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                                         107 N.J.L.J. 10
                                        January 1, 1981



Appointed by the New Jersey Supreme Court


Advertising - In Various Forms

    The inquirer poses questions of appropriateness of various forms of advertising by lawyers since the decision of the U.S. Supreme Court in Bates v. State Bar Association of Arizona, 433 U.S. 350, 53 L. Ed.2d, 810 (1977). While the Court there upheld the First Amendment right of lawyers to advertise their services, it went on to declare that such advertising must not be false, deceptive or misleading and if it is, it may be restrained. It said at page 836:
    ..."as with other varieties of speech, it follows as well that there may be reasonable restrictions on the time, place and manner of advertising." (Emphasis added)

See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 778, 48 L. Ed.2d., 346 (1976).
    A more recent discussion of the subject is found in Ohralik v. Ohio State Bar Association, 436 U.S. 447, 56 L. Ed.2d., 444 (1978). In Ohralik, the question was one of direct solicitation rather than by mail. At page 456 of Ohralik, the Court referred to the fact that truthful restrained advertising of the prices of "routine" legal services would not have an adverse effect on the professionalism of lawyers. It is clear, therefore, that the courts of the respective states which control the conduct of lawyers were not stripped of their authority reasonably to regulate advertising. See, also, In re Primus, 436 U.S. 412, 56 L. Ed.2d., 417 (1977), and Kentucky Bar Association v. Stuart, 568 S.W.2d., 933 (KY. Sup. Ct. 1978)
    The question of solicitation in person or by mail or other media is subject to regulation but such regulation must be reasonable. As was stated in Ohralik, the State has a legitimate and important interest in protecting the public from those aspects of an attorney's soliciting of clients that involve fraud, undue influence, intimidation, overreaching and other forms of vexatious conduct.
    In this inquiry, several forms of solicitation are brought to our attention. One is a sample of several different letters directed by lawyers to realtors, industrial concerns and other corporations stating that they are interested in serving them, listing the services to be performed and the charges to be made. Another is a printed publication by a lawyer setting forth his billing charges, how he bills, his educational background and his bar association memberships. There is also an advertisement by a lawyer in a supermarket coupon book, distributed at the supermarket, in which his name appears on a page where all the other ads are for merchandise discounts. The lawyer has his name, address and lists his fees for various legal services.
    The idea of soliciting clients through advertising was for years denounced by bar associations as being unprofessional, unethical and detrimental to the best interests of the profession. In Bates, however, as we have noted above, some reasonable forms of solicitation by advertising are permitted. Parameters of permissible advertising have not yet been established except in general terms as set forth in the various decisions of the Supreme Court. In Mr. Justice Marshall's concurring opinion in Ohralik, he stated, at page 466:
        By discussing the origin and impact of the nonsolicitation rules, I do not mean to belittle those obviously substantial interests that the State has in regulating attorney to protect the public from fraud, deceit, misrepresentation, overreaching, undue influence and invasions of privacy. But where honest, unpressed 'commercial' solicitation is involved - a situation not presented in either of these cases - I believe it is open to doubt whether the State's interests are sufficiently compelling to warrant the restriction on the free flow of information which results from a sweeping nonsolicitation rule and against which the First Amendment ordinarily protects.

The opinion pointed out that the Department of Justice had suggested that the disciplinary rules be reworded "so as to permit all solicitations and advertising except the kinds that are false, misleading, undignified and champertous."
    We do not believe that simple letters by attorneys advertising the availability of their services addressed generally to a segment of the population with which the lawyers have no personal acquaintance are now proscribed where they are not false, misleading, undignified or champertous to use the words of the Department of Justice. See Opinion 457, 106 N.J.L.J. 98 (1980).

    It is our opinion, however, that the ad in the supermarket throw-away on the page with merchandise discount coupons is undignified and, perhaps, misleading in the sense that people may believe the quoted fees to be discounted fees. It is therefore unethical and should be discontinued.
    While a number of other specific hypothetical questions or situations have been posed in the inquiry, we believe it advisable at this stage of the development of the law to address specific problems as they arise and to refrain from trying to answer general hypothetical questions.

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