Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985)

Indian advocates are barred from advertising by the Bar Council of India Rules, and Indian courts have repeatedly defended that bar as part of the dignity of a noble profession. Zauderer is the leading American case on the other side of the argument. When the Supreme Court of India has surveyed the American position, it has noted that the US Supreme Court in Zauderer struck down disciplinary action against a lawyer for advertising in print, while American rules continue to bar in-person solicitation.

The case gives you the clearest statement of the distinction that runs through this whole area: a printed advertisement is not the same thing as a lawyer approaching a stranger in person. Learn that distinction and you can answer any comparative question on advertising by lawyers.

The appellant was an attorney practising in Columbus, Ohio. Late in 1981 he advertised in local newspapers.

1. The drunk-driving advertisement. He first ran a small advertisement saying his firm would represent defendants in drunken driving cases and that the client's full legal fee would be refunded if the client was convicted of drunk driving. A lawyer from the Office of Disciplinary Counsel telephoned him and said this looked like an offer to act on a contingent fee in a criminal case, which Ohio's rules forbade. He withdrew the advertisement at once and apologised.
2. The Dalkon Shield advertisement. In spring 1982 he advertised in 36 Ohio newspapers offering to represent women injured by a contraceptive device, the Dalkon Shield. The advertisement carried a line drawing of the device with the question "DID YOU USE THIS IUD?", said that the device was alleged to have caused serious injuries, told readers not to assume it was too late to take legal action, and said: "If there is no recovery, no legal fees are owed by our clients." He received well over 200 inquiries and filed suits for 106 women.

The Office of Disciplinary Counsel charged him with breaking several Ohio Disciplinary Rules: the drunk-driving advertisement was said to be deceptive; the Dalkon Shield advertisement was said to break the rule against illustrations in lawyers' advertisements, the rules against self-recommendation and against accepting employment resulting from unsolicited legal advice, and the rule against deception, because it did not tell clients they might still have to pay costs (as distinct from fees) if they lost. The Office itself stipulated that the Dalkon Shield information was not false or deceptive and that the drawing was accurate.

The Board of Commissioners found violations on all counts (on the drunk-driving advertisement it found deception on a different theory: failure to mention plea bargaining). The Supreme Court of Ohio adopted those findings, rejected the First Amendment defence, and publicly reprimanded him. He appealed to the US Supreme Court.

1. Is a lawyer's newspaper advertisement "commercial speech" protected by the First Amendment?
2. Can a State discipline a lawyer for soliciting business through a truthful, non-deceptive advertisement containing legal advice and information about a specific legal problem?
3. Can a State ban the use of accurate illustrations in lawyers' advertisements?
4. Can a State require a lawyer who advertises contingent-fee work to disclose that clients may be liable for costs even if they lose?
5. Was due process violated because the Board found the drunk-driving advertisement deceptive on a theory different from the one in the complaint?

Affirmed in part and reversed in part. The reprimand stood so far as it rested on the drunk-driving advertisement and on the omission of the costs information; it fell so far as it rested on the illustration and on the legal advice in the Dalkon Shield advertisement.

Commercial speech is protected

The Court said: "There is no longer any room to doubt that what has come to be known as "commercial speech" is entitled to the protection of the First Amendment". A lawyer's advertisement is "advertising pure and simple". The governing test: "Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest."

Advertising is not in-person solicitation

Ohio relied on Ohralik v. Ohio State Bar Assn. (1978), where the Court had upheld discipline for in-person solicitation, describing it as "a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud." The Court held those concerns absent here: "Print advertising may convey information and ideas more or less effectively, but in most cases, it will lack the coercive force of the personal presence of a trained advocate." A printed advertisement "is not likely to involve pressure on the potential client for an immediate yes-or-no answer to the offer of representation."

Litigation is not an evil

The old fear that lawyers will "stir up litigation" did not justify the discipline. The Court said: "That our citizens have access to their civil courts is not an evil to be regretted; rather, it is an attribute of our system of justice in which we ought to take pride." It went on: "The State is not entitled to interfere with that access by denying its citizens accurate information about their legal rights."

The State's argument for a prophylactic rule — that legal advice is too hard to check for accuracy — was rejected as unpersuasive; the appellant's statements "were in fact easily verifiable and completely accurate." The conclusion: "An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of potential clients."

The illustration

Illustrations serve real communicative functions and are protected like words. The State's interest in the dignity of lawyers did not justify a blanket ban; the Court was "unsure that the State's desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights." Because illustrations could be policed case by case, "the prophylactic approach taken by Ohio cannot stand; hence, appellant may not be disciplined for his use of an accurate and nondeceptive illustration."

The costs disclosure — upheld

A duty to disclose is different from a ban. Ohio had only required the lawyer to include "purely factual and uncontroversial information about the terms under which his services will be available." The Court held: "we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." To a layman, "no legal fees" would suggest a lawsuit that cost nothing if lost, since the public is often unaware of the difference between "fees" and "costs". The requirement was valid.

Due process

The Board's different reasoning on the drunk-driving advertisement did not violate due process. Bar discipline in Ohio is for the Ohio Supreme Court; the Board's recommendation put the appellant on notice and he had an opportunity to respond. "The notice and opportunity to respond afforded appellant were sufficient to satisfy the demands of due process."

A lawyer's advertisement is commercial speech. If it is truthful and not deceptive, the State may restrict it only to serve a substantial interest and only by means that directly advance that interest. Truthful printed advertising giving accurate legal information and advice, and accurate illustrations, cannot be punished; the justifications for banning in-person solicitation do not carry over to print. But the State may require factual disclosures reasonably related to preventing deception, such as telling clients they may owe costs even if they lose.

• Comparative question: Should advocates in India be permitted to advertise? Discuss with reference to the position in the United States. Give the Indian bar on advertising, then Zauderer: truthful print advertising protected, in-person solicitation (Ohralik) still bannable, disclosures may be compelled. Close with O'Connor J's "greater obligations" of professionals, which is the Indian view.
• Short note: Zauderer v. Office of Disciplinary Counsel. Facts (drunk-driving ad; Dalkon Shield ad with drawing), the four rulings, and the print-versus-personal-solicitation distinction.
• Key distinction to state in any answer: advertising (information the reader can reflect on) versus solicitation in person (pressure for an immediate yes-or-no answer).