# Motion to Dismiss or Affirm — Jacoby v. Supreme Court of New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss or Affirm
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 962

## Text

Oa Appeal from the Supreme Coart of New Jersey

I le

Question Presented

Does DR 2-102(C), a Rule of Discipline of the Supreme
Court of New Jersey, which prohibits the practice of law
under a firm name unless each named partner was or is a
member of the New Jersey bar, violate the First and Four-
teenth Amendments, the Commerce Clause, the Privileges
and Immunities Clause and the Equal Protection Clause of
the Constitution of the United States as applied by the
Supreme Court of New Jersey to permit affiliation by out-
of-state law firms with New Jersey firms and, further, to
permit advertisement of such affiliation consistent with New
Jersey disciplinary rules regulating attorney advertising?

TABLE OF CONTENTS

Question Presentev
Tam or AUTHORITIES
Counter-STaTEMENT OF THE CASE

Arcument—<As interpreted by the Supreme Court of
New Jersey, DR 2-102(C) permits affiliation be-
tween out-of-state law firms and New Jersey law
firms as well as advertisement of such affiliation;
thus, although the rule requires that the name of
a New Jersey firm contain only the names of the
partners who are or were members of the New
Jersey Bar, it does not implicate any question
of constitutional significance so as to warrant
plenary review by the Court

A. The narrow restriction on the use of the
Jacoby & Meyers firm name in New Jersey to
prevent deception falls so clearly within the
parameters of permissible regulation under
the Commercial Speech Doctrine as to totally
obviate the need for further review —..........

B. Since DR 2-102(C) neither discriminates based
upon residency nor affects any fundamental
right, it does not violate the Privileges and
Immunities Clause

C. DR 2-102(C) regulates evenhandedly to pro-
tect the citizens of New Jersey without discrimi-
nating against or unduly burdening interstate

4

10

14

9
* 2885

TABLE OF CONTENTS

D. Since DR 2-102(C) is rationally related to an
important State interest it does not violate
the Equal Protection Clause

CoxcLusion

Arran:
A- Rule 1:14 of the New Jersey Court Rules
B—Rule 1:19 of the New Jersey Court Rules

A =

F

ae

iv TABLE OF AUTHORITIES

PAGE
Table of Authorities
Cases Cited

Allied Stores v. Bowers, 358 U.S. 522 (1959) 0. 8

American Trial Lawyers v. New Jersey Supreme
Court, 66 N. J. 258, 330 A.2d 350 (1974) —....... 2,11
Austin v. New Hampshire, 420 U.S. 656 (1975) — 21

Baidwin v. ee ee ee ee ee
871 (1978) 8, 21
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) 7, 13,
15, 17, 26

Brown v. Supreme Court of Virginia, 359 F. Supp.
549 (E.D. Va. 1973), summarily aff’d 414 US.

1034 (1974) 19, 28
Carey v. Brown, 447 U.S. 455 (1990ꝶ 25
Central Hudson Gas v. Public Service Com'n of

New York, 447 U.S. 557 (1980) i 15
Friedman v. Rogers, 440 U.S. 1 (1979) ...............5, 6, 15-18

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) ... 7, 23
Hicklin v. Orbeck, 437 U.S. 518 (1970 21
H. P. Hood & Sons v. DuMond, 336 U.S. 525 (1949)
Hughes v. Oklahoma, 441 U.S. 322 (1979) .......... 22

Huron Portland Cement Co. v. Detroit, 362 U.S. 440
(1960) 7

Leis v. Flynt, 439 U.S. 438 (1979) 7, 8, 21, 23
LiVolsi, In re, 85 N.J. 576, 428 A.2d 1268 (1981) —. 2,10
Logan, In re, 70 N.J. 222, 358 A.2d 787 (1976) ......... 10

TABLE OF AUTHORITIES

Martin v. Davis, 187 Kan, 473, 957 P. 2d 782
(1960)

Martin v. Walton, 368 U.S. 25 (1961) *

Minnesota v. Clover Leaf Creamery Co., 449 U.S.
456 (1981)

NBC, In re, 64 N. J. 476, 317 A. 2d 695 (1974
New Orleans v. Dukes, 427 U.S. 297 (1976) —

Norfolk & Western R. Co. v. Beatty, 423 U.S. 1009
(1975), smamarily aff’g 400 F. Supp. 234 (S. D.
III. 1975) 23

Ohralik v. Ohio Stute Bar Assn., 436 U.S. 447
(1978) 15, 23, 25, 26
Philadelphia v. New Jersey, 487 U.S. 617 (1978) 23
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) —— 7, 22
Police Department v. Mosley, 408 U.S. 92 (1972) — 25
Professional Ethies Advisory Comm. Op. 475, In re,

E 8 8 Bl.

89 N. J. 74, 444 A.2d 1092 (1982) 4,5
Professional Ethics Opinion 447, In re, 86 N.J. 473,

432 A.2d 59 (1981) 3
R.M.J., In re, 102 S.Ct. 929 (1982) 6, 13, 15, 16, 18

Sackman, In re, 90 N. J. 521, —— A.2d —— (1982) 10, 19,
20

State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966) —— 2
Virginia Pharmacy v. Va. Citizens Consumer Coun-
cil, 425 U.S. 748 (1976) 6, 7, 14, 15, 17

Williamson v. Lee Optical, 348 U.S. 483 (1955) — 9, 25

“i

vi TABLE OF AUTHORITIES
PAGE
United States Constitution Cited
First Amendment i, 5, 16, 17, 20, 25
Fourteenth Amendment i
New Jersey Constitution Cited
Article VI, Section II, Paragraph 3 2
Statute Cited
28 U.S.C.:
Sec. 1257(a) 9
Rules Cited
Sup. Ct. R.:
Rule 16 (1) (b)
Rule 16 (01) (d)
N. J. Ct. R.:
R. 1:14 5 3
R. 1:19-1 3
R. 1:19-8 3,4
R. 1:20A-1 11
R. 1:21-1(a) 10, 22

Other Authority Cited

ABA Comm. on Professional Ethies, Formal Op.
318 (1967) 13

——

vii
PAGE
ABA Model Code of Professional Responsibility

DR 2-102(C)

ABA Model Code DR 2-102(B) ao, 24

Disciplinary Rules of the Code of Professional Re-
sponsibility of the American Bar Association, as
amended and supplemented by the Supreme Court
of New Jersey:

ABA Model Code DR 2-102(B) 13
DR 2-102(C) i, 3-5, 7, 8, 10-12, 16, 17, 19-26
DR 2-101(D) . 5, 11

Drinker, Legal Ethies (1953) 12

p. 230 24

NO. 82-139
Ix Toe

Supreme Court of the United States

Ocrosrr Term, 1982

*
*

JACOBY & MEYERS, a partnership,
Appellant,

SUPREME COURT OF NEW JERSEY; ADVISORY
COMMITTEE ON PROFESSIONAL ETHICS OF THE
SUPREME COURT OF NEW JERSEY; and NEW
JERSEY STATE BAR ASSOCIATION,

Appellees.

On Appeal from the Supreme Court of New Jersey

—

MOTION OF APPELLEE SUPREME COURT OF
NEW JERSEY TO DISMISS OR AFFIRM

The appellee Supreme Court of New Jersey respectfully
moves pursuant to Rule 16(1)(b) and (d) to dismiss this
appeal or affirm the judgment of the Supreme Court of
New Jersey on the ground that the constitutional questions
presented are so insubstantial as tc obviate the need for
further review, and also because the case does not raise
any issues of special importance, does not conflict with fed-
eral precedent, was correctly decided below, and may be
rendered moot upon the completion of pending State pro-
ceedings.

2
Counter-Statement of the Case
With the adoption of the 1947 State Constitution, the
existing decentralized regulation of the legal profession in
New Jersey was revamped to establish the Supreme Court
of New Jersey, the State’s highest appellate court, as the
exclusive regulator of the practice of law in the State.“

Thus, Article VI, II, par. 3 of the New Jersey Constitu-
tion provides that the Supreme Court of New Jersey,

“shall make rules governing the administration of
all courts in the State and, subject to law, the prac-
tice and procedure in all such courts . . . [and] shall
have jurisdiction over the admission to the practice
of law and the discipline of persons admitted.”

As consistently interpreted by the Supreme Court of New
Jersey, this constitutional provision empowers the court
to establish and supervise the obligations and conditions as
to the practice of law from admission to disbarment and in
“every area in which unjust or une‘}ical conduct might
afflict the public at the hands of those admitted by the court
to the practice of law.” American Trial Lawyers v. New
Jersey Supreme Court, 66 N.J. 258, 264, 330 A.2d 350, 353
(1974). See also In re LiVolsi, 85 N.J. 576, 428 A.2d
1268 (1981); State v. Rush, supra, 46 N.J. at 410, 217
A.2d at 447. Moreover, in supervising the practice of
law in the State, the Supreme Court of New Jersey
has “scrupulously endeavored to protect against even the
slightest propensity that the public will be deceived or

* Prior to 1947, control over the admission of attorneys to the

mission of attorneys to ice in the State. State v. Rush, 46
N.J. 399, 411-412, 217 A.2d 441, 447 (1966).

misled.” In re Professional Ethics Opinion 447, 86 N.J.
473, 478, 432 A.2d 59, 61 (1981) (upholding disciplinary
rule which prevents attorneys from including non-legal
qualifications on law firm letterheads).

In the exercise of its constitutionally delegated powers,
the Supreme Court of New Jersey has adopted the Dis-
ciplinary Rules of the Code of Professional Responsibility
of the American Bar Association, as amended and supple-
mented by the court, to govern the conduct of the members
of the bar of this State. See N.J. Ct. R. 1:14 (Ral).* To
assist it in enforcing the New Jersey Disciplinary Rules,
the court established the Advisory Committee on Profes-
sional Ethics, which Committee is authorized to accept in-
quiries and issue opinions concerning proper conduct for
members of the legal profession under the disciplinary
rules. N.J. Ct. R. 1.19-1 et seg. (Ra2 to Ra6). A right of
direct review by the Supreme Court of New Jersey of an
opinion of the Advisory Committee is available to any
aggrieved member of the bar under N.J. Ct. R. 1:19-8
(Ra4 to Rad).

Disciplinary Rule (DR) 2-102(C), as promulgated by the
Supreme Court of New Jersey, prohibits the use of a law
firm name in the State “unless all those named are or were
members of the bar in New Jersey.” In September 1980,
the law firm of Jacoby & Meyers requested an opinion from
the Advisory Committee on Professional Ethies as to
whether DR 2-102(C) would permit the use of the Jacoby &
Meyers name in connection with a law practice that the
firm proposed to establish in New Jersey. Both of the
named partners of the firm, Leonard Jacoby and Stephen
Meyers, are members of the California bar; they are not,

As used throughout, “Ra” refers to the appendix to this mo-
tion to dismiss or affirm; “Aa” refers to the appendix to appellant’s
Jurisdictional Statement.

4

however, licensed to practice in New Jersey. In 1972, they
had formed the law firm of Jacoby & Meyers to serve a
large middle-class clientele with basic, standardized legal
services, From the time of its origin in California ten
years ago, the firm has expanded considerably through the
use of media advertising and by opening numerous neigh-
borhood law offices staffed by local attorneys. In 1979 the
firm opened several offices in New York under its California
name, Jacoby & Meyers. These offices are staffed by New
York attorneys under the supervision of a partner licensed
to practice in New York. At present, the firm has 75 offices,
interviews approximately 500 clients per day, and esti-
mates that it accepts about 600 new matters each week.

In response to the inquiry made by Jacoby and Meyers,
the Advisory Committee ruled that the use of Jacoby &
Meyers as a New Jersey law firm name was prohibited by
the plain language of DR 2-102(C) because neither Leon-
ard Jacoby nor Stephen Meyers had ever been licensed
to practice in New Jersey. N.J. Advisory Comm. on Pro-
fessional Ethics, Op. 475, 107 N.J.L.J. 283 (April 2, 1981)
(Aa-Al to Aa-A3). Thereafter, on April 3, 1981, Jacoby
& Meyers petitioned the Supreme Court of New Jersey
for review of the Advisory Committee opinion under N.J.
Ct. R. 1:19-8, claiming that insofar as DR 2-102(C) bars
the use of the Jacoby & Meyers firm name in New Jersey,
the rule unconstitutionally infringes upon the firm’s First
Amendment rights and violates the Commerce, Privileges
and Immunities, and Equal Protection Clauses of the
United States Constitution. The Jacoby & Meyers peti-
tion was granted and subsequently, the New Jersey State
Bar Association was permitted to intervene in support
of the disciplinary rule.

In a decision issued on April 29, 1982, the Supreme

Court of New Jersey upheld the constitutionality of DR
2-102(C). In re Professional Ethics Advisory Comm. Op.

—— — —ů— 7 —
see generally Aa-B5 to Aa-B7). It consequently created

tion, i

importance of the matter, the court asked the committee
to provide its report by January 1, 1983 (Id.). The com-
mittee is currently studying the rule and has scheduled
hearings for November 1982. The future retention of the
rule is thus uncertain.

As to the constitutionality of DR 2-102(C), however,
he Supreme Court of New Jersey carefully analyzed and
correctly rejected the contentions of Jacoby & Meyers under
the applicable precedents of this Court. In regard to the
First Amendment challenge, the court held that the use of
an official designation such as a law firm name could
be regulated without offending the First Amendment in
order to prevent practices inhereatly misleading to the
public, citing Friedman v. Rogers, 440 U.S. 1 (1979) (up-
holding a Texas regulation prohibiting the practice of

At the same time the court referred DR 2-101(D), the ban on
television advertising by New Jersey attorneys, for similar re-
evaluation and study in light of certain facts which came to light
during the course of this case.

herently misleading since the universal practice through-
out the history of the legal profession in this State has
been to include only New Jersey attorneys iu firm names,
and since the pablie expectation that those named in New
Jersey firms are licensed to practice in New Jersey has
been reinforced by the long existence of the rule (Aa-B30
to Aa-B36). Given the potential for deception inherent
in out-of-state firm names in New Jersey, the court up-
held the prohibition only against their use as firm names
under the rationale of Friedman v. Rogers, supra (Aa-B20

to Aa-B32).
By providing that New Jersey firms may affiliate with

an accommodation of interests, with only the narrowest
limitation on the use of firm names to prevent deception,
is consistent with the First Amendment guarantee of free-

mercial speech (Aa-B20 to Aa-B46; citing Virginia Phar-
macy v. Va. Citizens Consumer Council, 425 U.S. 748

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B57 to Aa- B59; citing Baldwin v. Montana Fish d Game
Comm n, 436 U.S. 371 (1978), and Leis v. Flynt, swpra).

|
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i
7

based on residency, a finding fatal to appellant’s privi-
leges and iamunities claim (Aa-B59 to Aa-B61).

Finally, the court below considered and rejected ap-
pellant’s conteation that DR 2-102(C) offends the Equal
Protection Clause “by unreasonably discriminating be-
tween classes of partnership names” since the rule
permits the names of deceased partners to be used by
New Jersey firms while barring firm names containing
lawyers unlicensed in the State (Aa-B61 to Aa-Bé62).
In reviewing this allegation, the court applied the ra-

ing of special protection under the Constitution) (Aa-

ARGUMENT

As interpreted by the Supreme Court of New Jersey,
DR 2-102(C) permits affiliation between out-of-state
law firms and New Jersey law firms as well as advertise-
ment of such affiliation; thus, although the rule re-
quires that the name of a New firm contain only
the names of the partners who are or were members
of the New Jersey Bar, it does noi implicate any ques-
tion of constitutional significance so as to warrant
plenary review by the Court.

As the exclusive regulator of the practice of law in the
State of New Jersey, the Supreme Court of New Jersey
has repeatedly recognized its responsibility for the proper
functioning of the judicial system and, particularly, for
“maintaining public confidence” in that system. In re Li-
Volsi, supra, 85 N.J. at 585, 428 A.2d at 1272. In carrying
out this responsibility, the court has been mindful of the
need to act with just and decent regard for all vital inter-
ests concerned, including those of the pubiic, the bench, tie
bar and the individual respondents.” In re Logan, 70 N.J.
222, 225, 358 A.2d 787, 789 (1976). Where questions have
arisen as to the continued validity of its rules, or as to
their necessity or viability, the Supreme Court of New
Jersey has unhesitatingly undertaken an examination of
the challenged policies. See In re Sackman, 90 NJ.
521, —— A.2d —— (1982) (N. J. Ct. R. 1.21-1(a) modi-
fied so as to permit the practice of law in New Jer-
sey by licensed New Jersey attorneys, whether resi-
dent or non-resident, upon the condition that such attor-
neys maintain a bona fide office in the Stute; rule referred
to committee constituted to examine the question of firm
names to consider also the office requirement of the modi-
fied rule); In re Li Folsi, supra (review of eonstitutionality

1¹

and desirability of Fee Arbitration Committees, N. J. Ct. R.
1:20A-1 et seg., requiring arbitration of attorney fee dis-
putes upon a client’s request, whether the

or not, or upon a lawyer’s request if the client consents;
constitutionality of procedures upheld; need for amend-
ment of rules to provide for limited right
knowledged); American Trial Lawyers v.
Court, supra (constitutionality of rule establishing

ated schedule of maximum contingent fees for tort litiga-
tion upheld) ; In re NBC, 64 N. J. 476, 317 A.2d 695 (1974)
(Canon of Judicial Ethics barring courtroom sketching dur-
ing court seessions or recesses modified). As these New
Jersey cases indicate, the rules of the State’s highest court

f

. . „are never immutable. Applications for their
review are never foreclosed [for] .. . {t]he Court
does not adopt its rules to promote or brook injus-
tice, but, as best it can, to secure justice, and justice
under Constitution and law.” American Trial Law-
vers v. VN. Supreme Court, supra, 66 N.J. at 267,
330 A 2d at 355.

In conformity with this policy, the Supreme Court of
New Jersey has considered and interpreted DR 2-102(C)
and, further, has referred this rule, along with DR 2-101
(D), to a special Supreme Court Committee for additional
intensive study (Aa-35 to Aa-38). Although the court found
no constitutional infirmity in DR 2-102(C) it sought re-
evaluation of the rule, stating:

“The Court’s responsibility in regulation of the
State bar is fundamental. We have plenary and ex-
clusive control over both admission to the bar and
the practice of law. We seek to exercise that con-
trol in the interests of the public. In a rapidly chang-

are

12

ing 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 expecta-
tions they create, without an understanding of what
effects the changes may have. We therefore need a
thorough review and a study.“ (Aa-B8 to Aa-B9).

However, even in its present form DR 2-102(C), as in-
terpreted by the Supreme Court of New Jersey, repre-
sents a balanced approach addressing not only the poten-
tial for deception inherent in the use of firm names in New
Jersey where named partners have not been admitted in
this State but, also, the demands of a “rapidly changing
world” in which multistate practice is increasingly preva-
lent“ (Aa-B8; see also Aa-B39 to Aa-B40). It is the long
standing custom locally that the names of New Jersey law
firms include only the names of attorneys licensed to prac-
tice in the State. This well .stablished practice raises legi-
timate expectations on the part of New Jersey citizens that
the men and women whose names appear as firm names
in this State have obtained admission to the bar in this
State. Henry S. Drinker, in his fundamental work, Legal
Ethics (1953), stated the basis for the firm name limita-
tion in simple, unequivocal terms:

“The name of a lawyer not admitted locally may
not be included in the firm name (even though he
may properly be a member of the firm) despite a

statement on the letterhead, shingle, and law list
that he is admitted only in the foreign state, since

the firm name appearing elsewhere without such ex-

* Nonetheless, the presentation of the Supreme Court Committee's
report and recommendations inay well dictate a rule in the
near future. The court has exp/icitly stated “.. our takes
no position about the wisdov: of retaining the rule” (Aa-B67).

planation would imply that all the members in
name were authorized to practice locally.” At 280.“
usage

Where long established practice and
strictures of rule, the public would indeed be misled by a
departure from such practice. While a rule change, if
deemed appropriate, will a fortiori alter local custom, none-
theless common understandings can be expected to dimi-
nish only over time (see Aa-B37). Moreover, in consider-
ing restrictions on advertising by attorneys, this Court has
noted that in this area there are “special risks of decep-
tion—‘[B]ecause the public Jacks sophistication concerning
legal services, misstatements that might be overlooked or
deemed unimportant in other advertising may be found
inappropriate in legal advertising.’” In re R.M.J., supra,
102 S. Ct. at 936, quoting Bates v. State Bar of Arizona,
433 U.S. 350, 383 (1977) (footnote omitted). Although cus-
tom and the lack of sophistication on the part of the public
clearly support the reasonableness of DR 2-102(C), the
Supreme Court of New Jersey specifically narrowed its
scope. As interpreted, this rule not only furthers the legi-

interstate practice. In this appeal, Jacoby & Meyers chal-
lenges the constitutionality of the rule as limited by the

4
:

See ABA Comm. on Professional Ethics, Formal Op. 318

tate,

Under the ruling of the New Jersey Supreme Court, ap-
pellant may not open a law firm in New Jersey under the
name Jacoby & Meyers since neither named partner is a
member of the New Jersey bar. The decision below does
not completely foreclose use of the Jacoby & Meyers firm
name in the State, however, for appellant may affiliate
with a New Jersey law firm and advertise the affiliation
using its California name. As the court explicitly held in
relation to out-of-state 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 multijurisdictional firm will
be free to advertise its association with a New Jer-
sey affiliate, consistent with this State’s rule on law-
yer advertising.” (Aa-B40 to Aa-B41).

The restriction on the use of the Jacoby & Meyers firm
name in New Jersey is consequently extremely narrow. Al-
though appellant argues that this minimal incursion upon
the use of its firm name violates the First Amendment, the
disciplinary rule in question falls so clearly within the
parameters of permissible regulation of commercial speech
as to totally obviate the need for further review of this
matter.

While this Court has afforded some protection to com-
mercial speech in a doctrine evolving from Virginia Phar-

mac v. Va. Citizens Consumer Council, supra, it has never-
theless repeatedly stressed that the difference between com-
mercial speech and other varieties of speech entitle the
former to a different and lesser degree of protection than
the latter. This is so primarily because commercial speech
is inextricably linked to commercial activity and is care-
fully calculated to promote business profits, thus making
it less likely to be inhibited by proper regulation than
other forms of speech. Id. at 771 n. 24; Bates v.
State Bar of Arizona, supra, 433 U.S. at 383; Fried-
man v. Rogers, supra, 440 U.S. at 10; Central Hud-
son Gas v. Public Service Com’n of New York, 447 U.S.
557, 562-564 (1980). Moreover, since the First Amend-
ment’s concern for commercial speech is based upon the
informational function of advertising, regulations aimed
at promoting truthful commercial communications and fair
dealing in the marketplace are permitted. In re R. M. J.,
supra, 102 S. Ct. at 937.

The necessary corollary to the foregoing proposition is
that commercial speech which is false, deceptive, or mis-
leading is subject to restraint. Id.; Central Hudson, supra,
447 U.S. at 562-564; Virginia Pharmacy, swpra, 425 U.S. at
771. States thus retain the power to regulate commer-
cial activity deemed harmful to the public even when the
activity in question involves speech. Friedman v. Rogers,
supra, 440 U.S. at 10; Ohralik v. Ohio State Bar Assn., 436
US. 447, 456 (1978). In exercising this power, states may
place reasonable restrictions on the time, place, and man-
ner of advertising. Bates v. State Bar of Arizona, supra,
433 U.S. at 384; Virginia Pharmacy, supra, 425 U.S. at
771-772. Such restrictions may require, for example, that
a commercial message appear in such form, or include
such additional information or warnings, as to insure that
it does not lead to deception. While Imlisleading ad-
vertising may be prohibited entirely,” and states may im-

F i

1

pose appropriate restraints when the particular content
or method of the advertising suggests that it is inherently
misleading or when experience has proven that in fact such
advertising is subject to abuse,” restrictions upon such ad-
vertising “may be no broader than reasonably necessary
to prevent the deception.” Jn re R.M.J., supra, 102 S. Ot.
at 937.

The narrow restriction imposed upon the use of out-of-
state law firm names by DR 2-102(C) is clearly authorized
by the foregoing principles because, as interpreted by the
Supreme Court of New Jersey, the disciplinary rule sweeps
no broader than reasonably necessary to prevent the poten-
tial for deception which could arise if named partners in
a New Jersey firm are not and never have been members
of the State bar. In fact, by permitting the advertisement
of affiliation with out-of-state law firms, the rule merely
restricts the manner in which the Jacoby & Meyers name
can be used in New Jersey; it does not prohibit mention of
the name altogether. Since the rule constitutes a reason-
able manner restriction aimed at preventing deception and
permits an alternate means of communicating the connec-
tion or affiliation between out-of-state and New Jersey
firms, it simply does not give rise to an issue of constitu-
tional significance.

The propriety of upholding DR 2-102(C) against a First
Amendment challenge is also particularly clear when this
case is analyzed under Friedman v. Rogers, supra, In
Friedman, the Court sustained a Texas regulation pro-
hibiting the practice of optometry under a trade name, not-
ing that the restriction in question had only the most inci-
dental effect on the content of commercial speech. 440 U.S.
at 16. The decision emphasized that while the use of a
trade name could enhance the solicitation of patronage, the
name itself had no intrinsic meaning and was consequently

17

quite different from and less entitled to protection than
about the price and availability of products and
services. The Court thus distinguished the use of a trade
name from the advertising protected in Virginia Pharmacy
and Bates. 440 U.S. at 12, 16. It noted that while a
trade name could acquire meaning over time through ill-
defined associations, the name had the potential to be ma-
nipulated and used to mislead the public. Consequently,
reasonable regulation in the form of a ban on the use of
trade names in the practice of optometry was found neces-
sary to prevent the very real potential for deception.

While the holding in Friedman compels the conclusion
reached on First Amendment grounds by the Supreme
Court of New Jersey in the Jacoby & Meyers matter, it is
important to point out that the restrictions in both cases
simply prohibit the practice of closely regulated profes-
sions under particular kinds of names found to be inher-
ently misleading to the consumer public. Such limited re-
straints have a minimal impact on commercial speech, for
the factual information associated with the trade or firm
name—such as the type of services offered and the prices
charged—may be communicated freely to the public.“ In
fact, it is deserving of note that the rule at issue here is
even less restrictive than the one upheld in Friedman be-
cause DR 2-102(C), as interpreted by the Supreme Court
of New Jersey, allows out-of-state and New Jersey law
firms to affiliate and publish such affiliations, while the

Texas rule prohibited even the mention of a trade name in
connection with the practice of optometry. In construing
the disciplinary rule to permit more communication than
aliowed in Friedman, the court below properly accommo-
dated the need to regulate commercial activity to protect
the public with the directive contained in In re R. M. J.,
supra, 102 8. Ct. at 937, that restrictions on commercial
speech be limited to those deemed reasonably necessary to
prevent deception. The narrow restraint resulting from this
accommodation is obviously well within the parameters es-
tablished by this Court for permissible regulation of com-
mercial speech.

Despite the clear and persuasive anelogy between the
trade name at the heart of Friedman and the law firm
name involved here, Jacoby & Meyers argues in its Juris-
dictional Statement that Friedman is not controlling in this
case since it applies only where actual abuse or deception
has been demonstrated. This position is plainly wrong. In
Friedman, although the Court took notice of a history of
abuse in the commercial practice of optometry in Texas,
no actual deception was shown on the record invoiving the
partienlar trade optometrists before the Court. The Court
consequently relied upon the potential for deception inher-
ent in the use of trade names and the large-scale commer-
cial practice of optometry in reaching its decision to up-
hold the law. 440 U.S. at 14-16. And recently, in In re
R. M. J., swpra, 102 S. Ct. at 937, the Court reaffirmed that
restrictions on commercial speech are appropriate either
when advertising is inherently likely to deceive, or when
the record indicates that a particular form or manner of
advertising has been deceptive. It is clear, therefore, that
states may regulate commercial speech when the nature of
the speech is likely to mislead the public.

Appellant has also tried to avoid both the holding of
Friedman and the basic tenet of commercial speech doc-

(1960) (upholding a rule which required Kansas attorneys
who practiced regularly in other states to retain local eoun-
sel before appearing in the Kansas courts). See also
Brown v. Supreme Court of Virginia, 359 F. Supp. 549
(E.D. Va. 1973), summarily aff'd 414 U.S. 1034 (1974)
(Virginia bar rule governing admission by reciprocity up-
held as supporting a valid state interest despite claim that
one effect of the rule was to protect resident Virginia at-
torneys from competition). Deference should thus be given
to the findings of the Supreme Court of New Jersey since
it is the forum best equipped to determine and articulate
the purpose of a disciplinary rule it adopted for the regu-
lation of the bar in the State. Moreover, as demonstrated
in the opinion below, long standing custom and the univer-
sal application of the firm name rule in New Jersey have
fostered consumer expectations which may not be prevalent
elsewhere, but which realistically could be frustrated by

the names of attorneys unlicensed in the State
to be used in New Jersey law firm names. The prevention
of deception is thus truly at the heart of DR 2-102(C).
Pinally, in regard to economic protectionism, it is important
to note that the Supreme Court of New Jersey recently

changed a disciplinary rule to provide for equal treatment
between

local bar, but, rather, wants to ensure that more quali-
fied lawyers are available to New Jersey citizens. 90
N.J. at 530. The protectionist motive ascribed by ap-
pellants to the court below consequently is unsupportable.

The Supreme Court of New Jersey properly applied the
commercial speech doctrine in sustaining the extremely nar-
row restriction on the use of out-of-state law firm names
in New Jersey against appellant’s First Amendment chal-
lenge. In fact, in light of the alternate means of communi-
cation specifically authorized by the court below, and the
wholly incidental impact on commercial speech caused by
the valid bar regulation contained within DR 2-102(C), the
First Amendment claim raised by Jacoby & Meyers in this
appeal is so insubstantial as to warrant either dismissal by
the Court, or summary affirmance of the decision of the
Supreme Court of New Jersey.

B. Since DR 2-102(C) neither discriminates based upon
between members of the New Jersey bar and attorneys
licensed elsewhere but not admitted to ice in New

Jersey. That this is so is evident from the plain language
of DR 2-102(C) which allows the names of attorneys li-

ersey attorneys
who happen to live in the State. Since DR 2-102(C) does

and
ties Clause of the Constitution which prohibits a state from
iminati nonresidents in regard to fundamen-
tal rights or essential activities. See Baldwin v. Mon-
tana Fish d Game Com u, supra, 435 U.S. at 380-384;

Hicklin v. Orbeck, 487 U.S. 518, 523-526 (1978). Dis-
tinctions based upon bar membership simply do not come

7
i

10
be

is a fundamental right deserving of
Privileges and Immunities Clause. Surely, this claimed
right is not vital to the preservation of the nation as a
single entity, nor does this claimed right demand recogni-
tion under a “norm of comity;” hence, it is not covered by
the Clause. See Baldwin, supra, 436 U.S. at 383; Austin
v. New Hampshire, 420 U.S. at 656, 660-662 (1975). More-

C. DR 2-102(C) regulates evenhandedly to protect the
citizens of New Jersey without discriminating against
or unduly burdening interstate commerce.

It is, of course, firmly established that notwithstanding
the affirmative grant of authority to Congress as to the
regulation of interstate ~ommerce, the states retain broad
power to legislate in matters of local concern pursuant to
reserved Tenth Amendment powers. See e.g., H. P. Hood
Sons v. DuMond, 336 U.S. 525, 531-532 (1949). As stated
in Pike v. Bruce Church, 397 U.S. 137, 142 (1970), aud re-
affirmed in Hughes v. Oklahoma, 441 U.S. 322, 331 (1979),
“Where the challenged law regulates evenhandedly to ef-
fectuate a legitimate local public interest, and its effects
on interstate commerce are only incidental, it will be up-
held unless the burden on such ecmmerce is clearly exces-
sive in relation to the putative local benefits.” Here, the
challenged rule is uniformly applicable to residents and
nonresidents of New Jersey for, as noted above, the distine-
tion created by DR 2-102(C) is based solely upon admis-
sion to the New Jersey bar and not upon residence in or
out-of-state. DR 2-102(C) is simply not discriminatory on
its face or in its effect.

In this regard, the New Jersey Supreme Court sought in In

— ’

lating the practice of professions.” Goldfarb v. Virginia
State Bar, supra, 421 U.S. at 792. The states’ interest
in regulating lawyers is ‘especially great since lawyers
are essential to the primary governmental function of ad-
ministering justice. Ohralik v. Ohio State Bar Assn.,

at 792. Indeed, “[s]ince the founding of the Republic”
the states and the District of Columbia have had exclusive
over the practice of law within their boundaries.
Leis v. Flynt, supra, 439 U.S. at 442. In conformity
with these iples, this Court has held that a lawyer
licensed in one state need not be permitted to practice
in another jurisdiction. Id. at 443, citing Norfolk d
Western R. Co. v. Beatty, 423 U.S. 1009 (1975), sum-
marily aff’g 400 F. Supp. 234 (S.D. III. 1975); Brown
v. Supreme Court of Virginia, supra. Certainly, lawyers
not admitted in New Jersey, and therefore not permitted
to practice in this State, may be limited in the use
of their firm names in this State, especially in light
of the inherent deception attendant upon such use.
If, as appellant contends, the Supreme Court of New
Jersey has sustained DR 2-102(C) for purposes of eco-

upon interstate commerce may be sustained. In short DR
2-102(C) is not “a protectionest measure” but rather is “a
law directed to legitimate local concerns, with effects upon
interstate commerce that are only incidental.” Philadel-
phia v. New Jersey, 437 U.S. 617, 625 (1978). Appellant’s
claim of undue burden upon interstate commerce must
therefore fail.

aN
244 |

Finally, appellant claims that because New Jersey per-
mits the use of firm names containing the names of de-
ceased partners who were licensed to practice in this State,
the prohibition on the inclusion of out-of-state partners un-
licensed in New Jersey constitutes an irrational classifica-
tion under the Equal Protection Clause of the United
States Constitution. Preliminarily, as noted by the court
below, lawyers who have not been admitted to the bar in a
particular state do not constitute a suspect class . de-
serving o extraordinary protection under the Equal Pro-
tection Clause” (Aa-B63). Further, the “right” to the use
of a particular law firm name as such, rather than as an
affiliate of a New Jersey firm, does not constitute an in-
fringement upon any fundamental right protected by the
Constitution. Thus, DR 2-102(C) is valid if it is “ration-
ally related to a legitimate state interest.” New Orleans v.
Dukes, 427 U.S. 297, 308 (1976).

The Supreme Court of New Jersey has held that a firm
name such as Jacoby & Meyers is inherently misleading.
Long standing custom and usage in New Jersey has limited
firm names in this State to the named partners who are or
were members of the New Jersey bar. Particularly in such
circumstances, the use of the Jacoby & Meyers name with-
out opportunity for explanation (see Drinker, Legal Ethics,
supra, at p. 230) would confuse the public. On the other
hand, it has also been the well established practice in this
State for New Jersey firms to continue under the same
firm name upon the death of a named partner. See DR 2-
102(B). Custom in this case therefore compels a different
result, since common understandings prevent deception
where New Jersey firms retain the name of a deceased

partner as part of their firm names. The court below, how-
ever, acknowledges that there may be “some potential for
misleading consumers” in the deceased partner rule (Aa-
B64). Nonetheless, the removal of any possible potential
source of deception is not required by the Constitution
a state may consider one problem at a time, establishing
priorities which appear appropriate in each case. See Wil-
liamson v. Lee Optical, 348 U.S. 483, 489 (1955).°

Even if, as appellant contends, DR 2-102(C) is to be
subjected to strict scrutiny because First Amendment
concerns are implicated, the State’s interest in regulat-
ing the bar and in preventing deception would with-
stand this level of review. See Carey v. Brown, 447
U.S. 455, 461-462 (1980); Police Department v. Mosley,
408 U.S. 92, 98-99 (1972). As amended by the Supreme
Court of New Jersey, the rule is “finely tailored”, Carey
v. Brown, supra, 447 U.S. at 461, to permit Jacoby &
Meyers to associate with New Jersey firms and to ad-
vertise that association. However, commercial speech is,
under the rulings of this Court, “afforded [but] a li-
mited measure of protection, commensurate with its sub-
ordinate position in the scale of First Amendment values.
.. Ohralik v. Ohio State Bar Association, supra,
436 U.S. at 456. See Friedman v. Rogers, supra, 446
U.S. at 10. Because commercial speech relates entirely
to economic interests and not to the more basic interest in
the exchange of ideas in a free and open society, the
Court has refused to apply strict criteria in reviewing
this form of speech. Thus, in considering the applica-
tion of the overbreadth analysis in the context of ordi-
nary commercial speech, Justice Blackmun suggested that

* As noted earlier, oo ome ee oe
of New Jersey is now its report on DR 2-102(C) for
Court’s further consideration of these issues. See supra, pp. 1

11122271
2725
ii : af

i
J

110

RE
ini

DR 2-102(C) is clearly rationally related to an im-
portant state interest; the equal protection claim raised

by the appellant does not warrant review by this Court.

Inwos I. Kimmetmay,
Attorney General of New Jersey,
Atto for Appellee, Supreme Court of
New Jersey
Richard J. Hughes Justice Complex
ON 112,

Trenton, New Jersey 08625.
(609) 984-1053

3 1S shame

Dated: October 4, 1982

APPENDIX A
Rule 1:14 of the New Jersey Court Rules

RULE 1:14. CODES OF ETHICS

The Disciplinary Rules of the Code of Professional Re
sponsibility and the Code of Judicial Conduct of the Ameri-
can Bar Association, as amended and supplemented by the
Supreme Court and included as an Appendix to Part I of
these rules, shall govern the conduct of the members of the
bar and the judges of all courts of this State.

Where appropriate, the words “partnership,” “attorney”
and “lawyers” shall be construed to include professional
corporations for the practice of law, as well as attorney
employees, agents and shareholders thereof, and attorneys
acting as “of counsel” thereto.

Note: Source—R.R. 1:25. Canons of Professional
Ethies of the American Bar Association deleted July
7, 1971 and the Code of Professional Responsibility,
as amended and supplemented, adopted July 7, 1971
to be eifective September 13, 1971; amended Novem-
ber 27, 1974 to be effective April 1, 1975; amended
July 16, 1981 to be effective September 14, 1981.

Ula]

APPENDIX B
Rule 1:19 of the New Jersey Court Rules

RULE 1:19. ADVISORY COMMITTEE ON PRO-
FESSIONAL ETHICS

1:19-1. Appointment and Organization

The Supreme Court shall appoint an advisory com-
mittee on professional ethics consisting of 15 members of
the bar serving for terms of 3 years with the terms of 5
members expiring each year. A vacancy occurring during
a term shall be filled for the unexpired portion thereof.
The court shall annually designate a member of the com-
mittee to serve as chairman. The Administrative Director
or the Courts shall serve as secretary of the committee.

Note: Source—-R.R. 1:26A(a).

1:19-2. Jurisdiction

The committee shall accept inquiries only from the state
bar association, from any county or local bar association,
or from any member of the New Jersey bar, concern-
ing proper conduct for a member of the legal profession
under the Disciplinary Rules of the Code of Professional
Responsibility of the American Bar Association as amended
by the Supreme Court and other rules of this court govern-
ing the practice of attorneys. It shall not consider an
inquiry involving a pending action where its opinion might
affect the interests of the parties, and it may decline to
accept any inquiry without stating its reasons therefor.

Note: Source—R.R. 1:26A(b) (first sentence) (e)
(third sentence), (d) amended April 4, 1977, ef-
fective immediately.

Appendia B
1:19-3. Form of Inquiry

All inquiries shall be addressed to the secretary who
shall transmit them to the committer, They shall be in
writing, shall set out the factual situation in detail, shall
be accompanied by a short brief or memorandum citing
the rules of court or canons of ethics involved and any
other pertinent authorities, and shall contain a certificate
that any opinion of the committee will not affect the in-
terests of the parties to any pending action.

Note: Source—R.R. 1:26A(b) (second and third
sentences).

1194. Disposition of Inquiries

The committee may act through parts consisting of not
less than 5 members, but if the opinion of any such part is
not unanimous the inquiry shall be referred to the com-

be

shall transmit a copy to the person

making the inquiry, and, where the committee so requests,
arrangements for its publication. Pub-

Note: Source—R.R. 1:26A(c) (first, second and
fourth sentences), (e).

4a
Appendia B
1:19-5, Inquiries from Supreme Court
The committee as a whole shall consider and render
opinions on such matters as the Supreme Court may from

time to time submit to it. Such opinions shall not be
published without prior approval of the court.

Note: Source R. R. 1:26A(f).

1:19-6. Effect of Published Opinions

Published opinions of the committee shall be binding
upon the Ethics Committee in their disposition of all mat-
ters.

1:19-7. Procedure

The committee shall, subject to the approval of the
Supreme Court, determine the methods and procedure to

be followed in considering inquiries and expressing opin-
ions.

Note: Source—R.R. 1:26A(g).
1:19-8. Petitions for Review
(a) Notice. Within 20 days after an opinion

blished, or within 30 days after any final action
Advisory Committee on Professional Ethics other

2 *
Fre

FF
|
b
N
F

b
7 8

view thereof by serving on the Attorney General
of petition for review by the Supreme Court and
the original notice with the Clerk of the Supreme

fF

5a
Appendia B
The notice shall set forth the petitioner’s name and address
and, if he is represented, the name and address of counsel.
The notice shall designate the action of the Advisory Com-
mittee on Professional Ethics sought to be reviewed and

shall concisely state the manner in which the petitioner is
aggrieved.

(b) Deposit for Costs. Deposit for costs shall be made
in accordance with R. 2:12-5.

(e) Record on Petition for Review. If the petition for
review is granted, the record on review shall be the formal
opinion, if any, issued pursuant to R. 1:19-4 or R. 1:19-5,
the inquiry, brief or memorandum submitted, and any docu-
ments or other evidence or proof relied upon by the Ad-
visory Committee on Professional Ethics in arriving at its
determination.

(d) Form of Petition for Review. A petition for re-
view shall be in the form of a brief, conforming to the
applicable provisions of R. 2:6 and not exceeding 15 pages
if printed or 20 pages if otherwise reproduced or typed,
exclusive of tables of contents, citations and appendix.
It shall contain a short statement of the matter involved,
the question presented, the errors complained of and the
arguments in support of the petitioner’s position. It shall
also contain a certification by the petitioner or counsel, if
any, that the petition presents a substantial question and

filed in good faith and not for purposes of delay.

is
(e) Service and Filing of Petition for Review. Within
10 days after filing of the notice of petition for review, 2
shall be served on the Attorney
General and the Secretary of the Advisory Committee

i
—
1
:

on Professional Ethics and 9 copies thereof shall be filed

with the Clerk of the Supreme Court.

K,
il
—

Note: Adopted April 4, 1977 to be effective im-
mediately.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0482%3A3. Public record. Not legal advice.