A case involving Illinois attorney regulation, Peel saw the Supreme Court once again reject as unconstitutional a set of overreaching attorney advertising regulations.
Attorney Gary Peel was censured for using letterhead stating that he was certified as a civil trial specialist by the National Board of Trial Advocates. Under Illinois law, attorneys were prohibited from holding themselves out as certified specialists. As in earlier cases, the state of Illinois based this prohibition on such advertising’s “potential to mislead.”
The Court found that while the potential to mislead was certainly present in such advertising, the same could be said for virtually any factual statement about an attorney’s background or qualifications:
“Even if we assume that petitioner’s letterhead may be potentially misleading to some consumers, that potential does not satisfy the State’s heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information to the public.”[ref]496 U.S., at 109.[/ref]
As it was factually accurate to say that Peel HAD been certified as a specialist by the NBTA, the Court found that Illinois could not constitutionally prohibit Peel from communicating this fact. Once again, Justice O’Connor in dissent lamented the descent of attorney advertising into the crass commercialism characterizing the marketing for other types of products and services.
Takeaway: One of the clearest statements yet of a key principle of advertising regulation – the mere “potential to mislead” is not an adequate basis for the state to prohibit a form of marketing communication.