One area that arises repeatedly when it comes to attorney advertising rules is the use of disclaimers and disclosures. Most state advertising rules require disclaimers for certain types of communications. Some of these are straightforward requirements that “advertising” be identified as such; others are a bit more far-reaching. For example:
- Pennsylvania’s Rules of Professional Conduct seem to contain a technical disclosure requirement at every turn.[ref]See Pennsylvania Rules of Professional Conduct 7.2.[/ref]
- New Jersey requires that any comparative advertising by lawyers contain the gently-chiding disclaimer “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.”[ref]New Jersey Rules of Professional Conduct 7.1(a)(3).[/ref]
- New York requires that attorneys advertising that they have been certified as a specialist by another state do so only when such statement is accompanied by a disclaimer admonishing that “Certification granted by the [identify state or territory] is not recognized by any governmental authority within the State of New York.”[ref]New York Rules of Professional Conduct 7.4(c)(2). Until 2013, this disclaimer requirement was longer; it also mandated a statement reading “[2] Certification is not a requirement for the practice of law in the State of New York and [3] does not necessarily indicate greater competence than other attorneys experienced in this field of law.” These provisions were stricken after they were found to violate the First Amendment rights of attorneys. See Hayes v. New York Attorney Grievance Committee, 672 F. 3d 158 (2nd Cir. 2012).[/ref]
With so many detailed requirements, it’s hardly surprising that many practitioners choose to err on the side of caution and include disclaimers on anything remotely commercial in nature.
As discussed in more depth on my compelled speech page, the touchstone case analyzing mandatory attorney advertising disclaimers is Zauderer v. Office of Disciplinary Counsel.[ref]Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).[/ref] Zauderer involved an Ohio requirement that “no recovery, no legal fees” advertising be accompanied by a disclaimer pointing out that the plaintiff may still be liable for legal costs even if no recovery is obtained.
As the court found, Ohio’s disclosure requirement was marked by two notable features. First, “no recovery, no legal fees” advertising is inherently deceptive if it doesn’t address the question of legal costs. Such costs – for filing fees, expert witnesses, court reporters, etc. – can be substantial, and consumers are going to see little distinction between legal “fees” and “costs.” Secondly, an attorney-advertiser has no constitutionally-protected interest in not communicating to consumers that “costs” are handled separately.
There are some nuanced points to keep in mind here:
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Some Speech Compulsions Require a Lesser Showing By the State . . . The Zauderer court found that disclaimer requirements must merely be “reasonably related” to the state’s interest in preventing consumer deception.[ref]471 U.S. at 651.[/ref] As a practical matter, this means that if any reasonable argument can be made that the disclaimer will actually remove deception from advertising, it will pass constitutional muster.
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. . . But Only if the Advertisement Would be Inherently Misleading Without a Disclaimer . . . Justice Brennan, in his concurring opinion, noted that the Supreme Court has repeatedly held that disclosure requirements are permissible only to the extent they are necessary to prevent an advertisement from being deceptive.[ref]471 U.S., at 658.[/ref] This point was emphasized again by the Supreme Court in the “debt relief disclaimer” case of Milavetz v. United States; the court went to some length to explain why the choice between the Zauderer “reasonably related” standard and the Central Hudson “intermediate scrutiny” standard turns on the question of whether the communication to which the disclosure requirement applies would be inherently misleading without it.[ref]Milavetz v. United States, 130 S. Ct. 1324, 1339-1340 (2010).[/ref]
- . . . OR If the Required Disclosure is No Big Deal . . . Lower courts have also latched onto Zauderer as standing for the proposition that the government can also merely meet the “reasonably related” standard if the required disclosure is “purely factual and uncontroversial.” This would rule out a lot of the disclosures found in state Rules of Professional Conduct, but even for those that are plain vanilla, there’s another requirement as well in order to earn the laxer standard:
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. . . AND Isn’t a Pain to Implement. Both Zauderer and Milavetz involved disclaimers that were flexible, allowing attorneys to tailor the disclosures to the circumstances of the communication. Compare this to the the specific disclosure requirements at issue in Ibanez v. Florida, which the Supreme Court found were not appropriately tailored to the potential harm.[ref]“This much is plain, however: The detail required in the disclaimer currently described by the Board effectively rules out notation of the “specialist” designation on a business card or letterhead, or in a yellow pages listing.” 512 U.S. at 146-47.[/ref] Rigid disclaimer requirements (which are found quite often in attorney advertising rules), such as those that obviate the use of certain types of media by mandating font size, color, etc., are far less likely to pass constitutional muster.[ref]There’s a great discussion illustrating how these points work in the Ninth Circuit en banc decision striking down a San Francisco “soda warning” requirement: American Beverage Assn. v. City and County of San Francisco, 916 F.3d 749 (2019).[/ref]
So, to summarize: the state has a lot of leeway to require disclosure of facts that are necessary to correct otherwise-deceptive speech. Same goes for “purely factual and uncontroversial” information.
But other sorts of compelled speech? Or rigid form-and-format requirements? Those rules must still meet the commercial speech standard – which means they must be targeted at material harms and narrowly tailored to address those harms.
In state Rules of Professional Conduct, broad-brush, “counter-advertising” disclosure requirements[ref]For example, Missouri requires that attorney advertisements contain a disclaimer reading “The choice of lawyer is an important decision and should not be based solely on advertisements.” Mo. RPC 4-7.2(f).[/ref] and those mandates that are so rigid as to prevent the use of certain communications media are particularly suspect. In fact, the Fifth Circuit struck down disclosure requirements in Louisiana’s Rules of Professional Conduct on precisely these grounds. The court in that case found unduly burdensome the fact that the disclosure requirements “effectively rule out the ability of Louisiana lawyers to employ short advertisements of any kind.” [ref]Public Citizen v. Louisiana Attorney Disciplinary Board, 632 F.3d 212, 229 (5th Cir. 2011)[/ref]
But Don’t Count on Lower Courts to Get This Right
Sadly, the first part of this nuance may be lost on some courts. A number of lower court decisions gloss over the fact that the “rational basis” standard is only supposed to come into play if the disclosure is modifying inherently deceptive speech or dealing in basic facts. While this lower standard should not be applied to any-and-all disclosure requirements, that’s exactly what some courts have done.
A prime example of a court explicitly making this mistake in the attorney advertising context is Dwyer v. Cappell,[ref]Dwyer v. Cappell, 951 F. Supp.3d 670 (N.J.D.C. 2013).[/ref] decided in June, 2013. Dwyer involved the practice of lawyers taking quotes from judicial orders and using them in their advertising. This sounds unusual, but context is important. These orders were in fee applications brought by the attorneys in question; in such orders it is not at all unusual for the judge to use complimentary language in explaining why the fee award is justified.
Dwyer started pulling these quotes from the opinions and using them on his website. One of the judges objected, and after Dwyer refused to remove the quotes, New Jersey imposed an “advertising guideline” prohibiting the use of quotes or excerpts from judicial opinions. However, the guidelines permit the use of judicial opinions in attorney advertising, so long as the full text is displayed.
Dwyer sued in federal court, and lost. And he probably should have. Quotes from judges are likely to carry a lot of weight with consumers, largely because of their scarcity value: consumers will assume that judges will dole out such praise sparingly, not realizing that these compliments are functions of the workaday business of ruling on fee applications, rather than some rarefied benediction. It’s easy to see why the use of such quotes in advertising would be, as the state of New Jersey argued, inherently misleading without some form of disclosure.
The problem is that the Court explicitly found that threshold question of whether the communication was “inherently misleading” didn’t matter. Since the guideline involved a disclosure requirement rather than a limitation on speech[ref]It’s a dubious conclusion that the Guideline was merely a disclosure requirement, as it explicitly prohibits the use in marketing of quotes and excerpts from judicial opinions. And by the same token, the Guideline is quite burdensome, as it completely forecloses the use of judicial praise by requiring publication of the entire text. This isn’t to say that using such quotes willy-nilly should be permitted. But the Guideline is a bad law; it could be far more narrowly tailored.[/ref], all it needed to do, the Court reasoned, is meet the lesser “reasonably related” test.
Fortunately, the 3rd Circuit overruled the District Court, finding that the New Jersey Guideline violated Dwyer’s first amendment rights.[ref]Dwyer v. Cappell, 762 F.3d 275 (2014). Importantly, the court noted that the Guideline failed both because it was not “reasonably related to preventing consumer deception” and because it was overly burdensome.