Appendix — Jacoby v. Supreme Court of New Jersey
Supreme Court brief1982
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Appendix A
ADVISORY COMMITTEE ON
PROFESSIONAL ETHICS
Appointed by the Supreme Court of
New Jersey
oe ame Name
Used in Local Office
The inquirer acting as counsel
to a law firm which is doing
business in several other jurisdic-
tions under its firm name which we
shall call "X & 1,“ inquires
whether the firm may properly
establish a law office or offices
in New Jersey under the name "X &
Y." In the brief submitted in
support of the inquiry, our atten-
A-1
ip. ö 1 <2 er 2
eee Rr 4128 8 8 te
tion is correctly called to the
provisions of DR 2-102(C) which
reads as follows:
"A lawyer shall not
hold himself out as
having a partnership with
one or more lawyers
unless they are in fact
partners. A — oy
shall not be formed or
continued between or
among lawyers licensed in
different jurisdictions
unless all enumerations
of the members and
associates of the firm on
its letterhead and in
other permissible Listings
make clear the jurisdic-
tional Limitations on
those members and associates
of the firm not Licensed
to practice in all listed
jurisdictions; provided,
however, a firm name may
not be used in New Jersey
unless all those named
ate or were members of
the bar in New Jersey.
(Emphasis added).
A-2
Ss
The language of the rule is
clear. This Committee is not at
liberty to disregard its plain
language and refers the inquirer to
Rule 1:14, observing that only the
Supreme Court has the power to
amend or otherwise modify the
Disciplinary Rules.
RR K K K „ „ „* *
A-3
8
Append ix B
SUPREME COURT OF NEW JERSEY
A-82 September Term 1981
ON PETITION FOR REVIEW OF OPINION
475 OF THE ADVISORY COMMITTEE ON
PROFESSIONAL ETHICS AND DR 2-102(C)
Argued October 5, 1981 --
Decided April 28, 1982
On petition for review from
the Advisory Committee on
Professional Ethics.
Katherine J. Sweeney argued
the cause for — tent Jacoby &
Meyers (Sweeney, Bozonelis,
Staehle ward, attorneys).
Colette A. Coolbaugh, Secretary,
argued the cause for respondent
Advisory Committee on Profes-
sional Ethics (Ms. Coolbaugh,
a
——
N
Arthur Montanc argued the
cause fcr intervenor New
Jersey State Bar Association
Mont Summers, Mullen &
uel, orneys; P ano
a an P. Bruce, on the
end Bis W
A brief was submitted on
behalf of amicus curiae
Robert B. Zagoria, Pro Se.
B-2
The op inica of the Court was
delivered by Pashman, J.
New Jersey law firms have
always included only the names of
New Jersey lawyers. That custom is
now enforced by Disciplinary Rule
2-102(C), which forbids the use of
law firm names “unless all those
named are or were members of the
har in New Jersey." The purpose of
the rule is obvious. It is reason-
able to expect that those listed in
a law firm name are licensed to
practice in this State. If those
persons are not so licensed, the
firr name is deceptive to consumers
of legal services. To the extent
B-3
law firm names with unlicensed
lawyers defeat consumers’ reasonable
expectations, the disciplinary rule
protects the public against decep-
tion.
Jacoby & Meyers, a law partner-
ship with offices in California and
New York, seeks review of an
opinion of the Advisory Committee
on Professional Ethics which
prohibited it from opening a New
Jersey office under the name
“Jacoby & Meyers." Neither of
petitioner's named partners is or
has ever been a member of the New
Jersey bar. Petitioner challenges
the constitutionality of DR
B-4
2-102(C) and urges this Court to
either revise the rule or to grant
Jacoby & Meyers an exemption from
the rule's coverage.
We find that DR 2-102(C) does
not invade petitioner's constitu-
tional rights. We therefore deny
the relief requested and affirm
the Advisory Committee's opinion.
At the same time, we have concluded
that the effects of the rule
and its benefits should be studied
further. Our traditional method
of rule evaluation is by reference
to Supreme Court Committee, report
and recommendation by that committee,
and finally, a decision by this
B-5
Court. We will follow that proce-
dure in this case.
Moreover, to permit a full
evaluation of DR 2-102(C), we have
decided that our ban on television
advertising in DR 2-101(D) should
also be reconsidered. Jacoby &
Meyers uses television advertising
in New York that reaches consumers
of legal services in this State.
Allowing Jacoby & Meyers to affiliate
with a New Jersey firm and advertise
its name here while using television
in New York would give its New
Jersey affiliates an unfair advantage
compared to other New Jersey firms.
That unfair advantage would exist
B-6
even if Jacoby & Meyers did not
advertise the fact of its New
Jersey affiliation on television,
and even if the New Jersey firm
used only advertising which our
rules permit.
Therefore, after the release
of this opinion, the Court will
refer both rules to a special
Supreme Court Committee for its
report and recommendations. Given
the importance of the matter being
considered, we will ask that
Committee to subject these issues
to intensive study. This will
include hearings where all points
of view may be expressed. We will
B-7
ask the Committee to report by
January 1, 1983, if possible. We
express no view on the merits of
this reevaluation.
The Court's responsibility in
regulation of the state bar is
fundamental. We have plenary and
exclusive control over both admis-
sion to the bar and the practice of
law. We seek to exercise that
control in the interests of the
public. In a rapidly changing
world, we should be careful to
remain responsive to the public's
needs. However, it would be wrong
to alter existing rules, and the
legitimate expectations they
create, without an understanding of
what effects the changes may have.
We therefore need a thorough review
and study.
Finding no constitutional
infirmity in DR 2-102(C), we deny
the reflief requested by petitioner
and affirm the Advisory Committee's
opinion.
In 1972, Leonard Jacaby &
Stephen Meyers, members of the
California bar, formed a profit-
making law firm to serve a large
middle-class clientele with basic,
standardized legal services.
Beginning in California, the firm
expanded considerably during the
1970's using media advert ising
and operating out of many neighbor-
B-9
hood law offices staffed by local
attorneys. In 1979, the firm
opened neighborhood offices in New
York under its California name,
Jacoby & Meyers. A third partner,
licensed to practice law in New
York, oversees its operations
there. Jacoby & Meyers currently
has 75 offices. The firm states
that it interviews over 500 clients
per day, accepting about 600 new
matters each week.
Petitioner has indicated its
desire to open a New Jersey office.
On September 10, 1980, Jacoby &
Meyers requested an opinion from
this Court's Advisory Committee on
B-10
Professional Ethics on whether DR
2-102(C) allowed the use of its
name in connection with its antici-
pated practice here. The Committee
decided in N.J. Advisory Comm. on
Professional Ethics, No. 475, 107
N. J. E. J. 283 (Apr 2, 1981) (Ethics
Opinion 475), that the plain
language of DR 2-102(C) forbade the
use of Jacoby & Meyers as a New
Jersey law firm name because
neither Leonard Jacoby nor Stephen
Meyers had ever been licensed to
practice law in New Jersey. On
April 3, 1981, Jacoby & Meyers
petitioned this Court for review of
B-11
the Advisory Committee opinion,
pursuant to R.1:19- 8.47
11
The initial question is
whether Jacoby & Meyers has "stand-
ing" under R.1:19 to petition this
Court for review of the Advisory
Committee decision. Petitions for
Supreme Court review can be filed
by “any aggrieved member of the
bar, bar association or ethics
committee," R.1:19-8. NJSBA con-
cedes that the words “member of
1. After granting the peti-
tion, we permitted the New Jersey
State Bar Association (NJSBA) to
intervene in a: of the
2898 ru N. J.
(1981).
B-12
the bar do not clearly exclude
lawyers from other states, but
correctly notes that R.i:19-8 must
be read in conjunction with R.1:19-2,
which defines the Advisory Com-
mittee s original jurisdiction.
The latter rule allows the Com-
mittee to accept inquiries “only
from the state bar association,
from any county or local bar
association, or from any member of
the New Jersey bar." R.1:19-2.
Strict application of the Com-
mittee's jurisdictional Limitations
would compel us to dismiss the
petition for review an vacate
Ethics Opinion 475.
B-13
In view of the public importance
of this matter, we choose not to
take such a course. This Court has
inherent power under R.1:1-2 to
relax any rule to prevent injustice.
Granting petitioner's request for
review is consistent with the
intention of R.1:19-8, if not its
language. The Court adopted R.1:19-8
contemporaneously with its decision
in Higgins v. Advisory Comm. on
Professional Ethics, 73 N. J. 123
(1977), which noted that no mechanism
existed for appealing Committee
decisions. The Court explained
that “[ujnder the rule, any proper
person in interest, on notice, may
B-14
x
petition this Court for review of
an Advisory Committee opinion."
73 N.J. at 127 (emphasis added).
As a iaw firm actively seeking
to open offices in this State,
Jacoby & Meyers is clearly a
“proper person in interest."
Denying the petition for review on
jurisdictional grounds would not be
consistent with “fairness in
administration and the elimination
of unjustifiable expense and delay.”
R.1:1-2. Petitioner raises important
constitutional questions concerning
a tule prohibiting out-of-state
attorneys seeking to use their firm
names in New Jersey. Petitioner's
B-15
oo
stake in the outcome is clear and
the issues presented are sufficiently
defined for our resolution.
The Advisory Committee ruled
in Opinion 475 on petitioner's
inquiry despite the wording
R.1:19-2 which excludes Messrs.
Jacoby & Meyers from its original
jurisdiction. The committee's
action was appropriate under the
circumstances. Likewise, pur suant
to R.1:1-2 this Court will relax
the jurisdictional requirements of
R.1:19-8 to hear petitioner's claim,
because strict application of the
tule would both needlessly delay
the resolution of an important
B-16
—
ty *
issue and “result in an injustice."
R.1:1-2.
111
At the outset, we hold that
the Advisory Committee correctly
applied DR 2-102(C) to the petition
of Jacoby & Meyers. There is no
question that the use in New Jersey
of the firm name Jacoby & Meyers
would violate our Code of Profes-
sional Ethics.
Disciplinary Rule 2-102(C)
provides that
A lawyer or a
professional corporation
shall not hold himself or
itself out as having a
partnership with one or
B~17
more lawyers or profes-
sional corporations
unless they are in fact
partners. A partnership
shall not be formed or
continued between or
among lawyers licensed in
different jurisdictions
unless all enumerations
of the members and
associates of the firm on
its letterhead and in
other permissible listings
make clear the jurisdic-
tional Limitations on
those members and sso-
ciates of the firm not
licensed to practice in
all listed jurisdictions;
provided, however, a firm
name may not be used in
are Or were
members of the bar in
F (Emphasis
This disciplinary rule clearly
prevents petitioner from using its
name in New Jersey. Leonard Jacoby
and Stephen Meyers have never been
B-18
l
licensed to practice law in this
State. The Code provision could
not be more explicit in banning the
use of their names in a New Jersey
law firm. The Committee, limited
as it must be to interpretation of
the Code of Professional Ethics,
correctly applied the existing
disciplinary rule.
IV
We now address petitioner's
contentions that the provisions in
DR 2-102(C) barring use of the firm
name Jacoby & Meyers unconstitution-
ally infringes upon the firm's
First Amendment rights and violates
B-19
the Commerce, Privileges and
Immunities, and Equal Protection
Clauses of the United States
Constitution.
A. First Amendment
Petitioner argues that the
firm name restriction in DR-102(C)
violates the First Amendment.
Jacoby & Meyers concedes that the
use of a law firm name is a form of
commercial speech and nothing
more.2/ We are therefore asked
to determine whether this Rule
2. In Friedman v. Rogers 440
U.S. 1 (1979), the United Sates
Supreme Court found that use of a
trade name in connection with
optometrical practice involved
speech that was entirely commercial.
(cont.)
B-20
deprives petitioner of its right to
engage in commercial expression.
In the past decade, the United
States Supreme Court has repudiated
2. (cont.)
[The optometrist who uses a
trade name “does not wish to
editorialize on any subject,
cultural, philosophical, or political.
He does not wish to report any
particularly newsworthy fact, or to
make generalized observations even
about commercial matters." His
purpose is strictly business. The
use of trade names in connection
with optometrical practice, then,
is a form of commercial speech and
nothing more.
[440 U.S. at 11, quoting
Virginia Ph v. Va. Citizens
(1976) (Footnote and eat ions
omitted) ].
The name of a law firm is clearly a
trade name as contemplated by the
Supreme Court in Friedman.
B-21
the notion that commercial speech
does not warrant constitutional
protection. The landmark case of
Virginia Pharmacy v. Va. Citizens
Consumer Council, 425 U.S. 748
(1976), held that a state could not
prohibit all advertising by pharma-
cists of the prices of prescription
drugs. The Court stated that, just
as commercial speech is indispens-
able to the proper allocation of
resources in a free enterprise
system, it is also indispensable te
the formation of intelligent
opinions as to how that system
ought to be regulated or altered."
425 U.S. at 765. In Bates v.
State Bar of Arizona, 433 U.S. 350
B-22
(1976), the Court extended the
reasoning of Virginia Pharmacy
to protect the advertising of
prices of routine legal services.
However, the Supreme Court has
never equated commercial speech with
political expression. Our society
values political expression
as an inherent part of the demo-
cratic process. Commercial speech,
in contrast, is valued and constitu-
tionally 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
B-23
suppression of commercial messages
- « « more likely to deceive the
public than inform it.“ In re
Professional Ethics Opinion 447, 86
NX. J. 473, 477 (1981), quoting
Central Hudson Gas v. Public
Service Comm'n, 447 U.S. 557,
(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.
Because commercial speech
concerning the nature or price of
goods and services is more objective
than other speech, it burdens the
B-24
speaker less to require its truth-
fulness. At the same time, commercial
speech is perhaps more likely to be
taken as objectively true, and
therefore may more easily deceive
the listener when false. The
obvious importance of commercial
speech in generating business
profits insures that its proper
regulation will not unduly inhibit
the full flow of business informa-
tion which the speaker seeks to
convey. Id. at 775-81 (Stewart, J.
concurring). While restraints on
other forms of speech may chill
expression and development of
political and other ideas, regulation
B-25
*
of commercial speech serves primarily
to ;tomote honesty and fair dealing
in the marketplace.
Not all commercial speech
receives identical constitutional
protection. In Friedman v. Rogers,
supra, the Supreme Court drew a
distinction between different types
of commercial speech which bears
directly on petitioner's claim.
The Court explicitly dist inguished
the objective and easily verifiable
price information at issue in
Virginia Pharmacy and Bates from
the more potentially misleading
information conveyed through use
of a trade name. The Court noted
B- 26
he
La
that while Virginia Pharmacy and
Bates involved speech that was
self-explanatory, a trade name is
a form of commercial
speech that has no
intrinsic meaning.
A trade name conveys no
information about the
price and nature of the
services offered by an
optometrist until it
acquires meaning over a
period of time associa-
tions formed in the minds
of the public between the
name and some standard of
4.— or 1
cause these ill-defined
associations of trade
names with price and
quality information can
be 1 by che
users of trade names,
there is a significant
possibility that trade
names will be used to
mislead the public.
1440 U.S. at 12-13
(footnote omitted) ]
B-27
The Supreme Court noted in
Friedman that the use of trade
names has some potential communi-
cative value, but also poses
numerous “possibilities for decep-
tion." Id. at 13. Balancing the
value of trade names against their
potential to mislead, the Court
upheld a prohibition on the use of
trade names by optometrists .3/
3. That a trade name contains
no explicit falsehood did not
prevent the Court from barring its
use.
“Obviously, much commer-
cial speech is not ovabl
false, or even wholly false,
but only 8 or; mis-
leading. We foresee no
obstacle to a State's dealing
effectively with this prob-
lem.”
(cont. )
It is precisely the potential
for misleading the public through
“ill-defined associations" inherent
in trade names which Disciplinary
Rule 2-102(C) seeks to address and
which use of the firm name Jacoby &
Meyers might engender. The potential
to mislead arises from the belief
that those who appear in a law
firm's name are practicing New
Jersey attorneys. In fact,
neither named partner is licensed
3. (cont.)
[440 U.S. at 9-10, quoting
Virginia Pharmacy, supra,
GZ5 U.S. at TIS
B-29
to practice here. Use of the name
Jacoby & Meyers may therefore lead
prospective clients to believe
that they are dealing with a
firm headed by New Jersey attorneys
when in fact they are not .4/
4. There is no evidence
to the contrary in this
record. The universalpractice
throughout the history of the
legal profession in this
State, as far as we know, has
been to include only New
Jersey attorneys in firm
names. This itself is persua-
sive evidence of the recognized
potential for such deception.
Of course, prospective
clients often — about a
firm before retaining it.
Presumably such inquiry, along
with some pre knowledge
about Jacoby & Meyers, would
lead many to the realization
(cont .)
B-30
As we have often noted, there
is nothing more important to our
system of justice than public
confidence in the bench and bar.
Whether the attorneys in a firm are
licensed to practice law in this
state is information of the utmost
importance to prospective clients.
Cf. In the Matter of R.M.J., 50
U.S.L.W. 4165, 4189 (Jan. 25, 1982)
(listing the states in which a
4. (cont.)
that the named partners are
not New Jersey attorneys.
Other prospective clients,
however, may have less knowledge
of the — — profession and
may therefore anticipate that
they will be getting the legal
assistance of Messrs. Jacoby &
Meyers themselves.
B-31
lawyer is licensed to practice is
“factual and highly relevant.) A
client who finds that the firm he
has consulted is headed and con-
trolled by lawyers not licensed --
and perhaps not even qualified --
to practice in New Jersey may
justifiably lose confidence in the
bar and the bench that permitted
such deception. The danger that
such deception would occur in the
absence of Disciplinary Rule
2-102(C) is sufficient constitu-
tional justification to restrict
petitioner's commercial speech.
Our holding in this case is
supported by the recent United
States Supreme Court decision
B-32
involving commercial speech by
lawyers, In the Matter of R. H. J.,
50 U.S.L.W. 4185 (Jan. 15, 1982).
While invalidating restrictions
placed by Missouri on lawyers’
advertising, the Supreme Court
stressed that the Constitution
permits prohibition of both
inherently misleading advertising
and advertising that experience has
shown is subject to abuse. 50
U.S.L.W. at 4188-89. That is
precisely the basis for the prohi-
bition here. The use of a firm
name in New Jersey that includes
attorneys not admitted to our bar
B-33
N
is certain to deceive at least some
consumers of legal services. /
This inquiry does not end
there, however. As the United
States Supreme Court pointed out,
“the remedy ... is not necessarily
a prohibition but preferably a
requirement of disclaimers or
explanation," 50 U. S. L. HM. at 4189.
- A state supreme court
Judge 15 New York recently denied a
on by Messrs. Jacoby and Meyers
to dismiss an action charging them
with misrepresenting themselves as
attorneys licensed to practice in
that state. The judge ruled that
the c r filed by the N.Y.
Criminal and Civil Courts Bar
Association, stated a cause of
action for violating the proscrip-
tions on unauthorized ractice in
the state's Judiciary Law. N.Y.
Law J., April 5, 1982, at Rae:
B-34
|
*
2
3 soph
Moreover, "restrictions upon such
advertising may be no broader than
reasonably necessary to prevent the
deception." Id.
This “less restrictive alter-
native" approach immediately
suggests the possibility that the
use of a disclaimer such as "Jacoby
& Meyers, not licensed in New
Jersey" should be permitted.
However, instead of diminishing the
potential for deception, we believe
such an explanation would create
additional confusion. It might
even imply to some prospective
clients an official disapproval of
Jacoby & Meyers' practice. We do
not believe that the Constitution's
B-35
.
protection of commercial speech
requires such risks, particularly
since our interpretation of DR
2-102(C) allows New Jersey firms to
affiliate with out-of-state firus
and to advertise that affiliation,
consistent with our rules on
advertising. See infra at 18-22.
It might also be suggested
that the deception inherent in the
use of the firm name "Jacoby &
Meyers" would not exist but for our
rule, and that the rule change
itself would end the deception.
The rule has reinforced the public
expectation that those named in a
New Jersey firm are licensed to
practice in this State.
B- 36
6
1
Undoubtedly a rule change would
diminish that expectation over time
and therefore reduce the possi-
bility of deception. However, we
see no constitutional requirement
to abolish DR 2-102(C) and thereby
risk such deception, since firms
with named out-of-state Lawyers
have alternative means of adver-
tising that are neither deceptive
nor confusing, see infra at 18-22.
There is a further constitu-
tional justification of the con-
tinuation of the prohibition
contained in the rule. Under our
rules, law firm names are offi-
cial" designations, and therefore
are regulated more carefully than
B-37
ley
ty
. U a
N 1 Aa - . 4 ae 0
ordinary advertising. See In re
Opinion 447, supra. A firm name,
like an attorney's license,
letterhead or business card,
services to identify the firm or
association of attorneys as per-
sons authorized to practice law in
this jurisdiction. Id. Where, as
here, the State seeks simply to
ensure that the official status of
an attorney as one licensed to
practice in New Jersey is conveyed
with accuracy and clarity, there
can be no doubt about the validity
of a rule proscribing deceptive law
firm names. For this reason as
well, we conclude that DR 2-102(C)
B-38
*
**
ee
is a valid regulation of commercial
speech.
In concluding that the First
Amendment does not protect the use
of the firm name Jacoby & Meyers”
in New Jersey, we note that this
restriction does not hamper the
ability of that firm, or any New
Jersey firm with which it may be
associated, to advertise the
association. New Jersey firms are
not prohibited from associating
¥ th out-of-state law firms or from
advertising that association as
long as there is no deception
involved. We recognize that the
legal professional has changed
dramatically over the last decade,
B-39
with legal advertising now per-
mitted and the practice of law
becoming increasingly interstate in
scope. Our rules are flexible
enough, despite the firm name
restriction involved in this case,
to accommodate the needs of multi-
jurisdictional firms. Lawyers in
New Jersey affiliated with such a
firm will be able to signify in an
appropriate manner their affiliation
on letterheads, professional cards
and office signs, so long as they
make clear that the out-of-state
firm is not Licensed to practice in
New Jersey. Similarly, the multi-
jurisdictional firm will be free to
advertise its association with a
B-40
New Jersey affiliate, consistent
with this State's rules on lawyer
advert ising.
This Court recognizes, how-
ever, that television advert ising
by New Jersey lawyers is banned,
while New York attorneys have been
permitted to advertise on the
broadcast media. Jacoby & Meyers
has legally used television ads in
New York which are regularly beamed
to New Jersey on interstate chan-
nels. The extent and intensity of
such advertising is not in the
record, and we have no way of
knowing how substantial or influ-
ential it is. We do know that if
petitioner were allowed to use its
B-41
firm name in New Jersey in any form
its television advertising could
give it & substantial competitive
unt üg
We do not pass here on the
wisdom of our ban on television
advertising. Advertising by
lawyers is a very recent develop-
ment. its control, abuses, advan-
tages and disadvantages will take
many years to fully appreciate.
While fears may prove to be unfoun-
ded, concerns about advertising are
heightened where television is the
medium. This concern is under-
scored by the United States Supreme
Court's recognition in Bates,
Supra, that “the special problems
B-42
e „
of advertising on the electronic
broadcast media will warrant
special consideration." 433 U.S.
at 384, 53 L.Ed. at 836.
For the present, however, the
ban exists. It has been imposed in
good faith and applies to all New
Jersey Lawyers. Any New Jersey law
firm that advertised in print its
association with petitioner is
likely to gain a real benefit from
petitioner's television advertising.
This would produce an unfair
advantage over other firms in New
Jersey who comply with the rule.
We would, in effect, have drawn an
»xception to our television ban in
favor of petitioner and its New
B-43
Jersey affiliates. The Court finds
no conceivable justification for
such an exception. Indeed we would
deem it grossly unfair. We there-
fore hold that our ban on tele-
vision advertising, DR 2-101(D),
prevents New Jersey attorneys and
New Jersey firms from advertising
or allowing the advertising of
their association with petitioner
in any way, as long as petitioner
continues television advert ising
which reaches New Jersey con-
sumers 27
6. It makes little sense to
reserve this question as the
dissent would have us do. Assuming
that Jacoby & Meyers is serious
about coming into New Jersey, the
(cont.)
B-44
Our restriction on the
use of out-of-state firm names
which are not televised in New
Jersey is highly limited, the
limitation reflecting only the
6. (cont.)
issue will inevitably arise.
Rather than leave petitioner
uncertain about the terms on which
it can associate with a New
Jersey firm, thereby engendering
further litigation, judicial
economy suggests resolution of the
issue here.
Further, the factual under-
pinning of our position -- that the
New Jersey affiliate will benefit
from advertising by Jacoby & Meyers
in New York -- is far more certain
than the dissent suggests. Con-
cededly, the extent of the advan-
tage is not established, but it
belies reality to argue that the
name recognition that would result
from television advertising is of
no value.
B-45
State's legitimate interest in
preventing potential deception.
The rule imposing that limited
restriction, DR 2-102(C), does not
violate the First Amendment. That
the use of petitioner's name may be
more severely restricted is not the
result of the challenged rule, but
rather of our ban on television
advertising, which is not chal-
lenged in this appeal. If peti-
tioner's television advertising
terminates, it will stand on the
same footing as any other out-of-
state firm.
B. Commerce Clause
Petitioner argues next that DR
2-102(C) violates the Commerce
B-46
Clause 2/ by requiring out-of-
state law firms to change their
names before establishing offices
within New Jersey when their named
partners are not licensed to
practice here. Petitioner contends
that the rule's restriction on law
firm names unduly burdens inter-
state commerce in legal services.
Under the Commerce Clause, the
“crucial inquiry" is whether the
law is "basically a protectionist
measure, or whether it can fairly
be viewed as a law directed to
legitimate local concerns, with
7. U.S. Constituion, Art. I,
Section 8, cl. 3.
B-47
effects upon interestate commerce
that are only incidental."
Philadelphia v. N. J., 437 U.S. 617
(1978).
Measures whose only purpose is
economic protection of local
interest3 are virtually per se
invalid. See Philadelphia v. New
Jersey, supra. However, it is well
established that a state may, in
the exercise of its police power,
lawfully enact legislation affec-
ting interstate commerce, provided
that the federal government has not
preempted the field. Such state
regulation is limited only to the
extent that it discriminates
against interstate commerce.
B-48
See Philadelphia v. N.J., 437 U.S.
at 626-27. In this case, there is
no such discrimination. The rule
applies equally to all persons,
resident and nonresident, who are
not members of the New Jersey bar.
In the absence of such discrimi-
nation, there can be no violation
of the interstate commerce clause.
See Huron Portland Cement Co. v.
Detroit, 362 U.S. 440 (1960).
Even if the state regulation
is directed against interstate
commerce, it may be upheld if it
satisfies a two-part balancing
test. Applying that test, the
courts will uphold regulations
whenever (1) they are rationally
B-49
related to legitimate state con-
cerns, and (2) the resulting
discrimination is outweighed by the
state interest in enforcing the
regulation. See Pike v. Bruce
Church, Inc., 397 U.S. 137 (1970);
Southern Pacific Co. v. Arizona,
325 U.S. 761 (1944).
We need not belabor the
State's legitimate interest in
regulating its Bar through the
enforcement of DR 2-102(C). The
rule is not a “protectionist”
measure, but rather a measure
rationally related to the legi-
timate state concern of preventing
deception. State legislation
designed to prevent deception has
B-50
long been recognized as valid,
despite its incidental effects on
interstate commerce. See Pike v.
Bruce Church, supra, 325 U.S. at
143; Sligh v. Kirkwood, 237 U.S.
52, 61 (1915). There is no con-
stitutional obstacle to the State's
prohibition of deceptive or mis-
leading commercial speech.
Friedman, supra, Virginia Pharmacy,
supra. And "(t]he interest of the
States in regulating lawyers is
especially great since lawyers are
essential to the primary govern-
mental function of administering
justice, and have historically been
‘officers of the courts.
Goldfarb v. Virginia State Bar, 421
B-51
—
U.S. 773, 792 (1975) (citations
omitted).
The State's paramount interest
in preventing deception in the
practice of law overrides any
incidental effect the rule may have
on interstate commerce. While the
Supreme Court recognized in
Geldfarb that legal services are
"commerce" for purposes of the
Sherman Act, 15 U.S.C. Section 1,
et seq., the Court was careful to
emphasize that "we intend no
diminution of the authority of the
State to regulate its professions."
421 U.S. at 793. Obviously, the
entire regulatory scheme for any
profession affects interstate
B-52
commerce in that profession's
services. But "the Constituion
does not require that because a
lawyer has been admitted to the bar
of one State, he or she must be
allowed to practice in another."
Leis v. Flynt, 439 U.S. 438, 443
(1979). Even Bar rules which
burden interstate legal practice
substantially more than the dis-
ciplinary rule at issue here do not
violate the Commerce Clause. See
Wilson v. Wilson, 416 F.Supp. 984
(D.Or. 1976), aff'd mem., 430 U.S.
925, 51 L.Ed. 2d 768 (1977) (up-
holding a bar rule requiring Oregon
bar applicants to declare their
intention to be Oregon residents at
B-53
J
the time of admission); Aronson v.
Ambrose, 366 F.Supp. 37 (DVI 1972),
aff'd, 479 F.2d 75 (3rd Cir.),
cert. den., 414 U.S. 854 (1973)
(upholding a rule requiring all
Virgin Island attorneys to be
domiciled there).
The Commerce Clause thus does
not prevent the application of
DR 2-102(C) to petitioner. The
rule presents little burden on
interstate commerce, and any burden
is wholly incidental to valid
regulation of the State bar. It
allows licensed non-resident
attorneys to practice law in this
State and to use their names here.
The rule treats licensed non-
B-54
*
res ident attorneys precisely the
same as licensed resident attor-
neys. Only those non-resident
attorneys not licensed to practice
law in New Jersey face any burden
under DR 2-102(C). Even these
lawyers can form multi-jurisdic-
tional partnerships that operate in
this State, and can advertise their
affiliation with licensed New Jersey
attorneys. The rule's sole burden
upon interstate commerce is that
attorneys not licensed to practice
here may not use their names in the
name of a New Jersey law firm.
Because the State's interest in
protecting the public from decep-
tion clearly justifies this inci-
B-55
dental restraint on interstate
commerce in legal services, there
is no Commerce Clause violation.
We note as a matter of infor-
mation, in addition to the absence
of any residency requirement in New
Jersey, that we are the only state
which permitted admission to the
bar on the basis of an MBE test
score alone, where the test was
taken in another State. /
8. That practice no longer
obtains, since we recently revised
our rules of admission, both for
residents and non-residents, to
require satisfactory performance on
both the MBE test and in an essay. *
The MBE test, however, may still be
satisfied by being passed when
administered out-of-state.
B-56
C. Privileges and Immunities Clause
The Privileges and Immunities
Clause2/ insures that non-resi-
dents and residents receive equal
treatment with respect to f unda-
mental" activities whose restric-
tion would “hinder the formation,
the purpose, or the development of
a single union." Baldwin v.
Montana Fish & Game Comm'n, 436
U.S. 371 (1978). Salorio v.
Glaser, 82 N. J. 482, cert. den. 449
U.S. 804, 66 L.Ed.2d 7 (1980).
Petitoner argues, without direct
support, that the right to use its
9. U.S. Constitution, Art.
IV, Section * Ci. .
B-57
tp. ae,
firm name in New Jersey is a
"fundamental" privilege guaranteed
by the Privileges and Immunities
Clause.
The Supreme Court has never
declared the practice of law to be
a “fundamental” privilege under the
clause, and nothing suggests it
would now do so. To the contrary,
as the Court noted in Leis v.
Flynt, supra, several times in the
last decade it has sustained state
bar rules that excluded out-of-
state counsel from practice
B- 58
altogether or on a case-by-case
basis. 439 U.S. at 443,10/
Moreover, as stated above,
DR 2-192(C) only incidentally
affects out-of-state attorneys.
10. Some state courts have
used the Privileges and Immunities
Clause to invalidate bar require-
ments that effectively precluded
non-residents from practicing law.
See Gordon v. Comm'n on Character
and Fi ness, oie 9
W.E.2d 1309, 422 W.Y.S. 2d 641
(1979) (invalidating six-month
residency requirement for bar
admission); Sheley v. Alaska Bar
Ass'n, 620 P.
(invalidating 30-day requirement).
In contrast to those requirements
prohibiting any professional
activity, ever, DR 2-102(C)
places only a limited restriction
on attorneys practicing law in the
State. Of crucial importance, that
restriction makes absolutely no
distinction based on residence and
works no discrimination against
licensed non-resident attorneys.
B-59
The rule treats licensed non-
resident attorneys precisely the
same as licensed resident attor-
neys. Non-resident attorneys have
greater difficulty using their firm
name in New Jersey only to the
extent that they may face greater
difficulty satisfying the require-
ments for being admitted to the Bar
or continuing to practice here.
Such requirements have been upheld
by the Supreme Court, see Leis v.
Flynt, supra; Wilson v. Wilson,
Supra, and are not at issue here.
There is no serious contention that
the right to use a specific law
firm name is “fundamental” for
B-60
FS
he .
purposes of the Privileges and
Immunities Clause.
The rule, therefore, does not
offend the Privileges and Immuni-
ties Clause.
D. Equal Protection Clause
Petitioner advances a final
constitutional claim that DR
2-102(C) offends Equal Protection
“by unreasonably discriminating
between classes of partnership
names." Jacoby & Meyers argues
that allowing the use of firm names
containing deceased or retired
partners while barring the use of
firm names containing lawyers
unlicensed in New Jersey
B-61
7
irrationally discriminates against
attorneys in those latter firms.
Where state regulation
neither infringes upon a funda-
mental right nor burdens a suspect
class, the Supreme Court has upheld
any legislative classification
based upon facts that "reasonably"
can be conceived to constitute a
distinction, or difference in state
policy,“ Allied Stores v. Bowers,
358 U.S. 522, 530 (1959). In this
case, petitioner points to a
distinction created between lawyers
in firms whose named partners are
or were licensed to practice here
and whose firm name therefore can
be used, and lawyers such as
B-62
Messrs. Jacoby and Meyers who
cannot use their firm name here.
Certainly, lawyers who are not
licensed to practice in New Jersey
do not constitute a suspect class
such as race, religion or alienage
deserving of extraordinary protec-
tion under the Equal Protection
Clause. See, e.g., United States
v. Carolene Products Co., 304 U.S.
144, 152 n.4 (1938). Nor is the
right to use one's law firm name of
fundamental importance in our
ordered scheme of liberties.
Petitioner must therefore argue
that the distinction implicit in DR
2-102(C) between names of deceased
or retired partners and names of
B-63
persons never licensed to practice
law here has no rational relation
to the goal of protecting prospec-
tive consumers of legal services.
See Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456, 66
L.Ed.2d 659 (1981).
The Court does not deny that
use of a firm name containing
deceased or retired partners
has some potential for misleading
consumers. Cf. Nevada Sup. Ct. R.
202 (prohibiting the use of a
partner's name after three years
following his death). However, the
absence of an all-encompassing rule
eradicating every possible species
of misconception does not render
B-64
the existing protections invalid.
"The State [is] not bound to deal
alike with all *.*.* classes, or to
strike at all evils at the same
time or in the same way." Semler
v. Oregon State Bd. of Dental
Examiners, 294 U.S. 608, 610
(1935). [Rleform may take one
step at a time, addressing itself
to the phase of the problem which
seems most acute to the legislative
mind.” Williamson v. Lee Optical,
348 U.S. 483, 489 (1955).
There are significant dis-
tinctions between prohibiting the
use of a firm name such as Jacoby &
Mevers where neither named partner
has ever been licensed to practice
B-65
in New Jersey and requiring that
law firms change their names
whenever a named partner dies. In
the former case, the burden on the
firm is minimal, for the reasons
discussed above. By contrast, the
burden entailed by a mandate that
firms continually update their
names would be substantial.
Additionally, the death of a named
partner may not substantially alter
the firm's practice, and therefore
should not necessitate a sacrifice
in the name-recognition that the
firm has built. Indeed, in many
cases requiring a change of name
upon the death of a named partner
would cause unnecessary confusion
B- 66
*
without preventing deception where
the practice of the firm remains
essentially unchanged.
For these reasons, the dis-
tinction attacked by petitioner is
rational and therefore constitu-
tionally permissible under the
Equal Protection Clause.
*
Although we sustain
DR 2-102(C) against petitioner's
constitutional challenges, we
reiterate that our opinion takes
position about the wisdom of
retaining the rule. Nor do we
express any opinion about the
current ban on television adver-
tising in DR 2-101(D), either in
B-67
no
conjunction with or without the
restriction on use of law firm
names in DR 2-102(C). We believe
that the wisdom of these rules can
best be tested by allowing a full
hearing on all points of view and
en in-depth investigation of the
underlying interests.
In regulating the advertising
of legal services, this Court has
used great caution. We have done
so because the constitution man-
dates that we regulate the practice
of law, N.J. Const. (1947), Art.
VI, Paragraph 2, Section 3, and
because we firmly believe that the
practice of law differs from other
enterprises. The genuine capital
B-68
*
ee
of lawyers does not lie in libra-
ties of legal forms or arsenals of
office equipment. It is the trust
they have earned from their clients
and the reputation they have
developed with fellow practition-
ers, the courts and the community.
It is the experience they have
slowly accumulated by the repeated,
successful exercise of judgment.
This human capital is not acquired
wholesale by adherence to a
routinized practice. It is con-
veyed not by the grant of a fran-
chise but by learning from others
with experience. To the extent
that an out-of-state law firm seeks
to capitalize on a reputation not
B-69
ee |
based on the successful practice of
New Jersey law, the petential for
consumer deception will always be
present.
However, we recognized that in
an age of lawyer advertising,
reputations will no longer develop
exclusively by the word of satis-
fied clients. Both national firms
and advertising in general provide
potential benefits to New Jersey
consumers of legal services.
Whether the benefits of DR 2-102(C)
and 2-101(D) continue to outweigh
the rule's burdens is for che
Supreme Court Committee and ulti-
mately this Court to decide. In
the meantime, however, we retain
B-70
our disciplinary rules and uphold
the constitutionality of
DR 2-102(C). The petition for
review is granted, and Opinion 475
of the Advisory Committee on
Professional Ethics is affirmed.
Petitoner's request for alternative
relief is denied.
Chief Justice Wilentz and
Justices Clifford, Schreiber,
Pollock and O' Hern join in this
opinion. Justice Handler has filed
a separate opinion concurring in
part and dissenting in part.
B-71
SUPREME COURT OF NEW JERSEY
A-82 September Term 1981
ON PETITION FOR REVIEW OF OPINION
475 OF THE ADVISORY COMMITTEE ON
PROFESSIONAL ETHICS AND DR 2~-102(C)
HANDLER, J., concurring in part and
dissenting in part.
I concur in the essential
judgment of the Court that DR
2-102(C) prohibits the inclusion in
a firm name of lawyers not author-
ized to practice law in this State
and is constitutional. I subscribe
to this determination because the
Court also recognizes the right of
New Jersey attorneys to affiliate
with a national law firm and to
advertise their association.
B-72
Hence, the firm name restriction is
extremely narrow.
I do not believe, however,
that the Court should deal with the
question whether a national law
firm such as Jacoby & Meyers or a
local affiliate of that firm will
be in violation of our State's ban
on television and radio advertising
if the local office lawfully
advertises its affiliation through
the conventional print media, while
the national firm continues to
advertise on out-of-state tele-
vision without even mentioning its
New Jersey affiliate. That ques-
tion is premature, complex and
controversial. While it is
B-73
entirely appropriate to note these
issues, there is no need to resolve
them in this case. By ruling on an
interim basis that our State's ban
on attorney broadcast advertising
will apply to certain kinds of
television advertising involving
affiliated law firms, the Court may
be thought to have turned a narrow
firm name controversy into a TV
advertising case with substantial
constitutional and public policy
implications. I am not prepared in
this case to resolve even provi-
sionally the issue of whether
broadcast advertising is permis-
sible. I therefore write sep-
arately to explain my views and
B-74
AY
misgivings on this significant
point.
It is important to keep a
sharp focus on the real issue in
this case. Petitioner Jacoby &
Meyers, a national law firm with
offices throughout California and
New York, is considering opening
several branches in New Jersey and
wants to operate under its existing
name of Jacoby & Meyers. However,
our State's disciplinary rules
prohibit the mention in the firm
name of any lawyer not licensed to
practice in New Jersey.
DR 2-102(C). Neither Mr. Jacoby
nor Mr. Meyers is licensed to
practice in this state.
B-75
Petitioner initiated this
action to challenge the constitu-
tionality of our firm name rule.
In today's decision the Court
hes rejected that challenge. I
agree with the majority that
DR 2-102(C) bars petitioner's use
of its existing name as its firm
name in New Jersey and, as narrowly
construed and applied in our
decision in this case, is uncon-
stitutional. The firm name is not
truly commercial expression or
speech. Rather, it is a quasi-
official designation which can be
reasonably regulated by the State
without encroaching upon protected
B-76
areas of commercial speech. / see
ante at (slip op. at 17-18).
However, I have serious reserva-
tions about the wisdom and con-
tinued viability of our firm name
restriction in this era of multi-
jurisdictional practice and wide-
spread legal advertising. I
therefore welcome the majority's
decision to refer this matter to a
special Supreme Court committee for
consideration of whether to change
our present rule, as well as our
State's total ban on broadcast
advertising by attorneys.
1. The majority further holds
that “[t]he use of a firm name in
New Jersey that includes 8
(cont
3-77
The majority further states
that our firm name restrictions
presents no barrier to a New Jersey
law office advertising its
1. (cont.)
not admitted to our bar is certain
to deceive at least some consumers
of legal services." See ante at
(slip op. at 15). On an
abstract level, that may be so, but
I seriously question the pertinenc
of that proposition. Any poteat ia
deception can be dissipated by a
simple rule change. I see nothing
inherently deceptive about the
practice of using a firm name which
includes out-of-state lawyers.
Certainly, were we to change our
rule to permit nonlicensed attor-
neys to included in a firm name,
we would not be authorizing a
deceptive practice. The vast
majority of jurisdictions now allow
the firm name to follow the firm.
In fact, New Jersey is one of only
two states which have retained this
firm name restriction.
B-78
affiliation with a national law
firm. The New Jersey branch of the
firm may note such an association
on office signs, professional cards
and letterheads, as long as the
reference is not misleading. See
ante at (slip op. at 19). It
may also utilize all currently
permissible forms of commercial
advertising. See ante at
(slip op. at 18-19). As far as I
am concerned, recognition of the
right to advertise affiliation
draws the sting from the firm name
restriction and constitutes the
only basis for its acceptability.
I do not believe the Court is
required to confront more than the
B-79
foregoing propositions. Neverthe-
less, the Court has felt con-
strained to address television
advertising, which is prohibited
under our disciplinary rules.
DR 2-102(D) ("A paid advertisement
- „ shall be communicated to the
public only in print media"). The
majority expresses its understand-
able concern over the fact that
Jacoby & Meyers relies heavily on
broadcast media advertising and
maintains offices in New York,
where there is no ban on television
and radio advertising by lawyers.
It should suffice on this aspect of
the case simply to note this fact
and the potential conflict which
B-80
1
may arise from attempted uses of
broadcast advertising by Jacoby &
Meyers regarding a New Jersey law
firm affiliate.
The Court, for purposes of
this case, states that “if peti-
tioner were allowed to use its firm
name in New Jersey in any form its
television advertising [in New
York] could give it a substantial
competitive advantage [over
New Jersey firms]." See ante
at (81ip op. at 19).
According to the majority:
“Any New Jersey law firm that
advertised in print its association
with petitioner is likely to gain a
teal benefit from petitioner's
B-81
.
television advertising." Ante at
(slip op. at 20). In my
view, the record in this case is
too slim to resolve the fact-
sensitive question of whether
Jacoby & Meyers New York tele-
vision advertising would constitute
a direct benefit and unfair trade
advantage for itself or its New
Jersey branches, at least where the
advertising does not mention the
name of the firm's New Jersey
affiliate. It seems a very deba-
table proposition that a measurable
benefit in New Jersey will accrue
to petitioner or its local affi-
liate if the New Jersey law firm
B-82
is never mentioned in the New York
ads .2/
Of greater concern than the
Court's expressed belief that
Jacoby & Meyers's New Jersey
affiliate would reap an unfair
trade advantage from advertising
practices in New York is the cast
which its discussion could place on
future cases or proceedings which
may be more appropriate for deter-
mining the permissible scope of
2. Even the majority has
admitted that the extent and
intensity of petitioner's New York
television advertisi is not a
matter of record in this case and
that the Court has no way of
measuring the influence or effect
of such advertising. See ante at
(slip op. at 19).
B-83
attorney broadcast advertising.
The majority forewarns Jacoby &
Meyers that if it intends to
continue running television con-
mercials in New York, it must
forego advertising its affiliation
with New Jersey firms not only in
the broadcast but also in the print
media. It serves a similar warning
upon any New Jersey firm affilia-
ting with petitioner.
This in futuro disposition by
the Court necessarily involves
speculation on distant problems
which are not ripe for a reasoned
resolut ion. Cf. Clay v. Sun Ins.
Office Limited, 363 U.S. 207, 221,
80 S.Ct. 1222, ꝗ́ h; 4 L.Ed.2d
B-84
1170, 1175 (1960) (Frankfurter, J.)
("(Wle do not remotely hint to
an answer to a question that
is prematurely put"). Furthermore,
in discussing the question of
permissible television advertising,
the majority addresses an issue
with significant constitutional and
public policy implications.
Such matters should be kept at
arms length until their proximity
to the heart of the controversy
makes hand-to-hand combat with them
unavoidable. Cf. Donadio v.
Cunningham, 58 N.J. 309, 325-326
(1971) (“a court should not reach
and determine a constitutional
issue unless absolutely imperative
B-85
in the disposition of the liti-
gation"). See, e.g., Ahto v.
Weaver, 39 N.J. 418, 428 (1963);
Lordi v. UA New Jersey Theaters,
Inc., 108 N.J. Super. 19, 33 (Ch.
Div. 1969).
Despite my reservations, I am
somewhat mollified because the
Court's decision is intended to be
temporary. It is made in the
context of a potential change in
our rules governing this entire
subject. Were this not a provi-
sional ruling, our decision might
place us on a collision course with
the principles enunciated in the
United States Supreme Court's
latest decision on the scope of
B- 86
.
a
lega’ advertising. See In the
Matter of R.M.J., 50 U.S.L.W. 4185
(Jan. 25, 1982). la that decision
Justice Powell, writing for a
unanimous Court, underscored the
point that regulations restricting
the right of attorneys to advertise
are valid only “where the record
indicates that a particular form or
method of advertising has in fact
been deceptive." Id. at 4188.
Justice Powell further explained
that the scope of any such
restriction must be no broader
than reasonably necessary to
prevent the deception.” Id. at
4189.
B-87
This Court is mindful of the
great changes which have occurred
in the practice of law throughout
the country. It is fully aware of
the direction which the Supreme
Court is taking on attorney adver-
tising. I am confident that we
will navigate within the consti-
tutional markers set by the Supreme
Court. Such a course would acknow-
ledge that there is nothing inhe-
rently deceptive or misleading
about television and radio adver-
tising. 3/ Moreover, it would
3. The en yh tefers to the
landmark case of Bates v. State Bar
of Arizona, 433 U.S. 350, 97 S.Ct.
2691, 53 L.Ed.2d 810 (1977),
wherein the oprene Court first
(cont. )
B-88
2
8
recognize that a blanket prohibi-
tion against such advertising may
sweep more broadly than necessary
3. (cont.)
declared that lawyers have the
constitutional right to advertise
their services. See ante at
(slip op. at 20). In that case,
the Court stated in regard to
television and radio advertising:
„[The special problems of adver-
tising on the electronic broadcast
media will warrant special consi-
der at ion. 433 U.S. at 384, 97
S.Ct. at 2709, 53 L.Ed.2d at 836.
I agree that television and radio
advertising warrant our special
concern because those media provide
the speaker with a unique mers
tunity to reach a widesprea
audience with relative ease.
Nevertheless, in my mind, that
concern alone may not constitute
sufficient justification for a
total ban on television and radio
advertising by lawyers.
B-89
to effectuate the State's legiti-
mate ends.4/
4. Of course, the State may
place reasonable time, place and
manner restrictions on attorney
advertising. See Bates; In re
Ethics Opinion 447, 86 N. L 473
° owever, the mere fact
that DR 2-101(D) restricts only the
manner of advertising, rather than
its content, does not mean the
State's regulation may sweep more
88 than necessary in restric-
ting the manner of advertising.
See, e.g., In the Matter of R.M.J.,
50 U.S.L.W. -S. Jan. 5
198Z) (rule prohibitng attorneys
from mailing announcement cards to
persons other than lawyers, former
clients, relatives or friends held
unconstitutional); Koffler v. Joint
Bar Association, 51 N.Y. IX, 412
N.E.2d 927, 432 N.Y.S.20 872 (1980)
Tattorney mass mailings to real
estate owners and brokers found
constitutionally 8 811 In re
Ee 315 N. K. 2d 204 (Minn. Sup.
t. 1981) (lawyer advert 181
through distribution of brochures
and letters protected under First
Amendment ).
(cont. )
B-90
In the wake of the R.M.J.
decision, questions have surfaced
not only as to the continued
constitutional validity of our
4. (cont.)
Moreover, by prohibiting
lawyers from advertising on
television and radio, it can
certainly be argued that New Jersey
has denied attorneys access to the
most effective means of commercial
. As the Supreme Court
has noted in the context of poli-
tical 8 "(The public's]
increasing dependence on tele-
vision, radio and other mass media
for news and information has made
these expensive modes of communi-
eee Seaport eas 1 of
ef fect ive speech. uckle
v. Valeo, 424 U.S. 1, 19, 96 S.Ct.
61Z, 635, 46 L.Ed BE 2d 659, 688
(1976). See generally Mastro,
Costlow and Sanchez, “Taking the
Initiative: Corporate Control of
the Referendum Process Through Mass
Media Spending and What to Do About
It,“ 32 Fed. Comm. L. J. 315 (1980).
B-91
State's total ban on television and
radio advertising by lawyers but
also as to its desirability as a
matter of policy. At least 39
other states, plus the District of
Columbia, now allow attorneys to
advertise on television or radio in
some form. See Andrews, “Lawyer
Advertising and the First
Amendment," 1981 Am. B. Foundation
Research J. 967, 1014-1015; “Lawyer
Takes to T. V., 109 N. J. L. J. 183
(1982). In addition, the new ABA
Model Rules of Professional Conduct
provide that lawyers may advertise
their services through public
media, including radio and tele-
vision. See Rule 7.2(a), ABA Model
B-92
Rules of Professional Conduct (Alt.
Draft 1981). Thus, DR 2-101(D) may
be constitutionally vulnerable; it
may not comport with current public
policy; and, assuredly, it is ripe
for reconsideration.
I recognize the majority's
sincere conviction that something
be said about the rule's present
application. However, I have a
lingering concern about the effect
of this ruling on petitioner's
otherwise permissible advertising
practices. As already mentioned, a
New Jersey firm may freely adver-
tise its association with a
national law firm, as long as that
advertising is not deceptive or
B-93
-
S
16
misleading. See ante at
(slip op. at 19). Nevertheless,
the Court rules today that such
nonmisleading advertising can be
banned simply because the national
law firm simultaneously exercises
television advertising rights
allowed it in another state, even
though that advertising makes no
reference to the firm's New Jersey
affiliate. This ruling tends to
contradict the Court's basic
rationale for sustaining the firm
name restriction -- that New Jersey
lawyers can fully advertise their
associations with national firms.
However, I do not surmise that,
even in the immediate future while
B-94
our rules are being studied anew,
this Court will prohibit reason-
able, nondeceptive advertising or
deny lawyers the right to contest
any adverse restrictions placed
upon permissible advertising
efforts.
I would see no need to comment
on the subject of attorney tele-
vision advertising in this case
were it not for the Court injecting
the issue into its decision. I
would much prefer to be able to
consider these problems either in a
more appropriate case raising these
issues on an adequate record or in
a rulemaking proceeding which seeks
B-95
* *
the formulation of an appropriate
regulation.
To the extent, the majority's
decision may be thought to be an
imprimatur on our current stric-
tures against television adverti-
sing, I merely want to state that I
do not think this is so and to
Suggest that our rules may not be
deserving of a vigorous de-
tense. / The Court itself recog-
nizes that we may be out of step
5. As a recent editorial in
the New Jersey Law Journal noted:
It is clear that purely
dignitary 223 can
no longer be i s upon
ee sévurtiole 0 the
freedom that attaches to
other, like-situated
(cont. )
B-96
with the times and should consider
bringing our attorney advertising
tules into conformity with the
rest of the country. See “Living
Up to the First Amendment,"
109 N.J.L.J. 204 (1982); Andrews,
supra, 1981 Am. Foundation Research
J. at 1020-1021. I fully expect
the special committee entrusted
with the task of reviewiug this
5. (cont.)
commercial speakers now
attaches to members of the
bar. Perhaps that is
exactly as it should be.
We are, after all, a
nation that stakes its
best hopes on untrammeled
expression.
[Living Up to the
First Amendment,” 109
N. J. L. J. 204 (1982) ]
3-97
subject matter -- and then this
Court in due time and with an
adequate record -- to propose and
adopt rules which ate constitu-
tional and solicitous of the public
and the profession. I would
therefore await a more suitable
case or proceeding than this one
for determining the right of
attorneys to edvertise on tele-
vision and radio.
B-98
SYLLABUS
(This syllabus is not part of the
opinion of the Court. It has been
prepared by the Office of the Clerk
for the convenience of the reader.
It has been neither reviewed nor
— by the ones Court.
Please note that, in the interests
of brevity, portions of any opinion
may not have been summarized.
ON PETITION FOR REVIEW OF
OPINION 475
OF THE ADVISORY COMMITTEE
ON PROFESSIONAL ETHICS AND
DR _2-101(C) (A-82)
Argued October 5, 1982 --
Decided April 28, 1982
PASHMAN, J., writing for a
majority of the Court.
Disciplinary Rule 2-102(C)
requires that the name of any New
Jersey law firm contain only the
names of attorneys who are or were
(if deceased) licensed to practice
law in New Jersey.
Leonard Jacoby and Stephen
Meyers are California attorneys who
formed a profit-making law firm to
B-99
provide a large middle-class
clientele with standardized legai
services. Founded in 1972, the
firm used media advertising,
including television, to expand its
operations. Today the firm ope-
rates 75 neighborhood law offices
in California and New York under
the name of Jacoby and Meyers.
In 1980 Jacoby and Meyers
requested an opinion from the
New Jersey Supreme Court's Advisory
Committee on Professional Ethics.
They wanted to know whether
DR. 2-102(C) would permit them to
use the name “Jacoby and Meyers"
for a New Jersey law office that
they wanted to open. Because
neither Jacoby nor Meyers is
licensed to practice law in New
Jersey, their office here would be
supervised by a licensed New Jersey
attorney. In its Opinion Number
475 the Advisory Committee on
Professional Ethics decided that
the Rule did forbid the use of that
name because neither of the named
mesa was licensed in this
tate.
Jacoby and Meyers petitioned
the Supreme Court for review of
= oe gy Number 475. They argued
that the Rule as applied to them by
B-100
the Committee is unconstitutional
in that it deprives them of their
tights under the First Amendment,
Commerce Clause, Privileges and
Immunities Clause, and Equal
Protection Clause of the U.S.
Constitution. In the alternative,
Jacoby and Meyers aruged that they
should be granted an exemption from
the application of that Rule. The
Supreme Court granted Jacoby and
Meyers’ petition for review and
also permitted the New Jersey State
Bar Association to argue in the
case and file a brief.
HELD: Disciplinary Rule 2-102(C)
was saat applied by the
Committee to Jacoby and
Meyers. The Rule does not
violate their constitutional
rights.
1. The First Amendment
to the U.S. Constitution does not
protect the use of the firm name
‘Jacoby and Meyers" in New Jersey.
The use of a name that includes
attorneys not licensed here will
deceive at least some consumers of
legal services. The Rule's prohi-
bition of the use of The name
Jacoby and Meyers does not violate
the First Amendment's protection of
commercial speech (pp. 15, 18).
B-101
2. Because New Jersey
attorneys are prohibited from
advertising on television (DR.
2-101(D)), and because Jacoby and
Meyers’ New York offices advertise
on television stations which
transmit into New Jersey, any use
of the Jacoby and Meyers name in
New Jersey would give that firm an
unfair advantage over other New
Jersey firms who comply with the
Rule. Therefore, DR. 2-101(D)
prevents New Jersey attorneys from
advertising any association with
Jacoby and Meyers (pp. 19-21).
3. Disciplinary Rule
2-102(C) does not — burden
inter-state commerce in legal
services and does not discriminate
against non-residents of the state.
It applies ually to all rsons,
— n at — are
not members of the New Jersey Bar.
Therefore, it does not violate the
Commerce Clause of the U.S.
Constitution (pp. 23-26).
4. Disciplinary Rule
2-102(C) does nat offend the
Privileges and Immunities Clause of
the U.S. Constitution because it
does not compel unequal treatment
of residents and non-residents with
respect to “fundamental privileges".
B-102
The practice of law is not a
“fundamental” privilege, and the
Rule treats licensed non-resident
attorneys precisely the same as
Sg tesident attorneys (pp.
5. Disciplinary Rule
2-102(C) does not violate the
Equal Protection Clause of the U.S.
Constitution. Its discrimination
against firm names containing the
names of lawyers not licens in
New Jersey in favor of firm names
containing the names of deceased or
retired partners is rationally
related to the goal of eer
prospective consumers of legal
services (pp. 29-31).
6. The wisdom of retaining
DR. 2-102(C) and DR. 2-101(D)
Should be tested by allowing a full
hearing on all points of view and
an in-depth investigation of the
underlying intersts (p. 32).
Opinion Number 475 of the
Advisory Committee on Professional
Ethics is affirmed. Petitioners’
request for exemption from the Rule
is denied. Disciplinary Rules
2-102(C) and 270150 5411 be
teferred to a special Supreme Court
B-103
Committee for evaluation and
report.
HANDLER, J., filed a
separate opinion concurring in part
and dissenting in part. He agrees
that Disciplinary Rule 2-102(C)
prohibits ea firm names which
include the names of 1 not
licensed in New Jersey and that the
Rule is constitutional. However,
he does not believe that the Court
should deal with the question of
whether a national law firm or a
local affiliate of that firm will
be in violation of our State's ban
on television and radio advertising
if the national firm advertises on
out-of-state television without
even mentioning its New Jersey
affiliate. That question is
premature, complex and controver-
sial. He would await a more
suitable case for determining the
right of attorneys to advertise on
television and radio.
B-104
APPENDIX C
SUPREME COURT OF NEW JERSEY
September Term 1981
DOCKET NO. A-82
CIVIL ACTION
ON PETITION FOR REVIEW OF OPINION
475 OF THE ADVISORY COMMITTEE ON
PROFESSIONAL ETHICS AND DR 2-102(C)
NOTICE OF APPEAL TO THE
SUPREME COURT OF THE UN'TED STATES
Petitioner JACOBY & MEYERS
hereby appeals to the Unitea States
Supreme Court from the opinion and
judgment of the Supreme Court of
New Jersey filed on April 28,
1982.
This appeal is being taken
pursuant to Title 28 United States
Code, Section 1257(2).
Petitioner JACOBY & MEYERS
will be designated as the appellant
in the United States Supreme Court.
Respondent Advisory Committee on
Professional Ethics of the Supreme
Court of New Jersey will be desig-
nated as one of the appellees.
Intervenor New Jersey State Bar
Association will also be designated
as one of the appellees. Peti-
tioner will designate this Supreme
Court of New Jersey as an appellee,
also, because respondent Advisory
Committee is merely a committee of
C-2
the Supreme Court and because the
Supreme Court promulgated DR
2-102(C).
This Notice of Appeal is being
filed by attorney Katharine J.
Sweeney, a member of the Bar of the
State of New Jersey, attorney for
petitioner JACOBY & MEYERS.
Katharine J. Sweeney
Sweeney, Bozonelis,
Staehle & Woodward
Attorney for Petitioner
JACOBY & MEYERS
By
Karl R. Woodward for
Katharine J. Sweeney
Dated: July 20, 1982
CERTIFICATE OF SERVICE
On July 20, 1982, I mailed one
copy with first class postage
prepaid of the within NOTICE OF
APPEAL to the following:
Stephen W. Townsend, Clerk
Supreme Court of New Jersey
Hughes Justice Complex
P. O. Box CN-970
Trenton, New Jersey 08625
Arthur Montano, *
Montano, Summers, Mullen & Manuel
Suite 420
Two Executive Campus
Route 70 and Cuthbert Boulevard
Cherry Hill, New Jersey 08002
Collette A. 298 Esq.
Richard J. Engelhardt, Esq.
Advisory Committee on
Professional Ethics
Taylor Place and Capitol Street
P. O. Box CN-037
Trenton. New Jersey 08625
James R. Zazzali, Esq.
Attorney General of the
State of New Jersey
Hughes Justice Complex
Trenton, New Jersey 08625
I certify that the foregoing
statements made by me are true.
am aware that if any of the fore-
going statements made by me are
willfully false, I am subject to
punishment.
Dated: July 20, 1982, at
Chatham, New Jersey.
Karl R. Woodward
I
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.