Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio

Topic: AutomotiveCommercial
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Last updated: February 22, 2019

In the history of Constitutional law, the First Amendment has been severally challenged.

Through the various cases challenging the provision, the rights that have been provided continued to expand and at the same time, encompass other rights not expressly provided in the Constitution. Specifically, the right to speech and press has been a subject of Constitutional challenge since the First Amendment was ratified. Various conflicts of interests of the government against the state’s interests have been repeatedly heard by the courts. However, questions keep on developing through the acts of the people and the government. It is noteworthy that the right to speech and of press protects advertisements. However, advertisements made by legal professionals have been proscribed by state laws because of the ethical reasons involved. The conflict of different interests is prevalent in this case. Hence, this paper wishes to clarify the Constitutional violation that a lawyer may be committing when advertising his legal services.

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In resolving the issue, the case of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio[1] will be used. Furthermore this research desires to clarify the ethical issues in the practice of legal profession in relation to solicitation.

BodyIn the practice of legal profession, lawyers are bound to comply with the legal code of ethics. One of the important prohibitions in under several states is the act of solicitations. Meanwhile, legal solicitation refers to the “active seeking out of prospective clients.”[2] By ethical reasons, lawyers are proscribed from advertising their services that has the effect of inciting potential clients.

This was contained in the Ohio’s law. Meanwhile, such proscription may have also been viewed as a violation of the rights guaranteed by the First Amendment.In the case of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, Philip Zauderer advertised in a newspaper.

[3] The advertisement contained information about legal representation of drunk drivers and further states, among others, “full legal fee refunded if convicted of Drunk Driving.”[4] Another advertisement was posted offering legal assistance for women who were victims of the complications caused by the use of a contraceptive known as the Dalkon Shield Intrauterine Device.[5] Through the advertisement, Zauderer was able to file ninety-five lawsuits and collected more than $2 million for his clients.[6] Apart from that, Zauderer did charged his clients on contingent basis wherein a fee will only be collected when the case wins.

Thereafter, the Disciplinary Counsel of the Supreme Court of Ohio sued Zauderer alleging that various Disciplinary Rules of the Ohio Code of Professional Responsibility provisions have been violated by the advertisements.[7] In particular, the advertisement on drunken driving was deceptive because the prohibited contingent fee representation in criminal cases is violated.[8] Apart from that, the Dalkon Shield advertisement is a violation of rules on the use of illustrations in advertisements and it has the effect of legal employment solicitation.[9] In addition, it was also alleged that the non-disclosure of the fact that clients would still pay the fee despite losing the case is deceptive.

Hence, the content of the advertisements should be restricted. On the part of Zauderer, such rules of Ohio violated his constitutional right as guaranteed by First Amendment.In deciding the case, the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court held that the advertisement on drunk driving might be deceptive because there was no inclusion of the plea bargaining wherein the defendant may possibly be convicted for a lesser offence.[10] As a result, disciplinary action and public reprimand were bestowed upon Zauderer.On appeal, the issue involved in the Supreme Court was whether disciplinary action against a lawyer advertising about his legal service a violation of the latter’s First Amendment. In resolving the issue, the Supreme Court primarily held that the advertisement is a part of commercial speech that is protected by the right of speech.[11] Notably, advertisement of legal service by lawyers is also permitted provided that it contains legal advice and truthful information.

[12] With regard to restricting speeches even if it is not false, deceptive, and involve unlawful activities, the government must prove that such speech demonstrates harm and that such harm will be alleviated when it is restricted.[13] In addition, it must be proven that the interest has been directly advanced by the means used. Hence, the reprimand cannot stand. In line with this, it was held in the case of Ohralik v. Ohio State Bar Association that statements that are neither deceptive nor false cannot be banned when there is no sufficient proof that government interest has been curtailed.[14]Remarkably, the Supreme Court did not support the law of Ohio banning the illustrations in the Dalkon Shield advertisement.

According to the Court, illustration used in the advertisement was “accurate means of representation”.[15] In addition, the reason of preserving the dignity of legal profession is not adequate to justify the restriction of advertisement. Furthermore, the allegations of the respondent that such advertisement would mislead, manipulate, or confuse the public do not suffice ground for restriction.

More importantly, the Court held that the reprimand on the ground of using illustration and offering legal advice is a violation of Zauderer’s right covered by the First Amendment.With regard to failure to disclose information that litigation cost will be paid by client if the suit was unsuccessful, the Supreme Court decided that such does not violate the First Amendment.[16] However, the contingency disclosure requirement has been uphold because the state’s interest has been sufficiently found to be affected. As a whole, the restriction on lawyer’s advertisement of their legal service is unconstitutional.

Through the Court’s decision in the case, the problem as to the right to advertise and solicit for legal business of the lawyers have been significantly been addressed. The Zauderer case has affirmed that lawyers may advertise for legal service. However, the permission to do such was based on the reason that the public or prospective clients have the right to be informed of the legal services available.[17] However, though it was allowed to advertise, the information should be truthful and not deceptive.

Laws restricting such advertisement without supporting it with sufficient grounds cannot stand against the right to speech protected by the First Amendment.ConclusionIn the practice of legal profession, lawyers are bound to comply with the professional ethical standards. One of which includes the prohibition of solicitation as contained in some states’ codes or laws. However, such ethical requirement does not suffice to prohibit lawyers from advertising their legal service on particular case because advertisements were considered as a commercial speech protected by the First Amendment. In the case of Zauderer, this was reiterated and clarified. The court further established that the advertisement was for the purpose of providing the public of their right to information with regard to legal services being offered. In addition, it order that advertisement be protected by the First Amendment, it should not be deceptive, misleading, and false.

More importantly, the advertisements used by lawyers are forms of solicitation that is permitted. 

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