 targets exactly the category at the top of the sequence. A communication that contains a material misrepresentation of fact or law, or omits a fact needed to keep the statement from being materially misleading, is a misleading communication.51 A state that disciplines a lawyer for such a message acts where the framework permits free regulation. A rule that reaches accurate speech must instead clear all three prongs, and the cases in this chapter show regulators losing when they cannot tie a restriction to a substantial interest or when a narrower tool would do. Restrictions aimed at potential deception have generally not fared well, and the Court has approved a prophylactic ban only for in-person solicitation.52 That record explains why the content standard for lawyer advertising is built around deception.