Zauderer v. Office of Disciplinary Counsel (1985)

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).

Zauderer was yet another Ohio case involving attorney discipline. However, in this instance the Supreme Court overturned the Ohio attorney regulators: it found that Ohio’s rules prohibiting advertisements that used illustrations or referred to specific legal problems were unconstitutional. 1 The court took pains to distinguish Ohralik and those concerns specific to in-person solicitation; the justices also seemed to display less concern for the dangers of deception in professional advertising than seen three years earlier in In re R.M.J..  For example, the court noted that that distinguishing deceptive from non-deceptive advertising is no more difficult for legal services than it is for all sorts of other goods and services. 2

The court also addressed the undercurrent in attorney advertising regulation that has long justified restrictions as necessary to maintain the “dignity of the profession:”

“As we held in Carey v. Population Services International, 431 U. S. 678, 701 (1977), the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity.” 3

Takeaway:  The third in a row (along with in re Primus and in re R.M.J.) of cases explaining how the the bar’s ability to proscribe an entire category of marketing is quite limited. The opinion is instructive as well when thinking about the restrictions on the use of images and advertising techniques that remain on the books in a number of states.  Were such restrictions challenged in federal court, under Zauderer they would likely be found  unconstitutional. 

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Notes:

  1. Zauderer is most often cited for the portion of the Ohio rules it did uphold: disclosure requirements around how costs are handled in contingent fee cases. I deal with the subject of disclosures and disclaimers in a separate chapter.
  2. 471 U.S., at 645-46.
  3. 471 U.S., at 648.

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