On petition for review of Disciplinary Rule 2-102(A).
For modification -- Chief Justice Wilentz, and Justices Clifford, Pollock and O'Hern. Concurring in part; dissenting in part -- Justices Handler and Garibaldi. The opinion of the Court was delivered by Wilentz, C.J. Handler, J., concurring in part and dissenting in part. Justice Garibaldi joins in this opinion.
The petition in this matter attacks the constitutionality of this Court's most recently adopted regulation of attorney advertising prohibiting "the use of drawings, animations, dramatization, music or lyrics" and requiring that "[a]ll advertisements . . . be presented in a dignified manner." The regulation, adopted in 1984, and now found in our Rules of Professional Conduct (RPC) 7.2(a), provides:
Subject to the requirements of RPC 7.1 [prohibiting false or misleading advertising], a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through mailed written communication. All advertisements shall be presented in a dignified manner without the use of drawings, animations, dramatization, music or lyrics.
We conclude that the public interest would be better served by a revised rule requiring that all attorney advertising be predominantly informational,*fn1 and limiting the present prohibition on the use of "drawings, animations, dramatization, music or lyrics" to television advertising. The requirement of presentation
"in a dignified manner" would be eliminated, but advertisements relying in any way on the shock or amusement value of absurd portrayals wholly irrelevant to the selection of counsel would be prohibited. The unchallenged prohibition against false or misleading advertising would, of course, continue. The new rule, set forth as an appendix to this opinion, will take effect on January 1, 1987.*fn2
Our action is predicated on both policy and federal constitutional*fn3 grounds. The record before us has persuaded us that the total prohibition against "drawings . . ." etc., is unwise; furthermore, at least as applied to print advertising, it is unconstitutional. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1985). We remain concerned, however, with the potential adverse impact of such techniques and especially in television advertising; the recent dismissal by the United States Supreme Court of an attack on similarly broad restrictions on attorney television advertising suggests the constitutionality of these restrictions. See Humphrey v. Committee on Professional Ethics & Conduct, U.S. , 106 S. Ct. 1626, 90 L. Ed. 2d 174 (1986) (mem.), dismissing appeal for want of a substantial federal question from 377 N.W. 2d 643 (Iowa 1985); Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975).
We believe that attorney advertising without any restrictions whatsoever might seriously damage important public interests, but that excessive restriction might harm other public interests equally important. The goal, as we view it, is to strike the proper balance, one that results in the largest net gain for the public. The effort to do so, however, though guided by logic,
necessarily suffers from inexperience; the modern era of attorney advertising, which commenced with Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), is less than a decade old.*fn4 That effort is therefore undertaken with an open mind and a willingness to change as we learn more, as we learn, perhaps, of a better balance.
We believe this conclusion, namely, that today's formulation is tentative and subject to change based on future experience, is as important as the formulation itself. As noted later, we will reconsider the rule after we receive a report on its implementation.
We conclude further that the need to develop expertise, to administer the new rule with some flexibility, to formulate subsidiary rules and regulations, if they seem desirable, to keep the bar and the public informed, to evaluate the impact of our regulations and, if appropriate, to suggest change requires an agency to perform all of these functions, appointed by this Court and integrated into our disciplinary structure. We require this agency to report to us no later than January 1, 1988, concerning the implementation of today's regulation.
For the current generation of lawyers, most of whom have spent the bulk of their careers practicing under a strict prohibition against attorney advertising, it is perhaps easy to forget that that prohibition enjoyed a relatively brief reign in American legal history. Although the English bar's historic disdain for self-promotion took root in this country, many nineteenth century American lawyers advertised their services. See H. Drinker, Legal Ethics 213 (1953); Attanasio, "Lawyer Advertising in England and the United States," 32 Am.J.Comp.L. 493,
502-03 (1984). As late as 1903 the editors of the New Jersey Law Journal, commenting on the increase in the publication of legal cards in newspapers, confessed "our inability to see wherein it is not wholly proper." Editorial Note, 26 N.J.L.J. 35 (Feb.1903).
A leading commentator of the time was in accord, see G. Warvelle, Essays in Legal Ethics 60-61 (1902), but as the influence of the organized bar grew, demands for greater professionalism increased and attitudes toward attorney advertising changed. In 1908, the American Bar Association adopted the Canons of Professional Responsibility. Canon 27 condemned as "unprofessional" solicitation of business by advertising.
The Canons of Professional Responsibility, including Canon 27, were incorporated into the law of this state with our adoption of the rules governing the courts of New Jersey in 1948. Our belief in the wisdom of the prohibition against attorney advertising was firm. Attorney advertising, we declared, "would not be in the public interest. The least capable lawyers would be apt to announce the most extravagant claims and then resort to the worst means to make them good." In re Braun, 61 N.J. 119, 122 (1972); see also In re Rothman, 12 N.J. 528, 542 (1953) ("If competitive advertising among lawyers were permitted, the conscientious ethical practitioner would be inescapably at the mercy of the braggart.").
In 1971 we replaced the Canons with the Code of Professional Responsibility. The advertising ban continued in DR 2-101(A), (B), until, six years later, the United States Supreme Court handed down its decision in Bates. Following that decision, we amended our disciplinary rules to allow advertising, in print only, of fees charged for routine services. See 103 N.J.L.J. 121 (Feb. 3, 1979).
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 national law firm Jacoby & Meyers challenged
our rule prohibiting use of a firm name in this state unless all named members are or were admitted to the New Jersey bar. In considering this challenge, we noted the connection between that issue and our prohibition against television advertising: if Jacoby & Meyers' firm name could be used in New Jersey, the firm would obtain, indirectly but undeniably, an advantage over its New Jersey rivals arising out of its advertising in the New York televison market. Id. at 83. We therefore referred both the ban on television advertising (DR 2-101(D)) along with the firm name restriction to a special committee for study and recommendations. Id. at 79. The responsibility of that committee, the Supreme Court Committee on Attorney Advertising, was thereafter expanded to include a study of all of the rules concerning lawyer advertising, including printed advertisements and mailings.
That Committee's report (published as a supplement in the New Jersey Law Journal of May 5, 1983), in addition to recommending repeal of the ban on radio and television advertising, took the position that the only restriction on attorney advertising should be that it not be false or misleading. Report of the Supreme Court Comm. on Attorney Advertising, reprinted in Supplement, N.J.L.J., May 5, 1983, at 3. A minority of the Committee concluded that, in addition to truthfulness, all attorney advertising should be dignified and that music, animations, dramatizations, etc., should be prohibited. Id. at 16-18.*fn5
We agreed with the Attorney Advertising Committee's recommendation to repeal the radio and television ban. We accepted
the Committee's minority report, however, with respect to adopting a dignity requirement and banning drawings, animations, dramatizations, music or lyrics. We amended our disciplinary rules to reflect these recommendations. See N.J.L.J., Jan. 26, 1984, at 15.
Shortly after our adoption of the new advertising standards, which we later incorporated into our Rules of Professional Conduct,*fn6 petitioner filed an action in federal district court challenging the constitutionality of the restrictions at issue in this case. Felmeister et al. v. Office of Attorney Ethics, Civil No. 84-568 (D.N.J. filed Feb. 9, 1984). Upon being advised that our Court would entertain a direct petition to the same effect, that court abstained from further proceedings pending our review. On March 20, 1984, petitioner filed the instant action directly with this Court,*fn7 and we thereafter remanded the matter to the trial court for the purpose of developing a fuller record.
The parties before the trial court on that remand were petitioner, the Attorney General (acting as proponent of RPC
7.2(a)), and the New Jersey State Bar Association, which was given permission to intervene. Numerous exhibits were introduced, including many forms of advertisements in all media and of all kinds. Both the State and petitioner produced experts. The president of the State Bar Association testified, supporting the validity of the rule and its restrictions but contending that the rule should not be held applicable to advertising conducted by bar associations.
After considering the testimony presented, the trial court submitted its Report and Recommended Findings of Fact. The trial court found that the prohibition of "drawings, animations, dramatizations, music or lyrics" in attorney advertising did not pass constitutional muster under the United States Supreme Court's attorney advertising decisions. The factual finding underlying that conclusion was that such techniques, while they may be factually deceptive, are not inherently so. The trial court found what the record overwhelmingly supports, namely that the use of these techniques "are only inherently misleading in the sense . . . [of] inducing action more on the basis of emotion than rational thought." The trial court explicitly determined that, despite this emotional aspect of these techniques, their prohibition would "preclude the effective use of legal services advertising and constitute more extensive regulation than necessary to serve the governmental interests in precluding false, misleading, and undignified advertising." Prohibiting these techniques would result in "tombstone" ads that would not "accomplish the intended purposes of attention-getting, recall assistance (memory storage), and supplying substantive legal services information to the public."
At the same time, the trial court stressed that its factual finding assumed not only that ads would be required to be truthful and not misleading, but also that the requirement that ads be presented in a dignified manner would be maintained. Clearly concerned with the irrational aspect of creative advertising, the trial court also noted that "careful monitoring and
measurement of the effect on the public of the use of the techniques is obviously necessary and desirable."*fn8
The trial court also found that the requirement that attorney advertising be presented in a "dignified manner" was a reasonable "time, place and manner" restriction. Its additional discussion makes it clear that its finding was based on this Court's responsibility to assure "public confidence in the legal profession and the administration of justice." The trial court dismissed the contention that determination of "dignity" is impermissibly subjective, noting that such a restriction has never been held unconstitutional, that a number of courts have found it to be "workable," and that sixteen other jurisdictions include it in their attorney advertising rules.
There are various public interests involved in attorney advertising and its regulation. The record before us, combined with our own knowledge, leads to the conclusions set forth in this section.
The public would be well served by more information about the legal system in order to know its legal rights and to help it choose a lawyer to enforce those rights. In no small part because of the prior longstanding prohibition against attorney advertising, a substantial portion of the public is ill-informed about its rights, fearful about going to an attorney, and ignorant concerning how to choose one. Attorney advertising is perhaps the best way to meet these needs. See generally Note,
"Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available," 81 Yale L.J. 1181 (1972).
We also conclude that the public would be better served if it could obtain legal services at a lower price.*fn9 Again, attorney advertising is one of the best ways to foster price competition. See generally Report of the Staff to the Federal Trade Commission, Improving Consumer Access to Legal Services: The Case for Removing Restrictions on Truthful Advertising (1984) (FTC Report).
These twin goals, informing the public and making legal services affordable, are important not only because they increase access to and lower the price of a professional service. A legal system that leaves its citizens ignorant of their rights and how to enforce them, or that puts the price of legal services beyond the reach of a substantial portion of its citizens, fails in securing one of society's most fundamental values: the attainment of justice. All members of society, not just the direct recipients and users of the messages, benefit from attorney advertising.
Attorney advertising restricted to a factual recitation (in print, by voice or image) of the need for legal services, the qualifications of the attorney, and the prices offered might fail to achieve these goals. The record suggests, and the trial court found, in effect, that few would listen. Because of that, attorneys might not compete: they simply would not advertise. We note that despite this observation, there are advertisements running in New Jersey papers regularly, and substantially complying with our present severe restrictions. Presumably
the attorneys running these ads feel that they are beneficial, that people are listening. What seems to us more significant is that so few are advertising. In any event, our review of advertising on the record before us demonstrates that advertisements can be devised that provide substantial information, that have the added virtue of being interesting, and that seem to pose minimal risks to the interests mentioned hereafter. The problem is preventing that virtue -- the ability of the ad to attract and hold the attention of the consumer -- from becoming a vice.
In contrast to the kind of purely informational ad described above, when an ad persuades the consumer to select a particular lawyer for reasons that have absolutely nothing to do with those qualities that are rationally related to the lawyer's competence, it may be interesting, but it performs a public dis service. Not only does it fail to perform the function of educating the consumer about the factors that reason tells us should be considered in making that choice, it affirmatively injects other factors into the process. The record is clear on this score. An ad, for instance, that consists practically entirely of a dramatization of an automobile accident, adding only the attorney's name, his willingness to take the case, and the possible right to get damages, provides the consumer with only one reason to select that lawyer -- he is willing to take the case. None of the qualities that, rationally, should be considered is mentioned. The consumer goes to that lawyer because he picked a good public relations firm, and for no other reason. Such advertising does not serve the public good. In this respect, we differ with the trial court, whose conclusion -- to impose no limit on these emotional factors except that they be presented in a "dignified" manner -- implies that their value in making ads effective requires that they be permitted without restriction. The most important factor, the competence of the attorney, would be left to chance; the public might more and more consider the selection of lawyers with less and less rationality; and lawyers themselves might come to regard success as depending not on
their qualifications or performance as attorneys but on their ability to choose the most effective advertising agency.
Moreover, attorney advertising raises the understandable and realistic concern that the legal profession will degenerate into just another trade. Experts are not needed to tell us that competitive pressures would prompt attorney advertising, if unrestricted, to become more and more "effective," meaning less rational and more emotional. The concern is that as the public comes to view the profession as a trade, the profession will conform to its advertised image, and those characteristics of the profession important to society will be hurt. Willingness to perform public service, to do pro bono work, to represent the unpopular cause without charge, to assure justice to an accused, along with the more general qualities of honesty, candor and fairness: these are some of those professional characteristics important to society that might be affected. In their place we might find the morality and goals of the marketplace.
As noted above, however, advertising, to be effective, must attract and hold the consumer's attention. But the techniques that make ads effective are largely, as the word is used here, irrational. So while irrational selection of counsel is not in the best interest of the consumer, or of the legal profession, or of society, some balance must be achieved to minimize the risks of these irrational techniques while obtaining their benefit.
In determining the appropriate balance, we must also bear in mind the fundamental difficulty in assuring accuracy in advertising when the quality of legal services is discussed. Just as the performance of an automobile should be the most important factor in a car buyer's choice, so the performance of attorneys, the quality of the services they can render, should be of principal importance to a person seeking legal help. Yet the fact is that, to a significant extent, attorneys may not advertise the quality of their services. See RPC 7.1 (ad may not "create an unjustified expectation about results the lawyer can achieve" or "compar[e] the lawyer's service with other lawyers'
services") and Comment to RPC 7.1 (Rule "would ordinarily preclude advertisements about results obtained on behalf of the client"). While the facts permitted in attorney advertising (length of experience in handling such matters, law school attended, number of years at the bar, publications, list of clients) are certainly relevant to a determination of the attorney's competence, they may very well add up to the wrong conclusion. The experienced attorney who has handled these matters for many years may be less capable than the new attorney. The kind of information a sophisticated client wants -- and gets -- centers on the attorney's reputation: how he is regarded by his peers, how other attorneys whom the client already knows assess his ability, what his clients think of him, etc. Because of the inordinate difficulty of assuring the accuracy of such information, its advertisement may be prohibited. Yet it is the most important information a consumer would need. That which is permitted, on the other hand, may tell very little on which one should rely.*fn10
This inability to assure that advertisements include the really significant information about attorney competence makes it that much more important to control irrational factors in attorney advertising. The problem of insuring that consumers receive helpful information about legal services is only exacerbated
when the admittedly inconclusive nature of much of the information is compounded by emotional, non-rational appeals that have absolutely nothing to do with the attorney's qualifications.
We have therefore opted for a regulation that allows a minimum amount of non-rational content, enough to attract attention and create interest. Our regulation would require that the advertisement be "predominantly informational," i.e., that in both quantity and quality, the communication of factual information rationally related to the need for and selection of an attorney predominates. A radio ad dramatizing an automobile accident, say, for fifteen seconds, followed by fifteen seconds telling the consumer that he may have a legal right to recover damages for his injuries and that Mr. Smith is willing to handle the case, would not comply. The dramatization (although related to the need for any attorney, when linked with the final message) is not predominantly informative. Half of the advertisement is devoted exclusively to attracting the listener's attention and interest while conveying virtually no factual information related to the need for or competence of counsel. On the other hand, an ad that commenced with a depiction of an automobile accident or otherwise very briefly dramatized the need for a lawyer would comply if that were but a small part of the entire ad, both in quantity and quality -- in other words, if it were but a minor part of an otherwise rational appeal, the balance of the ad describing the firm, its experience, its availability, its fees, its clients, etc.
In this connection we note that the most common form of print advertising by attorneys simply states the kinds of cases the firm handles and the fact that initial consultations are free. Often added is the fact that for a particular kind of occurrence, the consumer may have a right to damages. Such an ad would comply fully with our regulation. It is completely informational and contains no non-rational aspect whatsoever. Given the limited scope of our certification of attorney expertise and the limitations on advertising of quality, lawyers may see little
alternative to the unadorned statement that, e.g., they handle personal injury claims. In fact, much more is permitted. The Comment to RPC 7.2 provides:
This Rule permits public dissemination of information concerning a lawyer's name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented and other information that might invite the attention of those seeking legal assistance. [Emphasis supplied.]
A knowledgeable consumer would want much more information than the field of practice and the availability of a "free consultation" before giving any serious consideration to the firm, since such an ad provides really nothing relevant to the wisdom of selecting it except the fact that it will accept and desires such kind of work. The point here is that the ad does not become "non-informational" or "irrational" simply because it lacks significant information. As noted below, the Committee will be empowered to require the inclusion of more information if, on balance, it deems that wise.
Despite the foregoing, we have decided to continue more substantial restrictions on television advertising. There is no doubt that the potential impact of irrational factors is greatest in that medium. See Matter of Felmeister, 95 N.J. 431, 440-41 (1984). Furthermore, the group that has the least access to informed sources on attorney skills and might rely most heavily on television for information, the less-affluent, less-educated public, is the most vulnerable to this kind of ad. The other side of the coin is that such restrictions will impair the effectiveness of the ad and perhaps thereby reduce some of the benefit that attorney advertising might have for this income group, whose needs for information about legal services are greater than those of other groups. We continue the restriction in the case of television advertising subject to the future evaluation provided for in this opinion. We will learn in time through our experience (in dramatizations on radio, for example) about the effectiveness and ineffectiveness of attorney advertising with
and without emotional appeal, as well as their potential for harm. Our conclusion is ultimately based upon the belief that the risk may be substantial and that our duty is to protect the public against it. We believe that whatever loss there may be in effectiveness is worth the ...