In this case, decided four years after Ohralik and Primus, the Supreme Court found unconstitutional a series of Missouri rules that prohibited the advertising of descriptive practice areas, licensed jurisdictions and other information. What’s a “descriptive practice area?” Well, in one case, the attorney was disciplined for advertising his practice as that of “personal injury” rather than “tort law.” 1
The court struck down Missouri’s restrictions, noting:
“States may not place an absolute prohibition on certain types of potentially misleading information . . . if the information also may be presented in a way that is not deceptive.” 2
However, the justices also displayed their continuing suspicion about the propriety of professional advertising, suggesting that speech-limiting mechanisms such as disclaimers and submission of advertising to review boards were acceptable regulations.
Takeaway: While the bar may prohibit advertising techniques that are actually deceiving or inherently likely to deceive, it cannot prohibit forms of advertising merely because they have the potential to be misleading.
However, as with the court’s other early attorney advertising cases, there is a continuing undercurrent that could be described like this: the court believes that there may be a greater need for regulation of professional advertising than exists for other products and services. This suggests that in close cases examining whether particular attorney advertising regulations meets the requirements of Central Hudson, the court will side with the regulators.
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