Also known as: inherently misleading speech · inherently deceptive
Written by attorneys — see sources below.
A form of commercial speech that is misleading by its very nature. No evidence of actual deception is required for the government to regulate or prohibit it under the First Amendment.
Ian Iverson lists his CPA and CFP credentials on his firm website after verifying both licenses remain active. State regulators seek discipline solely because the designations appear. The court finds the statements truthful and verifiable, so they are not inherently misleading and receive First Amendment protection.
Iain Irons mails announcements stating he handles personal injury and real estate matters and is admitted in two states. The bar challenges the mailing list size and wording. The court holds the descriptions are truthful and common, so they are not inherently misleading and cannot be banned outright.
Ines Ibarra posts a video of a client praising a large verdict without any disclaimer that results vary. The bar finds the testimonial inherently misleading because it suggests typical outcomes. The court upholds discipline even though the quoted statement is literally accurate.
Iain Iverson sends targeted direct-mail letters describing foreclosure services to potential clients known to face that problem. The bar bans the letters as inherently misleading. The court holds the truthful, non-deceptive letters are not inherently misleading and receive First Amendment protection.
In 1985, petitioner Shapero, a member of Kentucky’s integrated bar, applied to the Kentucky Attorneys Advertising Commission for approval of a letter he proposed to send to potential clients who had foreclosure suits filed against them. The proposed letter stated that it had come to the lawyer’s attention that the recipient’s home was being foreclosed on, suggested that federal law might allow the recipient to keep the home, and offered free information from the lawyer’s office during business hours, urging the recipient to call immediately. The Commission found the letter neither false nor misleading yet declined approval under Kentucky Supreme Court Rule 3.135(5)(b)(i), which barred written advertisements precipitated by a specific event involving the addressee. The Commission recommended amending the rules to conform with constitutional requirements as interpreted in Zauderer, prompting Shapero to seek an advisory opinion from the Committee on Legal Ethics of the Kentucky Bar Association. The Ethics Committee upheld the prohibition, finding it consistent with ABA Model Rule 7.3. On review, the Kentucky Supreme Court deleted Rule 3.135(5)(b)(i) and replaced it with ABA Model Rule 7.3, which likewise prohibits targeted direct-mail solicitation by lawyers for pecuniary gain absent any finding that a particular letter is false or misleading. The United States Supreme Court granted certiorari to resolve the First Amendment question.
View caseIndia Inoue runs an ad stating she is handling Dalkon Shield claims and inviting similar clients. The state claims the ad is inherently misleading because it targets a specific product. The court rejects the claim because the statements are factual and do not guarantee results.
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. 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. Zauderer immediately withdrew the advertisement and wrote Kettlewell that he would decline any employment resulting from it. In the spring of 1982, Zauderer placed a larger advertisement in thirty-six Ohio newspapers. The advertisement featured a line drawing of the Dalkon Shield accompanied by the question "DID YOU USE THIS IUD?" It described alleged injuries including pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It also described unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. 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. The advertisement attracted well over two hundred inquiries and led Zauderer to initiate lawsuits on behalf of one hundred six women. 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. 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. 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. A panel of the Board of Commissioners on Grievances and Discipline heard the charges and found that Zauderer had violated multiple Disciplinary Rules. The Board of Commissioners adopted the panel's findings but recommended indefinite suspension rather than the public reprimand proposed by the panel. 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. 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. The Court noted probable jurisdiction in 1984.
View caseIsmael Ibrahim places NBTA civil trial specialist certification on his letterhead. The commission finds the claim inherently misleading because Illinois does not formally recognize the specialty. The court holds that a truthful private certification is not inherently misleading absent evidence of actual confusion.
Gary E. Peel practices law in Edwardsville, Illinois. He was licensed to practice in Illinois in 1968, in Arizona in 1979, and in Missouri in 1981. Peel has served as president of the Madison County Bar Association and has been active in both national and state bar association work. He has tried to verdict over 100 jury trials and over 300 nonjury trials. NBTA issued Peel a Certificate in Civil Trial Advocacy in 1981, renewed it in 1986, and listed him in its 1985 Directory of Certified Specialists and Board Members. Since 1983 petitioner's professional letterhead has contained a statement referring to his NBTA certification and to the three States in which he is licensed, appearing as Gary E. Peel, Certified Civil Trial Specialist By the National Board of Trial Advocacy, Licensed: Illinois, Missouri, Arizona. In 1987 the Administrator of the Attorney Registration and Disciplinary Commission of Illinois filed a complaint alleging that Peel, by use of this letterhead, was publicly holding himself out as a certified legal specialist in violation of Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. The complaint also alleged violations of Rule 2-101(b) and Rule 1-102(a)(1). After a hearing the Commission recommended censure for a violation of Rule 2-105(a)(3). The Illinois Supreme Court adopted the Commission's recommendation for censure in 1989. The United States Supreme Court granted certiorari, with argument held on January 17, 1990.
View caseA state may ban lawyer advertising that is inherently misleading by its nature. No evidence of actual deception is required when the format or claim creates a substantial likelihood of misleading the public.
No. A truthful and verifiable private certification is not inherently misleading. The state must show actual or inherent deception rather than rely on the absence of official recognition.
Selective testimonials that highlight favorable results without disclaimers suggest typical or guaranteed outcomes. The format itself creates an inherent risk of deception even when the quoted statement is literally true.
Yes. An ad offering fixed fees for apparently simple matters can be inherently misleading when it fails to inform clients that individual cases may prove more complex than they appear.
…"misleading" and which are justifiable. Nor am I sure that even advertising the price of certain professional services is not inherently misleading, since what the professional must do will vary greatly in individual cases. It is important to note that the Court wisely leaves these issues to another day. Concurring — Justice…