Concept
Potentially Misleading Speech
False or misleading communications about the lawyer or legal services
Potentially Misleading Speech
Rule 7.1 forbids “a false or misleading communication about the lawyer or the lawyer’s services,” and it defines the offense as a material misrepresentation of fact or law, or the omission of a fact needed to keep the statement, considered as a whole, from being materially misleading.1 That text tells a lawyer what to avoid before publishing. It does not tell a disciplinary authority how far it may go afterward against a statement that might mislead but has not been shown to. The First Amendment answers that question, and it answers by sorting misleading speech into tiers.
A state may ban speech that is actually misleading or inherently likely to deceive. It may not impose an absolute ban on speech that is only potentially misleading, meaning information some readers might misunderstand but a lawyer can present without deceiving anyone. The reason lies in what each response costs. A ban strips out accurate information along with the risk; a disclaimer or explanation keeps the accurate information and repairs only the part that could mislead. When the narrower tool protects consumers as well as a ban would, the state’s interest no longer justifies the heavier burden on truthful speech.
The first subsection below sets out the tiers and the narrower tools. The second takes up the required disclosure itself and the limits on how much a state may make a lawyer add.
Bans Versus Disclaimers
In In re R.M.J. the Court put the starting point this way: “Misleading advertising may be prohibited entirely.” But a state may not impose an absolute prohibition on certain types of potentially misleading information, such as a listing of areas of practice, if the information can also be presented in a way that is not deceptive.2 The preferred first step comes from Bates, which suggested that the remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation.3 Three tiers result, and the state’s options narrow as the risk of deception falls:
- Actually misleading speech, meaning a statement that is false or that the record shows has in fact deceived, may be prohibited entirely.4
- Inherently misleading speech, meaning speech so likely to deceive that discipline is permissible without proof that a given audience was fooled, may also be prohibited.5
- Potentially misleading speech, meaning information that could confuse some readers but can be presented so that it deceives no one, may not be absolutely banned, and the first remedy is a disclaimer or explanation.6
The first two tiers share a feature the third lacks. The risk comes from the content, the method, or the documented record, so the state need not prove deception one advertisement at a time. In Ohralik the Court upheld a ban on in-person solicitation because “fraud, undue influence, intimidation, overreaching, and other forms of ‘vexatious conduct’” were so likely in that setting, and in Friedman v. Rogers it allowed Texas to prohibit optometrists’ trade names in light of the state’s considerable history of deception and abuse worked on consumers through them.7 The Peel plurality drew the same boundary. In-person solicitation is inherently conducive to overreaching, but a statement on a letterhead does not raise the same concerns, because the recipient of a letter has no “badgering advocate breathing down his neck” and can take time to reflect. The Court has also suggested that speech devoid of intrinsic meaning may be inherently misleading, especially if it has historically been used to deceive, but a certification claim imparts some information, and the state had made no showing that similar claims had been used to deceive.8
No tier lets a regulator treat advertising’s self-interest as the deception. All advertising is at least implicitly a plea for its audience’s custom, and in Zauderer the Court observed that a reading of a disciplinary rule broad enough to condemn that quality would forbid all attorney advertising, a result obviously not in keeping with Bates and R.M.J.9
The third tier gets a different remedy because of what each response does to the truthful part of the message. A ban removes the accurate information along with the risk. In Bates the Court said that although the bar keeps the power to correct omissions that present an inaccurate picture, the preferred remedy is more disclosure, rather than less, and that if the public’s naiveté will make attorney advertising misleading, the bar’s role is to see that the populace is informed enough to place advertising in its proper perspective.10 Information about certification and specialties, the Court later added, facilitates the consumer’s access to legal services and thus better serves the administration of justice, so a ban gives up something real.11 The logic is also practical. Almost any statement could confuse some reader, and a rule that permitted a ban whenever confusion is conceivable would leave little truthful advertising standing. The third tier is no safe harbor, though, because restrictions on potentially misleading advertising remain valid when they are no broader than reasonably necessary to prevent the deception.12
The announcement in R.M.J. shows a statement that belongs in the third tier. The lawyer stated, in large capital letters, that he was a member of the Bar of the Supreme Court of the United States, and Shapero later cited that statement as an example of unduly emphasizing a trivial or relatively uninformative fact.13 The Court still would not sustain the discipline. There was no finding that the speech was misleading; the Court could not call it inherently misleading, and it could not say that restrictions short of an absolute prohibition would have failed to cure any possible deception.14 A limit on type size or a short explanation of the Supreme Court Bar is the kind of narrower measure the state might have tried. The Court added that states keep the authority to regulate advertising that is inherently misleading or has proved misleading in practice.15 Rule 7.1 asks whether a communication misleads, not whether it is tasteful, and the capital letters alone did not answer that question.
Certification claims show where the third tier ends. Peel involved a lawyer whose Illinois letterhead described him as a “Certified Civil Trial Specialist By the National Board of Trial Advocacy” (NBTA) and listed the states in which he was licensed. The plurality said that a state may not completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations like the NBTA. To the extent such statements could confuse consumers, it said, the state might screen certifying organizations or require a disclaimer about the certifying organization or the standards of a specialty.16 The protection is framed around bona fide certifiers, which is why screening the certifier is a legitimate tool. A certificate from a body that vets no one is not the kind of statement the Court protected.
The votes in Peel show how the tiers operate when Justices disagree about where a statement belongs. Four Justices would have protected the letterhead as written.17 Three, in a dissent by Justice O’Connor, thought a claim of certification inherently likely to deceive despite its truth.18 Justice Marshall, concurring in the judgment, saw two ways the letterhead could mislead. The word “National” in the board’s name could suggest that a federal agency stood behind it, and the placement of the certification beside the line “Licensed: Illinois, Missouri, Arizona” could suggest that the listed states sanctioned the board.19 His remedy matched the tier: a disclaimer that the board is a private organization not affiliated with or sanctioned by the state or federal government, or information about the board’s certification requirements.20 Justice White, dissenting, agreed that a state may not apply a flat ban to every claim of certification, particularly those carrying disclaimers, but would have let Illinois forbid this letterhead in its present form.21 Five Justices therefore treated the letterhead as at least potentially misleading.
Shapero v. Kentucky Bar Association supplies the most concrete menu of narrower tools. The Court held that opportunities for isolated abuses or mistakes do not justify a total ban on targeted direct-mail solicitation, a protected mode of commercial speech.22 The state can regulate abuses and minimize mistakes through far less restrictive and more precise means. The most obvious is to require the lawyer to file any solicitation letter with a state agency, which gives the state ample opportunity to supervise mailings and penalize actual abuses. The state might also require the lawyer to prove the truth of a fact stated, to explain how he or she discovered and verified it, or to label the letter as an advertisement or tell the recipient how to report inaccurate or misleading letters.23 The label is a disclaimer in the plainest sense, since it leaves the letter in the recipient’s hands and adds only context. The tools work because the regulatory difficulties unique to in-person solicitation, which is not open to public scrutiny and leaves little reliable proof of what took place, do not apply to written solicitations.24 Shapero also marks what a regulator may still police. A letter may mislead if it unduly emphasizes trivial or relatively uninformative facts, or if it offers overblown assurances of client satisfaction.25
The third step does the work, and students err on both sides of it. One error treats literal truth as a complete shield, but the Court’s protection runs to certification by bona fide organizations. The other treats any risk of confusion as enough to justify a ban, which the capitalized Supreme Court Bar listing refutes. A true credential that some readers might misread belongs in the third tier. A disclaimer remedy raises its own question, which is how much a state may force a lawyer to add, and the next subsection takes it up.
Required Disclosures
Where a ban subtracts from a lawyer’s message, a required disclosure adds to it, and the difference changes the standard. In Zauderer, Ohio reprimanded a lawyer whose Dalkon Shield advertisement offered representation on a contingent-fee basis and told the public that “if there is no recovery, no legal fees are owed by our clients.” The advertisement never mentioned the difference between legal fees and costs. To a layperson who did not know those terms of art, the Court reasoned, it suggested a no-lose proposition in which a losing case would come entirely free of charge.28 The Court affirmed the reprimand to the extent it rested on the omission of contingent-fee information.29
The Court held that an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the state’s interest in preventing deception of consumers.30 That test is easier to meet than the one that governs restrictions, which asks whether a restriction is no broader than reasonably necessary to prevent the deception.31 The difference rests on the Court’s observation that in virtually all its commercial speech decisions, disclosure requirements trench much more narrowly on an advertiser’s interests than flat prohibitions do, so that “warning[s] or disclaimer[s] might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception.”32 The tools Shapero offered in place of a ban, such as labeling a mailed letter as an advertisement, are requirements of this kind.33
The test asks about relationship, not about alternatives. A requirement that had to beat every lighter alternative a court could imagine would rarely survive, since a lighter one can almost always be imagined, and the remedy the Court prefers to bans would end up harder to defend than the bans themselves. The costs disclosure shows the test being met. When the possibility of deception is as self-evident as it was there, the state need not survey the public before concluding that the advertisement tended to mislead.34 Its position that it is deceptive to advertise contingent-fee arrangements without mentioning the client’s liability for costs was reasonable enough to support a requirement that the information be disclosed, and the requirement easily passed muster.35 Justice Brennan, writing separately, rested the same result on the general public’s unfamiliarity with the distinction between fees and costs.36 The omission limb of Rule 7.1 explains the fit. The fact the rule treats as necessary to keep a message from misleading as a whole is the fact a state may compel the lawyer to add.37
The standard is not a blank check, and the first limit is burden. The Court recognized that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech.38 A mandated addition large enough to crowd out the lawyer’s own message may lead the advertiser to say less, and consumers then lose the information the disclosure was meant to protect. Peel offers an illustration, though it comes from a separate opinion and not a holding. Justice Marshall reasoned that a state may require more than the bare fact of an NBTA certification, such as a disclaimer that the board is a private organization not sanctioned by any government or information about its certification requirements. A state may not, he said, require an exhaustive, detailed recounting of those requirements on the letterhead, because more limited disclosure would suffice to prevent confusion.39 The costs disclosure was a single fact whose absence produced a specific misreading, while an exhaustive account of a certifier’s standards would supply far more than the correction needs.
Justice Brennan’s separate opinion frames the limit more tightly. He agreed that a state may require a costs disclaimer, provided the disclaimer is “no broader than reasonably necessary to prevent the deception.”40 That is the formulation used for restrictions on potentially misleading speech generally, and the majority did not adopt it for disclosures. The majority’s reasonable-relationship test is the holding to state, and on the costs disclosure both formulations reach the same result.
The last limit concerns the lawyer’s side of the discipline, because a duty to disclose can support a sanction only if the lawyer could know what it required. The Court warned that disbarring a lawyer under disclosure requirements that had not been worked out clearly may raise significant due process concerns, since a relevant question in disbarment is whether the lawyer was on notice that the conduct would be condemned.41 The public reprimand actually imposed was affirmed as to the costs omission, where the possibility of deception was self-evident.42 Had the rules given the advertising lawyer a sure guide, neither due process nor the First Amendment would bar even disbarment for violating them.43 A vague duty forces the advertiser to guess, so the severity of the sanction has to track the clarity of the rule.
Students tend to err in two directions. Some import the “no broader than reasonably necessary” test for restrictions into a disclosure question, which overstates the lawyer’s position. Others treat every compelled statement as automatically valid, which ignores the burden and notice limits. The costs disclosure sits where the standard is met, the exhaustive recounting of a certifier’s requirements sits where it is not, and an unclear rule raises a problem with the penalty that can arise even when the content of the disclosure is acceptable.