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In re Felmeister

Decided: February 29, 1984.


On leave to appeal from the District VII Ethics Committee.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Pollock, O'Hern and Garibaldi. Dissenting -- Justice Handler. The opinion of the Court was delivered by Schreiber, J. Handler, J., dissenting.


[95 NJ Page 432] This attorney disciplinary proceeding comes before us on respondents' motion to dismiss the charges on the ground that the Disciplinary Rule barring broadcast advertising, DR 2-101(D), is unconstitutional. Respondents concede that they intentionally violated DR 2-101(D) by radio advertisements, though fully cognizant that at that time we were reviewing the Rule and considering amendments to it. They contend that irrespective of our ongoing proceedings, their violations are of no consequence. We reject this contention and deny their motion.

Procedurally this matter commenced when the Division of Ethics and Professional Services filed with the District VII Ethics Committee two complaints alleging violations of DR 2-101(D), DR 1-102(A)(1) and (6), each naming one respondent. In accordance with R. 1:20-4(d), (i), both respondents, members of the New Jersey bar, moved for leave to seek interlocutory review of their constitutional challenges to the proceedings pending before the District Ethics Committee. We granted the motions and set the matters down for oral argument. We denied the respondents' motions for summary disposition and now consider their motions to dismiss.

Under these circumstances we assume that the facts alleged in the complaints are true. These complaints disclose the following: Respondents Felmeister and Isaacs, who were admitted to the bar in 1978 and 1980, respectively, are partners in a law practice in Princeton Junction. On November 4, 1982, they wrote to the Supreme Court's Advisory Committee on Professional Ethics (Advisory Committee) advising the Committee that DR 2-101(D),*fn1 "which creates a blanket ban on radio and television advertising by lawyers," was unconstitutional and that they had "scheduled radio advertisements of our services to commence on December 6, 1982." The letter concluded with the following paragraph:

It is our feeling that any efforts to restrain our use of radio as a medium for advertising our services would be violative of the state and federal constitutions. However, we invite your opinion as to the correctness of our position on the issue of broadcast media advertising by lawyers. If you wish to discuss this matter,

please feel free to contact us. Your comments or other action will be expected, if at all, before December 1, 1982.

The Division of Ethics and Professional Services (Division) responded in a letter dated November 9, 1982 that the Committee would not be acting on inquiries relating to attorney advertising until the Supreme Court Committee on Attorney Advertising (Advertising Committee) has reported to the Supreme Court. The Advertising Committee had been appointed in July, 1982 to evaluate and make recommendations to the Court on appropriate rules and guidelines to govern advertising by attorneys in this state. One of three specific areas that the Advertising Committee was directed to explore was the continued prohibition on radio and television advertising.*fn2 Respondents were advised that their letter was being forwarded to the Advertising Committee.

The Division's letter also referred to this Court's opinion in In re Professional Ethics Advisory Comm. Opinion 475, 89 N.J. 74, app. dism. sub nom. Jacoby & Meyers v. Supreme Court of New Jersey, 459 U.S. 962, 103 S. Ct. 285, 74 L. Ed. 2d 272 (1982). The issue in that case was the ban on the use of firm names that included the names of persons who were not members of the New Jersey bar. DR 2-102(C). In that opinion we acknowledged a related issue concerning television advertising and stated that the Rule banning radio and television advertising should be explored in "a full hearing on all points of view and an in-depth investigation of the underlying interests" would be undertaken. 89 N.J. at 96. The Advertising Committee was created following Opinion 475.

The Advertising Committee arranged for respondents to appear before it on November 18, 1982 during public hearings.

Neither respondent appeared. Instead, on November 24, 1982, respondents wrote to the Division that given the Advisory Committee's decision to refuse to answer inquiries concerning the radio ban on advertising, the respondents had decided to go forward with the radio advertisements. On December 6 and 7, 1982, respondents sponsored five radio broadcasts advertising the services of their law firm, and by their own admission intentionally and willfully violated the Supreme Court's Disciplinary Rule. Immediately thereafter the Division prepared and filed the complaints. Upon receipt of the complaints, respondents suspended their commercial broadcasts.

Each complaint contained three counts. The first charged the defendants with a willful and deliberate violation of the ban on radio advertising and with violations of DR 2-101(D), DR 1-102(A)(1) and (6). The second claimed that defendants scheduled advertisements throughout December, 1982, including December 8, 9 and 12, and that the scheduling constituted a willful and deliberate violation of the same Disciplinary Rules. The third count asserted that the intentional action to proceed with the radio advertising in the face of this Court's explicit warning was contemptuous of the Supreme Court's rulemaking and decisional authority in violation of DR 1-102(A)(1), (5) and (6).


Respondents' precipitous action is probably due in no small part to their misunderstanding of the nature of the first amendment's applicability to an attorney's right to advertise. Relying upon Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), they claim that the loss of first amendment freedoms for even minimal periods of time constitutes irreparable injury and is impermissible. Such reliance is misplaced. Elrod v. Burns concerned the protection of political expression, and the Supreme Court, in holding that a preliminary injunction was warranted, referred to the importance of the "timeliness of political speech." Id. at 374 n. 29, 96 S. Ct. at 2690 n. 29, 49 L. Ed. 2d at 566

n. 29. However, commercial speech is subject to different restraints and restrictions. The first amendment protection attributable to commercial speech is founded essentially on the public's right to be informed, and, in the case of attorney advertising, to be informed of the availability, nature and prices of legal services. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977). Regulation of commercial speech with respect to its content, quality, time, place and manner is permissible.

Justice Pashman in In re Professional Ethics Advisory Comm. Opinion 475, supra, 89 N.J. at 83-84, summed up the difference between political and commercial speech as follows:

[T]he Supreme Court has never equated commercial speech with political expression. Our society values political expression as an inherent part of the democratic process. Commercial speech, in contrast, is valued and constitutionally protected only to the extent that it conveys facts which facilitate honest commercial transactions. With that in mind, both the U.S. Supreme Court and this Court have said "there can be no constitutional objection to the suppression of commercial messages . . . more likely to deceive the public than inform it." In re Professional Ethics Opinion 447, 86 N.J. 473, 477 (1981), quoting Central Hudson Gas v. Public Service Comm'n, 447 U.S. 557, 563, 100 S. Ct. 2343, 2350, 65 L. Ed. 2d 341 (1980). Moreover, "a different degree of protection is necessary to insure that the flow of the truthful and legitimate commercial information is unimpaired." Virginia Pharmacy, 425 U.S. at 771, n. 24, 95 S. Ct. at 1830, n. 24.

It was not until Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976), that commercial speech was clearly placed under the umbrella of the first amendment. In Virginia Pharmacy, the Supreme Court struck down a statute prohibiting the advertising of prescription drugs. The Court held that the linchpin of the first amendment rationale was the consumer's interest in the dissemination of information so that his economic decision could be intelligent and well informed. "To this end, the free flow of commercial information is indispensable." Id. at 765, 96 S. Ct. at 1827, 48 L. Ed. 2d at 360. Untruthful, deceptive or misleading statements were not protected. Commercial information

was to flow cleanly as well as freely. Id. at 771-72, 96 S. Ct. at 1830-31, 48 L. Ed. 2d at 364-65.

The majority opinion in Virginia Pharmacy cautioned that:

[A]lthough we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising. [ Id. at 773 n. 25, 96 S. Ct. at 1831 n. 25, 48 L. Ed. 2d at 365 n. 25.]

The development of the law with respect to attorney advertising commenced only recently and the Supreme Court has been gradually filling in the interstices in this field. In 1977 the Supreme Court was faced in Bates v. State Bar of Arizona, supra, with the question of the validity of an Arizona Supreme Court rule that banned newspaper advertising by members of the bar. The heart of the dispute was whether lawyers may constitutionally advertise the prices at which certain routine services would be performed. The Court answered the question in the affirmative. Bates, supra, 433 U.S. at 384, 97 S. Ct. at 2709, 57 L. Ed. 2d at 836. Significantly, however, the Court refused to employ the overbreadth doctrine, which permits an attack on overly broad statutes without a showing that the specific conduct of the attacker was protected. The overbreadth doctrine, available in first amendment political speech cases, reflects the policy that it is preferable to permit unprotected speech rather than chill protected speech. Because of the economic nature and durability of commercial speech, the justifications for that policy are not present ...

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