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

Justice Brennan,

with whom Justice Marshall joins, concurring in part, concurring in the judgment in part, and dissenting in part.

I fully agree with the Court that a State may not discipline attorneys who solicit business by publishing newspaper advertisements that contain “truthful and nondeceptive information and advice regarding the legal rights of potential clients” and “accurate and nondeceptive illustration[s].” Ante, at 647, 649. I therefore join Parts I-IV of the Court’s opinion, and I join the Court’s judgment set forth in Part VII to the extent it reverses the Supreme Court of Ohio’s public reprimand of the appellant Philip Q. Zauderer for his violations of Disciplinary Rules 2-101(B), 2-103(A), and 2-104(A).

With some qualifications, I also agree with the conclusion in Part V of the Court’s opinion that a State may impose commercial-advertising disclosure requirements that are “reasonably related to the State’s interest in preventing deception of consumers.” Ante, at 651. I do not agree, however, that the State of Ohio’s vaguely expressed disclosure requirements fully satisfy this standard, and in any event I believe that Ohio’s punishment of Zauderer for his alleged infractions of those requirements violated important due process and First Amendment guarantees. In addition, I believe the manner in which Ohio has punished Zauderer for publishing the “drunk driving” advertisement violated fundamental principles of procedural due process. I therefore concur in part and dissent in part from Part V of the Court’s opinion, dissent from Part VI, and dissent from the judgment set forth in Part VII insofar as it affirms the Supreme Court *657 of Ohio’s public reprimand “based on appellant’s advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Daikon Shield advertisement.” Ante, at 655.

I

A

The Court concludes that the First Amendment’s protection of commercial speech is satisfied so long as a disclosure requirement is “reasonably related” to preventing consumer deception, and it suggests that this standard “might” be violated if a disclosure requirement were “unjustified” or “unduly burdensome.” Ante, at 651. I agree with the Court’s somewhat amorphous “reasonable relationship” inquiry only on the understanding that it comports with the standards more precisely set forth in our previous commercial-speech cases. Under those standards, regulation of commercial speech — whether through an affirmative disclosure requirement or through outright suppression 1 — is “reasonable” only *658 to the extent that a State can demonstrate a legitimate and substantial interest to be achieved by the regulation. In re R. M. J., 455 U. S. 191, 203 (1982); Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 564 (1980). Moreover, the regulation must directly advance the state interest and “may extend only as far as the interest it serves.” Id., at 565 . See also id., at 564 (“[T]he regulatory technique must be in proportion to [the State’s] interest”). Where the State imposes regulations to guard against “the potential for deception and confusion” in commercial speech, those regulations “may be no broader than reasonably necessary to prevent the deception.” In re R. M. J., supra, at 203. See also Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 772, n. 24 (1976) (disclosure requirements are permissible only to the extent they “are necessary to prevent [the advertisement from] being deceptive”); Bates v. State Bar of Arizona, 433 U. S. 350, 384 (1977) (States may require “some limited supplementation ... so as to assure that the consumer is not misled”) (emphasis added). 2

Because of the First Amendment values at stake, courts must exercise careful scrutiny in applying these standards. Thus a State may not rely on “highly speculative” or “tenu *659 ous” arguments in carrying its burden of demonstrating the legitimacy of its commercial-speech regulations. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, supra, at 569. Where a regulation is addressed to allegedly deceptive advertising, the State must instead demonstrate that the advertising either “is inherently likely to deceive” or must muster record evidence showing that “a particular form or method of advertising has in fact been deceptive,” In re R. M. J., supra, at 202, and it must similarly demonstrate that the regulations directly and proportionately remedy the deception. Where States have failed to make such showings, we have repeatedly struck down the challenged regulations. 3

As the Court acknowledges, it is “somewhat difficult” to apply these standards to Ohio’s disclosure requirements “in light of the Ohio court’s failure to specify precisely what disclosures were required.” Ante, at 653, n. 15. It is also somewhat difficult to determine precisely what disclosure requirements the Court approves today. The Supreme Court of Ohio appears to have imposed three overlapping requirements, each of which must be analyzed under the First *660 Amendment standards set forth above. First, the court concluded that “a lawyer advertisement which refers to contingent fees” should indicate whether “additional costs . . . might be assessed the client.” 10 Ohio St. 3d 44, 48 , 461 N. E. 2d 883, 886 (1984). The report of the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court explained that such a requirement is necessary to guard against “the impression that if there were no recovery, the client would owe nothing.” App. to Juris. Statement 14a. I agree with the Court’s conclusion that, given the general public’s unfamiliarity with the distinction between fees and costs, a State may require an advertising attorney to include a costs disclaimer so as to avoid the potential for misunderstanding, ante, at 653 — provided the required disclaimer is “no broader than reasonably necessary to prevent the deception,” In re R. M. J., supra, at 203.

Second, the report and opinion provide that an attorney advertising his availability on a contingent-fee basis must “specifically expres[s]” his rates. 10 Ohio St. 3d, at 48 , 461 N. E. 2d, at 886 ; see also App. to Juris. Statement 14a. The Court’s analysis of this requirement — which the Court characterizes as a “suggestion],” ante, at 653, n. 15 — is limited to the passing observation that the requirement does not “see[m] intrinsically burdensome,” ibid. The question of burden, however, is irrelevant unless the State can first demonstrate that the rate-publication requirement directly and proportionately furthers a “substantial interest.” In re R. M. J., 455 U. S., at 203 . Yet an attorney’s failure to specify a particular percentage rate when advertising that he accepts cases on a contingent-fee basis can in no way be said to be “inherently likely to deceive,” id., at 202 , and the voluminous record in this case fails to reveal a single instance suggesting that such a failure has in actual experience proved deceptive. 4 Nor has Ohio at any point identified any other *661 “substantial interest” that would be served by such a requirement. Although a State might well be able to demonstrate that rate publication is necessary to prevent deception or to serve some other substantial interest, it must do so pursuant to the carefully structured commercial-speech standards in order to ensure the full evaluation of competing considerations and to guard against impermissible discrimination among different categories of commercial speech. See n. 7, infra. 5 Ohio has made no such demonstration here.

Third, the Supreme Court of Ohio agreed with the Board of Commissioners that Zauderer had acted unethically “by failing fully to disclose the terms of the contingent fee arrangement which was intended to be entered into at the time of publishing the advertisement.” 10 Ohio St. 3d, at 47 , 461 *662 N. E. 2d, at 886 (emphasis added); see App. to Juris. Statement 14a, 19a. The record indicates that Zauderer enters into a comprehensive contract with personal injury clients, one that spells out over several pages the various terms and qualifications of the contingent-fee relationship. 6 If Ohio *663 seriously means to require Zauderer “fully to disclose the[se] terms,” this requirement would obviously be so “unduly burdensome” as to violate the First Amendment. Ante, at 651. Such a requirement, compelling the publication of detailed fee information that would fill far more space than the advertisement itself, would chill the publication of protected commercial speech and would be entirely out of proportion *664 to the State’s legitimate interest in preventing potential deception. See In re R. M. J., 455 U. S., at 203 ; Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S., at 564 ; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772, n. 24 . Given the Court’s explicit endorsement of Ohio’s other disclosure provisions, I can only read the Court’s telling silence respecting this apparent requirement as an implicit acknowledgment that it could not possibly pass constitutional muster. 7

B

Ohio’s glaring failure “to specify precisely what disclosures were required,” ante, at 653, n. 15, is relevant in another important respect. Even if a State may impose particular disclosure requirements, an advertiser may not be punished for failing to include such disclosures “unless his failure is in violation of valid state statutory or decisional law requiring the [advertiser] to label or take other precautions to prevent confusion of customers.” Compco Corp. v. Day-Brite Lighting, Inc., 376 U. S. 234, 238-239 (1964). Whether or not Ohio may properly impose the disclosure requirements discussed above, it failed to provide Zauderer with sufficient notice that he was expected to include such disclosures in his Daikon Shield advertisement. The State’s punishment of Zauderer therefore violated basic due process and First Amendment guarantees.

*665 Neither the published rules, state authorities, nor governing precedents put Zauderer on notice of what he was required to include in the advertisement. As the Court acknowledges, Ohio’s Disciplinary Rules do not “on [their] face require any disclosures except when an advertisement mentions contingent-fee rates — which appellant’s advertisement did not do.” Ante, at 653, n. 15. In light of the ambiguity of the rules, Zauderer contacted the governing authorities before publishing the advertisement and unsuccessfully sought to determine whether it would be ethically objectionable. He met with representatives of the Office of Disciplinary Counsel, reviewed the advertisement with them, and asked whether the Office had any objections or recommendations concerning the form or content of the advertisement. The Office refused to advise Zauderer whether “he should or should not publish the advertisement,” informing him that it “does not have authority to issue advisory opinions nor to approve or disapprove legal service advertisements.” Stipulation of Fact Between Relator and Respondent ¶¶22, 27, App. 16. And even after full disciplinary proceedings, Ohio still has failed, as the Court acknowledges, “to specify precisely what disclosures were required,” and therefore to specify precisely how Zauderer violated the law and what reasonable precautions he can take to avoid future disciplinary actions. Ante, at 653, n. 15.

A regulation that “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Construction Co., 269 U. S. 385, 391 (1926). The Fourteenth Amendment’s Due Process Clause “insist[s] that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972). This requirement “applies with particular force in review of laws dealing with speech,” Hynes *666 v. Mayor of Oradell, 425 U. S. 610, 620 (1976); “a man may be the less required to act at his peril here, because the free dissemination of ideas may be the loser,” Smith v. California, 361 U. S. 147, 151 (1959). 8

These guarantees apply fully to attorney disciplinary proceedings. In re Ruffalo, 390 U. S. 544, 550 (1968). Given the traditions of the legal profession and an attorney’s specialized professional training, there is unquestionably some room for enforcement of standards that might be impermissi-bly vague in other contexts; an attorney in many instances may properly be punished for “conduct which all responsible attorneys would recognize as improper for a member of the profession.” Id., at 555 (White, J., concurring in result). 9 But where “[t]he appraisal of [an attorney’s] conduct is one about which reasonable men differ, not one immediately apparent to any scrupulous citizen who confronts the question,” and where the State has not otherwise proscribed the conduct in reasonably clear terms, the Due Process Clause forbids punishment of the attorney for that conduct. Id., at 555-556 . 10

*667 I do not believe that Zauderer’s Daikon Shield advertisement can be said to be so obviously misleading as to justify punishment in the absence of a reasonably clear contemporaneous rule requiring the inclusion of certain disclaimers. The advertisement’s statement that “[i]f there is no recovery, no legal fees are owed by our clients” was accurate on its face, and “[tjhere is nothing in the record to indicate that the inclusion of this information was misleading” in actual practice because of the failure to include a costs disclaimer. In re R. M. J., 455 U. S., at 205-206 . 11 Moreover, although the statement might well be viewed by many attorneys as carrying the potential for deception, the Office of Disciplinary Counsel itself stipulated that “[t]he Daikon Shield advertisement published by [Zauderer] does not contain a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.” Stipulation of Fact Between Relator and Respondent ¶30, App. 17. Several other States have approved the publication of Daikon Shield advertisements containing the identical no-legal-fees statement, without even a suggestion that the statement might be deceptive. 12 *668 And the Office of Disciplinary Counsel’s refusal to respond to Zauderer’s prepublication inquiries concerning the propriety of the advertisement wholly undermines one of the basic justifications for allowing punishment for violations of imprecise commercial regulations — that a businessperson can clarify the meaning of an arguably vague regulation by consulting with government administrators. 13 Although I agree that a State may upon a proper showing require a costs disclaimer as a prophylactic measure to guard against potential deception, see supra, at 660, and may thereafter discipline attorneys who fail to include such disclaimers, Ohio had imposed no such requirement at the time Zauderer published the advertisement, as the Court acknowledges, ante, at 653, n. 15. The State instead has punished Zauderer for violating requirements that did not exist prior to this disciplinary proceeding.

The Court appears to concede these serious problems, noting that “it may well be that for Ohio actually to disbar an attorney on the basis of its disclosure requirements as they have been worked out to this point would raise significant due process concerns.” Ibid, (emphasis added). The Court *669 “see[s] no infirmity” in this case, however, because the Supreme Court of Ohio publicly reprimanded Zauderer rather than disbarring him. Ante, at 654, n. 15. This distinction is thoroughly unconvincing. When an attorney’s constitutional rights have been violated, we have not hesitated in the past to reverse disciplinary sanctions that were even less severe than a public reprimand. 14 Moreover, a public reprimand in Ohio exacts a potentially severe deprivation of liberty and property interests that are fully protected by the Due Process Clause. The reprimand brands Zauderer as an unethical attorney who has violated his solemn oath of office and committed a “willful breach” of the Code of Professional Responsibility, and it has been published in statewide professional journals and the official reports of the Ohio Supreme Court. 15 This Court’s casual indifference to the gravity of this injury inflicted on an attorney’s good name demeans the entire legal profession. 16 In addition, under Ohio law “[a] person who has been . . . publicly reprimanded for misconduct, upon being found guilty of subsequent misconduct, shall be suspended for an indefinite period from the practice of law or permanently disbarred . . . .” Govt. Bar Rule V(7). In light of Ohio’s vague rules, the governing authorities’ refusal to provide clarification and *670 guidance to Zauderer, and the Ohio Supreme Court’s “failure to specify precisely what disclosures [are] required,” ante, at 653, n. 15, Zauderer will hereafter publish advertisements mentioning contingent fees only at his peril. No matter what disclaimers he includes, Ohio may decide after the fact that further information should have been included and might, under the force of its rules, attempt to suspend him indefinitely from his livelihood. Such a potential trap for an unwary attorney acting in good faith not only works a significant due process deprivation, but also imposes an intolerable chill upon the exercise of First Amendment rights. See supra, at 665-666, and n. 8. 17

I — I HH

The Office of Disciplinary Counsel charged that Zauderer’s drunken driving advertisement was deceptive because it proposed a contingent fee in a criminal case — an unlawful arrangement under Ohio law. Amended Complaint ¶¶ 3-7, App. 22-23. Zauderer defended on the ground that the offer of a refund did not constitute a proposed contingent fee. This was the sole issue concerning the drunken driving advertisement that the Office complained of, and the evidence and arguments presented to the Board of Commissioners were limited to this question. The Board, however, did not *671 even mention the contingent-fee issue in its certified report. Instead, it found the advertisement “misleading and deceptive” on the basis of a completely new theory — that as a matter of “general knowledge” as discerned from certain “Municipal Court reports,” drunken driving charges are “in many cases . . . reduced and a plea of guilty or no contest to a lesser included offense is entered and received by the court,” so that in such circumstances “the legal fee would not be refundable.” App. to Juris. Statement 11a. Although Zauderer argued before the Supreme Court of Ohio that this theory had never been advanced by the Office of Disciplinary Counsel, that he had never had any opportunity to object to the propriety of judicial notice or to present opposing evidence, and that there was no evidence connecting him to the alleged practice, the court adopted the Board’s findings without even acknowledging his objections. 10 Ohio St. 3d, at 48 , 461 N. E. 2d, at 886 .

Zauderer of course might not ultimately be able to disprove the Board’s theory. The question before the Court, however, is not one of prediction but one of process. “A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence.” In re Oliver, 333 U. S. 257, 273 (1948). Under the Due Process Clause, “reasonable notice” must include disclosure of “the specific issues [the party] must meet,” In re Gault, 387 U. S. 1, 33-34 (1967) (emphasis added), and appraisal of “the factual material on which the agency relies for decision so that he may rebut it,” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 288, n. 4 (1974). These guarantees apply fully to attorney disciplinary proceedings because, obviously, “lawyers also enjoy first-class citizenship.” Spevack v. Klein, 385 U. S. 511, 516 (1967). Where there is an “absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges,” so that the attorney is not given a meaningful opportunity to present evidence in his defense, the proceed *672 ings violate due process. In re Ruffalo, 390 U. S., at 552 (emphasis added). 18

The Court acknowledges these guarantees, but argues that the Board’s change of theories after the close of evidence was “of little moment” because Zauderer had an opportunity to object to the Board’s certified report before the Supreme Court of Ohio. Ante, at 654. This reasoning is untenable. Although the Supreme Court of Ohio made the ultimate determination concerning discipline, it held no de novo hearing and afforded Zauderer no opportunity to present evidence opposing the Board’s surprise exercise of judicial notice. Under Ohio procedure, the court’s role was instead limited to a record review of the Board’s certified findings to determine whether they were “against the weight of the evidence” or made in violation of legal and procedural guarantees. Cincinnati Bar Assn. v. Fennell, 63 Ohio St. 2d 113, 119 , 406 N. E. 2d 1129, 1133 (1980). 19 All that Zauderer could do was to argue that the Board’s report was grounded on a theory that he had never been notified of and that he never had an opportunity to challenge with evidence of his own, and to request that proper procedures be followed. 20

*673 The court completely ignored these objections. 21 To hold that this sort of procedure constituted a meaningful “chance to be heard in a trial of the issues,” Cole v. Arkansas, 333 U. S. 196, 201 (1948), is to make a mockery of the due process of law that is guaranteed every citizen accused of wrongdoing.

Much of the Court’s reasoning appears to rest on the premise that, in the commercial-speech context, “the First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed.” Ante, at 652, n. 14. I believe the Court greatly overstates the distinction between disclosure and suppression in these circumstances. We have noted in traditional First Amendment cases that an affirmative publication requirement “operates as a command in the same sense as a statute or regulation forbidding [someone] to publish specified matter,” and that “a compulsion to publish that which ‘ “reason” tells [one] should not be published’ ” therefore raises substantial First Amendment concerns. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974). Such compulsion in the advertising context will frequently be permissible, and I agree that the distinction between suppression and disclosure supports some differences in analysis. See n. 2, infra. Nevertheless, disclosure requirements must satisfy the basic tenets of commercial-speech doctrine: they must demonstrably and directly advance substantial state interests, and they may extend no further than “reasonably necessary” to serve those interests. In re R. M. J., 455 U. S. 191, 203 (1982); Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 564-565 (1980).

I agree that Zauderer’s “least restrictive means” analysis is misconceived in the context of commercial-speech disclosure requirements. See ante, at 651-652, n. 14. Zauderer argues that Ohio’s interest in preventing consumer deception could more effectively be achieved through direct regulation of contingent-fee agreements themselves rather than through compelled disclosures in advertising. Brief for Appellant 41-43. As we repeatedly have emphasized, however, States have a substantial interest in ensuring that advertising itself is not misleading, see Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772, and regulation of the underlying substantive conduct does not remove the potential for deception in the body of the advertisement. Beyond this, however, a disclosure requirement is “reasonably related” to truth in advertising only to the extent that it satisfies the standards set forth above in text.

See, e. g., In re R. M. J., supra, at 200, n. 11 (State must justify restriction in light of “experience”); Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, supra, at 570; Bates v. State Bar of Arizona, 433 U. S. 350, 381 (1977); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 95 (1977) (“The record here demonstrates that respondents failed to establish that [their restriction] is needed”); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., supra, at 769 (Commonwealth’s justifications failed on “close inspection”). See also Metromedia, Inc. v. San Diego, 453 U. S. 490, 528 (1981) (Brennan, J., concurring in judgment). In evaluating the necessary form and content of disclosure, courts of course should be guided by the “enlightenment gained from administrative experience,” because regulatory authorities are “often in a better position than are courts to determine” such matters. FTC v. Colgate-Palmolive Co., 380 U. S. 374, 385 (1965); cf. In re R. M. J., supra, at 200, n. 11. Particularly in this First Amendment context, however, such determinations merit deference only to the extent they are supported by evidence and reasoned explanation.

The Office of Disciplinary Counsel introduced no evidence and made no arguments concerning this question, and the Board of Commissioners did *661 not address the issue. The Supreme Court of Ohio referred in passing to rate disclosure as contributing to “purposes of clarity.” 10 Ohio St. 3d 44, 48 , 461 N. E. 2d 883, 886 (1984). But there is nothing in this record to suggest that a simple reference to contingent fees is unclear, and such cursory and “highly speculative” arguments are an unacceptable substitute for the reasoned evaluation that is required when regulating commercial speech. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S., at 569 ; see also Bates v. State Bar of Arizona, supra, at 381.

Ohio’s failure to make such a demonstration is particularly troubling in light of Zauderer’s persuasive argument that it is extremely burdensome— and in fact potentially misleading — to attempt to set forth a particular advertised “rate” for personal injury cases. He argues that his contingent-fee rates — like those of many attorneys — vary substantially depending upon the unique factual and legal needs of a given client and the extent of representation that is necessary to advance the client’s interests. Zauderer’s specific rate information is subject to numerous qualifications and clarifications, all of which are spelled out in a lengthy written contract. See n. 6, infra. It was precisely out of concern that a set “rate” might not accurately encompass the range of potentially required services that some Members of this Court objected to any price disclosure by attorneys in the first instance. See, e. g., Bates v. State Bar of Arizona, 433 U. S., at 386 (Burger, C. J., concurring in part and dissenting in part); id., at 392 (Powell, J., concurring in part and dissenting in part). Our approval of attorney price advertising has previously extended only to those services for which fixed rates can “meaningfully be established.” Id., at 373 .

A representative “Retainer Agreement and Contract of Employment” provides, inter alia:

“TV. ATTORNEY FEES

“l hereby agree to pay P. Q. Z. & A as attorney fees for such representation, which fees are deemed by me to be reasonable:

“Thirty-Three and One-Third Per Cent of the gross amount recovered by way of settlement or compromise prior to trial;

“Forty Per Cent of the gross amount recovered by way of settlement or compromise or judgment if a trial or any part thereof commences, and an appeal is not necessary;

“Forty-Five Per Cent of the gross amount recovered by way of settlement or compromise or judgment if a trial or any part thereof commences, and an appeal is necessary.

“The term ‘gross amount’ shall mean the total amount of money recovered, prior to any deduction for expenses, and shall include any interest awarded or recovered.

“IT IS AGREED AND UNDERSTOOD THAT THIS EMPLOYMENT IS UPON A CONTINGENT FEE BASIS, AND IF NO RECOVERY IS MADE, I WILL NOT BE INDEBTED TO P. Q. Z. & A FOR ANY SUM WHATSOEVER AS ATTORNEY FEES (EXCEPTAS PROVIDED IN SECTION VIII HEREOF.)

“V. COSTS AND OTHER EXPENSES

“I understand and agree that out-of-pocket costs incurred or advanced by P. Q. Z. & A in the course of the investigation or in the handling of any litigation or appeal on my behalf including, but not limited to, court costs, long distance telephone charges, court costs, document duplication costs, brief printing costs, postage, court reporter fees, medical report expenses, witness fees, costs of obtaining evidence, necessary disbursements and reasonable travel expenses incurred by P. Q. Z. & A in advancing my cause, must be borne by me. I, thus, agree to reimburse P. Q. Z. & A for any such necessary out-of-pocket expenses it advances on my behalf.

“VI. EMPLOYMENT OF EXPERTS AND INVESTIGATORS

“P. Q. Z. & A may, in its discretion, employ medical experts or other necessary experts or investigators in connection with my case, after consultation with me.

*663 “I understand that all fees and expenses charged by such experts, including witness fees, are my responsibility, and I agree to reimburse P. Q. Z. & A for any such fees or expenses which it advances or incurs on my behalf.

“VI. ASSOCIATE COUNSEL AND LEGAL ASSISTANTS

“P. Q. Z. & A may, in its discretion, employ associate counsel (including one or more lawyers outside the office of P. Q. Z. & A) and law clerks or legal assistants or paralegals to assist it in representing me. The cost of such assistance shall be borne by P. Q. Z. & A out of the attorney fees, if any, paid under Section IV of this contract. (I understand that if P. Q. Z. & A employs associate counsel, a division of attorney fees, if any, paid under Section IV will be made, and I hereby consent to such employment and division of fees).

“VII. RETENTION OF ATTORNEY’S FEES AND ADVANCED COSTS FROM SETTLEMENT PROCEEDS

“P. Q. Z. & A may receive the settlement or judgment amount and may retain its percentage of attorney’s fees from such sum. Before disbursing the remainder to me, it may deduct therefrom the amount of costs and expenses advanced or incurred by P. Q. Z. & A as herein provided.

“VIII. SUBSTITUTION OR DISCHARGE OF ATTORNEY

“P. Q. Z. & A shall be entitled to the reasonable value of its professional services (and its costs and other expenses as provided in Sections V and VI) in the event I discharge P. Q. Z. & A or obtain a substitution of attorneys before any settlement, compromise or judgment on any claim for the prosecution of which P. Q. Z. & A is hereby retained.

“X. COMPENSATION IN EVENT OF SETTLEMENT BY CLIENT

“I agree that if I settle my claim or cause of action without the consent of P. Q. Z. & A, I will pay to P. Q. Z. & A: (a) the fee computed in accordance with the terms of this agreement, based upon the final recovery received by me in the settlement, and (b) the costs and expenses as provided in Section V and VI.” Attachment A to Response of Respondent Zauderer to Relator’s First Set of Interrogatories, No. 454 (Bd. of Commr’s on Grievances and Discipline, S. Ct. Ohio).

Ohio apparently imposes no comparably sweeping disclosure requirements on advertisements that mention other types of fee arrangements, such as hourly rates or fixed-fee schedules. Cf. Ohio DR 2-101(B) (16) — (17). In the absence of any evidence supporting such extremely disparate treatment — and there is none in this record — one inference might be that contingent-fee advertising is being impermissibly singled out for onerous treatment. Cf. Friedman v. Rogers, 440 U. S. 1, 20-24 (1979) (Blackmun, J., concurring in part and dissenting in part); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 475-476 (1978) (Marshall, J., concurring in part and concurring in judgment).

See also Buckley v. Valeo, 424 U. S. 1, 76-82 (1976) (per curiam,); Baggett v. Bullitt, 377 U. S. 360, 372 (1964); Cramp v. Board of Public Instruction, 368 U. S. 278, 287 (1961).

Arguably vague regulations may take on “definiteness and clarity” in the context of the profession’s “complex code of behavior,” and an attorney is properly charged with knowledge of all applicable disciplinary rules and ethical guidelines. In re Bithoney, 486 F. 2d 319, 324-325 (CA1 1973). See also Comment, ABA Code of Professional Responsibility: Void for Vagueness?, 57 N. C. L. Rev. 671, 676-680 (1979).

In addition to ensuring fair notice, vagueness doctrine also guards against “‘harsh and discriminatory enforcement . . . against particular groups deemed to merit [official] displeasure.’” Papachristou v. City of Jacksonville, 405 U. S. 156, 170 (1972) (citation omitted); see also Kolender v. Lawson, 461 U. S. 352, 358 (1983). Some commentators have suggested that vague disciplinary rules have been used as a tool for singling out unorthodox and unpopular attorneys for sanction. See, e. g., Comment, Controlling Lawyers by Bar Associations and Courts, *667 5 Harv. Civ. Rights-Civ. Lib. L. Rev. 301, 312-314 (1970); Comment, The Privilege Against Self-Incrimination in Bar Disciplinary Proceedings: What Ever Happened to Spevak?, 23 Vill. L. J. 127, 135-136 (1977). See also n. 11, infra.

No member of the general public has ever complained to the Office of Disciplinary Counsel about Zauderer’s Daikon Shield advertisement. Second Stipulation of Fact Between Relator and Respondent ¶ 38, App. 41. Instead, the Office filed its charges only as a result of complaints received from other attorneys — including the local counsel for A. H. Robins Company, manufacturer of the Daikon Shield. Id., ¶¶ 39, 40, App. 41.

See, e. g., Brief for Respondent Zauderer In Support Of His Objections, No. DD 83-19 (S. Ct. Ohio), pp. 129-130 (decision of the Disciplinary Board of the Supreme Court of Pennsylvania); id., at 132 (decision of the State Disciplinary Board of the State Bar of Georgia); id., at 135 (decision of the Florida Bar Grievance Committee for the Tenth Judicial Circuit); Statement of Additional Authorities Upon Which Counsel For Respondent Zauderer Intends To Rely, No. DD 83-19 (S. Ct. Ohio), pp. 15-16 (decision *668 of the Office of Trial Counsel, State Bar of California); In re Discipline of Appert & Pyle, 315 N. W. 2d 204 (Minn. 1981).

The Office of Disciplinary Counsel apparently did not initially view the no-legal-fees statement as deceptive, because it did not so charge until almost five months after the proceedings had commenced. Compare Complaint and Certificate, App. 3, with Amended Complaint ¶¶ 24-27, App. 25. As Zauderer notes, “the fact that the charge was not made in the original complaint suggests that if appellee found the ad misleading, it was only after several readings of both the ad and the Code that it reached this conclusion.” Brief for Appellant 38.

See, e. g., Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498 (1982); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35, 49 (1966). The Court previously has noted that, because traditional prior restraint principles do not fully apply to commercial speech, a State may require “a system of previewing advertising campaigns to insure that they will not defeat” state restrictions. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S., at 571, n. 13 .

See In re R. M. J., 455 U. S., at 198 (private reprimand). See also In re Primus, 436 U. S. 412, 421 (1978) (public reprimand); Bates v. State Bar of Arizona, 433 U. S., at 358 (censure).

See, e. g., Govt. Bar Rules IV, V(5)(a), V(20)(a); App. to Juris. Statement 22a-23a. Zauderer also was taxed costs of $1,043.63. Ibid.

“Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” due process guarantees must scrupulously be observed. Wisconsin v. Constantineau, 400 U. S. 433, 437 (1971). See also Board of Regents v. Roth, 408 U. S. 564, 573 (1972) (same with respect to “any charge . . . that might seriously damage [a person’s] standing and associations in his community”); Paul v. Davis, 424 U. S. 693, 722-723 (1976) (BRENNAN, J., dissenting) (“[T]he enjoyment of one’s good name and reputation has been recognized repeatedly in our cases as being among the most cherished of rights enjoyed by a free people, and therefore as falling within the concept of personal ‘liberty’ ”).

The First Amendment protects not only the right of attorneys to disseminate truthful information about the availability of contingent-fee arrangements, but the right of the public to receive such knowledge as well. See, e. g., Linmark Associates, Inc. v. Willingboro, 431 U. S., at 96-97 ; Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 770. Many members of the public fail to consult an attorney precisely out of ignorance concerning available fee arrangements. See, e. g., Ohralik v. Ohio State Bar Assn., 436 U. S., at 473-475 (Marshall, J., concurring in part and concurring in judgment); Bates v. State Bar of Arizona, 433 U. S., at 370 , and n. 22. Contingent-fee advertising, by providing information that is relevant to the potential vindication of legal rights, therefore serves interests far broader than the simple facilitation of commercial barter.

The Court attempts to distinguish Ruffalo by explaining that the absence of fair notice in that case caused the attorney to give exculpatory testimony that, after it prompted the inclusion of additional charges, became inculpatory. Ante, at 655, n. 18. In the instant case, the Court assures, the absence of fair notice was not “particularly offensive” because it simply led Zauderer to refrain from presenting evidence that might have been exculpatory rather than to present evidence having an inculpatory effect. Ibid. This constricted interpretation of due process guarantees flies in the face of what I had thought was an “immutable” principle of our constitutional jurisprudence — that “the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.” Greene v. McElroy, 360 U. S. 474, 496 (1959).

See generally Govt. Bar Rule V(11)-(20). The attorney may only file a list of objections to the certified findings and recommendations along with a supporting brief. Rule V(18).

See Brief for Respondent Zauderer In Support Of His Objections, No. DD 83-19 (S. Ct. Ohio), pp. 76-78.

The mere opportunity unsuccessfully to bring procedural violations to the attention of an appellate-type forum obviously does not constitute the meaningful “chance to be heard” that is guaranteed by the Due Process Clause. Cole v. Arkansas, 333 U. S. 196, 201-202 (1948).