Jurisdictional Statement — Humphrey v. Committee on Professional Ethics & Conduct of the Iowa State Bar Ass'n

ie cher gr ae EVES ASE ee foe ee ae

85- “1943

No. 85-

"pupreme Court ofthe Hated States

OcTOBER TERM, 1985.

Marx A. HuMPBREY AND FRepp J. HAAS,

d/b/a HumpuHrey & Haas,

Appellants,

v.

COMMITTZE ON PROFESSIONAL’ETHICS AND CONDUCT -

OF THE Iowa STATE BAR ASSOCIATION,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF IOWA

JURISDICTIONAL STATEMENT

MaRK W. BENNETT CHARLES A.

BamicH, BENNETT & _ Davp H.

NICKERSON Covineton & BURLING

5835 Grand Ave. 1201 Pennsylvania Ave., N.W.

Suite 202 P.O. Box 7566

Des Moines, lowa 50312 . Washington, D.C. 20044

Cuaries S. Sas | (202) 662-6000

UNtoN FOUNDATION

132 West 43d St.

New York, N.Y. 10036

Counsel for Appellants

February 11, 1986 *Counsel of Record

| GURaT ONS PRESENTED

1. Do the standards lished by this Court under the

First Amendment Tegulating lawyer advertising apply

to advertising on ion? :

2. Are Iowa’s rules banning “dramatic” voices and

“self-laudatory” statements in lawyer advertising imper-

missibly vague, on their face or as applied?

(i)

TABLE OF CONTENTS

UNSC MEY EAI a soc Sere ect eesccaees

ens nce an oe cos $084 44.000 oko o>

CONSTITUTIONAL PROVISIONS AND |

RUE UNVOLVED . cise itis ieee. ee.

2. The Complaint and Answer PE JEED. CSTW

3. The Evidentiary Hearing ..................

4. The lowa Court’s Initial Decision ...........

5. The Iowa Court’s Decision on Remand ......

THE QUESTIONS ARE SUBSTANTIAL .......

A. The Ban on Dramatization Violates

the First Amendment on Its Face

NN ie as. sac ae

B. The Ads Here Were Not Potentially

Misleading “In the Medium

Defendants Chose” .....................-.

C. The Ban on “Dramatic” Voices and

“Self-Laudatory” Statements also Violates

the First Amendment ..:..................

SRA oss on ss os ACRES HiT

(Appendices Are Separately Bound)

(iii)

14

18

20

21

TABLE OF AUTHORITIES

CASES: Page

Bates v. State Bar, 433 U.S. 350 (1977) ...... passim

_ Capital Broadcasting Co. v. Mitciell,

333 F. Supp. 582 (D.D.C. 1971) (3-judge

court), aff'd mem., 405 U.S. 1000 (1972) LS 18

FCC v. Pacifica Foundation, — ,

fee ee ee 17

FTC v. Colgate-Palmolive Co., |

380 U.S. 374 (1965) ..............500ee 16

In re Primus, 436 U.S. 412 (1978) .......... 14, 16

In re R.M.J., 455 U.S. 191 (1982) .......... 14

Linmark Associates, Inc. v. Township of

Willingboro, 431 U.S. 85 (1977) ......... 15

Ohralik v. Ohio State Bar Ass'n,

436 U.S. 447 (1978) .. 0.2.0... cece eee 14

Thomas v. Collins, 323 U.S. 516 (1945) ..... 16

Zauderer v. Office of Disciplinary Counsel,

BOS S. CK ZR Ceee oS eves ccc ccc cecee's passim

CONSTITUTIONAL AND

STATUTORY PROVISIONS:

FE ee Se ree _ passim

U.S. Const., Amend. XIV,§ 1 ............ passim

p FES Foe ce er rr ere 1

Pe re EE ais dco v cv cccscccerss'’s 1

Ala. Temp. DR 2-102(B) ................. 15

Alaska DR 2-101(D) ..........-.-..eeeee- 15

PTR te Beek cee ccc deeece 15

ec ececeneaeveeuese 15

i EE occ cc sec eveccwesevertes 15

CU EE IEEE 5 oc ce ccccccdccscecns 15

BO Ws FUE ov ik oes cece ccesccceseses 15

ROM Sie PUNE bcc icccccccceccucisens 15

(iv)

pe x Wie ae Ser Pal RI EE BS

Fla. DR 2-101(D) ...........0.0......00048.

Ga. R. 4-102, Stand. 7(B) ....:...........

-Hawaii DR 2-i01(D) ....................

i Me MI a ooo vine s ope csc vive ccwenn

st aa eens

Kan. DR 2-101(B) .......................

Ky. SCR 3.135(6)(a)fii) ..................

Me. R. 3.9(d) ..

Minn. R. 7.2(b)

eer ere eve eeeeeeeeeeeeeeeeene

Miss. DR Z-IOUG) 0.5. oc eee cece ccs

Mo. R. 7.2(b) Basa CUE Ke wb ewe os Fees See ees

oe ee ee ee eee

Neb. DR 2-101(B) ... 2.0.0.0... ceceeee eee

Nev. R. 164(3) .

N.H. R. 7.2(b)

N.J. RPC 7.2(a)

eeervoeaoeeascevneec eee eeceeeeeveseeane

eeeeveseeevee ee eevee eeeeeer

N.M. DR 2-101(D) ... 0... 2. eee

N.Y. DR. 2-101(F) ........ Week aVU Sieve

N.C. R. 2.2(B)

eeee sie eceeeeeeesteoeeeese eee

N.D. DR2-101(D) ........ swil lactaee.

Ohio RDIGHD) .. «8... cece... :

Okin: DA2-100@) <<... 5... e. checks

Or. DR 2-101(C)

eeseseeveeveeseeeeeveevee eee ees

S.C. DR 2-101(D)(1)_ ... 2. eee

PRE IIIOID s oie oko cbc ccccccccccece

Tenn. DR2-101)(F) .....................

TOR EO ne ow vec cc cu ecccne

Utah DR 2-101(A)(2). ............00000....

Vt. DR 2-101(B)

Va. DR 2-101{B)

MERE ws sn tawaces steers

COOSA @ ee gegeeéeeé Ge 0-6 © 408 0 6

bef OS ae

fh St ee ee

WW FO Be NID gic go ok cc cnc couccce,.

=

MISCELLANEOUS: ©

ABA Model Code of Professional

Responsibility ©

TD so a A pene

DR2-101(D) ...... pode ¥itiav ees

ABA Model Rules of Professional

Access to Legal Services: The Case

for Removing Restrictions on

- Truthful Advertising (Nov. 1984) ........

TvB News, Sept. 27. 1985 .........050055:

13

° IN THE

Supe cint let 06 the Bertted States

OcrToser TERM, 1985

No. 85-

Mark A. HUMPHREY AND FREDD J. HAAS,

d/b/a Humpurey & Haas,

Appellants,

v.

COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT

OF THE IOWA STATE Bar ASSOCIATION,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF IOWA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The Iowa Supreme Court’s initial opinion in this case

(App. la-248) is reported at 355 N.W.2d 565. Its opinion

_ on remand from this Court (App. 25a-55a) is reported at ‘

377 N.W.2d 643. :

JURISDICTION |

_ The'judgment of the lowa Supreme Court, embodied in

~ its opinion (App. 25a), was issued on November 13, 1985.

_ A notice.of appeal to.this Court (App. 56a) was timely fil- |

ed on November 20, 1985. This Court’s jurisdiction is in- ee

voked under 28 U.S.C. § 1257(2). Insofar as any of the !

questions presented may properly be here on certiorari

rather than appeal, this Court’s jurisdiction is invoked oo |

’ under 28-U.S.C. § 1257(3). — ; |

2

CONSTITUTIONAL PROVISIONS |

AND RULES INVOLVED

U.S. Const., Amend. I:

“Congress shall make no law . . . abridging the

freedom of speech, or of the press... .”

U.S. Const., Amend. XIV, § 1:

“tNJor shall any State deprive any person of life,

liberty, or property, without due process of law.”

DR 2-101 of the Iowa Code of Professional Respon-

sibility for Lawyers is set forth in Appendix D (App.

58a-65a).

STATEMENT

This case involves the scope of a state’s power under the

First Amendment to restrict lawyer advertising on televi-

sion. The controversy centers on DR 2-101(B) of the Iowa

Code of Professional Responsibility for Lawyers, which

permits lawyers advertising on television to display only

what may appear in a printed advertisement; the only

sound allowed is the “nondramatic” voice of an announcer

reading the message that is displayed. Other than in il-

lustrations or photographs, no one may appear on screen.

The lawyer himself may not address his audience.'

! DR 2-101(B) currently provides that information allowed in print

advertisements may be communicated by radio or television,

“articulated only by a single nondramatic voice, not that of

the lawyer, and with no other background sound. . . . In

the case of television, no visual display shall be allowed ex-

cept that allowed in print as articulated by the announcer.”

(App. 59a.) )

Prior to amendments to the rules issued by the lowa Supreme Court

on November 8, 1985, lawyers were forbidden to use illustrations or

pictures in print advertising, and could display “words and numbers

only” in television advertising. Under the rules as amended, it appears

that lawyers advertising on television may display illustration and

3

The Iowa Supreme Court in September 1984 enjs.ned

the appellants from airing advertisements that contravene

DR 2-101, and sustained the rule against First and Four-

teenth Amendment challenge. This Court in June 1985

vacated the Iowa court’s judgment (105 S. Ct. 2693) and

remanded the cause for further consideration in light of

Zauderer v. Office of Disciplinary Counsel, No. 83-2166

(May 28, 1985). On remand, the Iowa court in November

1985 reaffirmed its initial decision, “find{ing] nothing in

the Zauderer holding at variance with our prior decision.”

(App. 26a.)

1. The Advertisements

Over a three-day period in early September 1982, the

law firm of Humphrey, Haas & Gritzner aired three adver-

tisements over WHO-TV in Des Moines, Iowa. The first

ad featured an actor and actress portraying a physician

and a nurse in an examination room. While the nurse

looked at an X ray, the doctor addressed the viewer:

“We see first-hand injuries caused by the neglect

of others. If you’re seriously injured through the

negligence of others, you should be talking to a.

lawyer. The choice of a lawyer could be impor-

tant. That’s something to think about.”

The second ad featured an actor portraying a printer.

Standing in front of a printing press, he addressed the

viewer:

“I suffered ioss of wages, incurred staggering

medical bills and endured pain and suffering al!

through the negligence of others. I wasn’t aware

of my legal rights. I should have been talking to a

lawyer.”

A

pictures; but the use of live action and background sound — the crux of

the controversy in this case — remains forbidden.

4

The third featured two actors portraying bowling part-

ners. The following conversation took place at the lanes:

“Bowler #1:

Bowler #2:

Bowler #1:

Bowler #2:

Bowler #1:

I’ve got to throw like that today,

we’re one man short.

He was injured through the negli-

gence of others.

He should be talking to a lawyer.

The choice of that lawyer will be

important.

That’s something to think about.”

After the dramatization, the scene in each ad shifted to

the reception area of a law office, with an actress portray-

ing a receptionist. As the name, address, and phone num-

ber of the firm were superimposed on this picture, an off-

camera announcer said:

“If you’re injured through the negligence of

others, call the law firm of Humphrey, Haas &

Gritzner. Cases involving auto accidents, work

comp, serious personal injuries and wrongful

death handled on a percentage basis. No charge

for the initial consultation. Call now at 288-

0102.”

2. The Complaint and Answer

The three ads were scheduled to run four days a week

for 47 weeks. (Tr. 25.)? After three days on the air, how-

ever, they were discontinued by the station at the request

of the Committee on Professional Ethics and Conduct of

the Iowa State Bar Association. (Tr. 29.) The Committee

then brought an original action in the Iowa Supreme

Court against Humphrey, Haas & Gritzner, alleging that

2 “Tr.” refers to the transcript of the evidentiary hearing ordered by

the lowa Supreme Court in this case. See pp. 6-8, below.

5

their ads violated DR 2-101 of the lowa Code of Profes-

sional Responsibility for Lawyers because they

“contain more than a single nondramatic voice,

have background sound and visual displays of

two or more people characterizing themselves as

clients which make laudatory comments as to

Defendants’ services.” Petition 4 7 (App. 72a).3

The Committee asked that the lowa Supreme Court per-

manently enjoin the lawyers from airing the ads in ques-

tion or any other ads that violate the Code (App. 73a-74a);

meanwhile, it initiated a disciplinary investigation of

Humphrey and Haas, which has been stayed pending dis-

position of this action.4 On September 14, 1982, the lowa

Supreme Court, on the Committee’s ex parte application,

enjoined Humphrey and Haas from airing their ads pend-

ing further proceedings. (App. 81a-82a.)

Humphrey and Haas did not dispute that their ads

used more than a single voice and contained background

sound and visual displays. But, seeking both to defend

against the requested injunction and to invalidate the rule

on its face, they urged that DR 2-101’s restrictions of law-

yer advertising violate the First and Fourteenth Amend-

ments, both facially and as applied; and they urged that

3In addition to DR 2-101(B)’s ban on dramatization (App. 59a),

DR 2-101(A) prohibits “self-laudatory” statements in lawyer advertis-

ing (App. 58a). The Committee alleged that the ads also violated DR

2-105 (App. 65a-70a), which, at the time, allowed lawyers advertising

in print to list not more than three fields of practice and required that

such listings be accompanied by a disclaimer of expertise. Petition ¢ 8

(App. 72a). Because of subsequent amendments to the rules, the Iowa

court’s judgment on remand does not present any question under DR

2-105.

4 Committee on Professional Ethics and Conduct, /n re Humphrey,

Haas & Gritzner, File No. 8283-53 (notice of complaint issued

September 16, 1982). After the Committee commenced its action,

Gritzner withdrew from the firm and was dismissed as a defendant.

i ian eam ecm Ei

6

the rule’s ban on the use of “dramatic” voices and “self-

laudatory” statements is impermissibly vague. (App.

76a-80a.)

3. The Evidentiary Hearing

Two weeks after the lowa Supreme Court entered its in-

junction, it appointed a commissioner to conduct an evi-

dentiary hearing and to prepare a written summary of the

evidence. (App. 83a.) Following discovery, the hearing

was held, and the commissioner’s summary was filed with

the court on November 16, 1983. (App.85a.) The eviden-

tiary hearing focused entirely on the state’s justification

for DR 2-101’s prohibition of dramatization in lawyer ad-

vertising on television, and on the supposedly objection-

able characteristics of the three ads.

The Committee’s principal justification for DR 2-101’s

prohibition was that dramatization may appeal to a view-

er’s “emotions,” interfering with “rational” choice, and

that dramatization is “unnecessary” to convey pertinent in-

formation. Former Justice Robert Allbee, who was a

member of the Iowa Supreme Court when it adopted DR

2-101(B), explained that the likely viewers of such ad-

vertising “are ordinarily of a lower intellectual category

and they are less able to make an objective conclusion

from something that is passed by them in dramatic form.”

(Tr. 95.)5

$In addition to “prevent{ing] purely emotional reactions or emo-

tional impact in the selection of lawyers” (Tr. 86-87), Justice Allbee

testified that the ban was intended “to guard the public against decep-

tion either inadvertent or intended, and in turn to protect the trust and

the integrity that we want the public to have in the legal profession.

That the public not obtain the view that merchandising legal services is

like merchandising vintage wine.” (Tr. 87; see App. 89a.)

The Committee made no claim that the ads were in fact

false, deceptive, or misleading. To the contrary, Dr.

Richard Haynes, an expert retained by the Committee, tes-

tified that he saw nothing inherently misleading or decep-

tive in the use of dramatization (Tr. 210-12; see App. 91a),

and that the ads in question had not been perceived as mis-

leading or deceptive by a group of viewers paid by him to

watch them. (Tr. 210, 258; see App. 90a.) He affirmed

that dramatization is effective precisely because it “in-

volve[s] and interest[s] the viewer” (Tr. 276); indeed, he

found that 75 percent of the viewers paid to watch the ads

rated them a fair-to-excellent way of educating viewers

about their rights. (Tr. 265.)

The Committee’s counsel sought to elicit testimony that

dramatization in television advertising can generate an ex-

aggerated sense of need for a lawyer’s services, and can im-

ply distinctions between lawyers that are no more genuine

than the distinctions between name-brand and generic as-

pirin. But none of the evidence suggested that any such ef-

fects are either inherent in or peculiar to dramatized televi-

sion advertising. Nor was there any evidence that the ads

here caused such effects or that such effects, if they were

to occur, would distort consumer choice. The defense pre-

sented extensive testimony that. lawyer advertising does

not create a need for legal services and that a consumer’s

exercise of choice is inevitably more deliberate in hiring a

lawyer than in purchasing bathroom tissue. (E.g., Tr. 335,

618-19, 699.)

The Committee did not controvert the extensive defense

evidence that dramatization is critical for effective televi-

sion advertising. The evidence demonstrated, to the con-

trary, that dramatization enables advertisers to capture the

viewer’s attention (e.g., Tr. 378, 562, 686), causes the

viewer to remember the message being conveyed (e.g., Tr.

281, 379, 712), and “break[s] down the barrier that exists

between the public and lawyers” (Tr. 457). The Committee

offered no evidence to rebui the testimony of defense wit-

nesses that ads conforming to the restrictions of DR 2-101

are more likely to mislead viewers than dramatized ads

precisely because they look /ess like ads than those em-

ploying dramatization. (F.g., Tr. 688, 690-91, 754.)

Lori Andrews, research attorney for the American Bar

Foundation and former staff director of the ABA Com-

mission on Advertising, testified that more than 40 states

permit lawyer advertising on television using dramatiza-

tion, visual displays, background sounds, and the like.

(Tr. 330-31; see App. 91a.) She pointed out that DR 2-101

contains independent prohibitions against false, deceptive,

and misleading statements or claims in lawyer advertising

(Tr. 334), and she noted that the trend is simply to forbid

such statements or claims, and to permit ads of the type

aired in this case. (Tr. 332; see App. 92a.)®

® As of January 1986, five other states — Kansas, New Jersey, Ver-

mont, West Virginia, and Wyoming — had on their books television

advertising restrictions comparable to lowa’s or more severe. See Kan.

DR 2-101(B); N.J. RPC 7.2(a); Vt. DR 2-101(B) & (D); W. Va. DR

2-101(B); Wyo. DR 2-101(B). Amendments that would relax these

restr:.iions are under consideration in Kansas and West Virginia.

Rule 7.2(a) of the ABA’s Model Rules of Professional Conduct per-

mits lawyer advertising through any public media, including televi-

sion, so long as it is not false or misleading and does not involve

“solicitation.” DR 2-101(B) of the ABA’s Model Code of Professional

Responsibility also permitted lawyer advertising on television, without

special restrictions based on the lawyer’s choice of medium. The

ABA’s Comment on Madel Rule 7.2(a) states:

“Television is now one of the most powerful media for get-

ting nabs ae to the public, particularly persons of low

=e

~*~,

9

4. The Iowa Court’s Initial Decision

Notwithstanding this record — or the views of the

Federal Trade Commission, which filed an amicus brief

supporting Humphrey and Haas’ — the Iowa Supreme

Court in September 1984 sustained the restrictions sought

to be enforced by the Committee and enjoined Humphrey

and Haas from airing the ads in question. Disclaiming any

suggestion “that the advertisements here were deceitfut”

(App. Ila), the court nevertheless enjoined them from be-

ing aired on the strength of DR 2-101. It rejected Hum-

phrey and Haas’ contention that the rule’s blanket ban on

dramatization is “more extensive than necessary” to serve

any substantial state interest. “All that is prohibited,” the

Or moderate income; prohibiting television advertising,

therefore, would impede the flow of information about

legal services to many sectors of the public. Limiting the

information that may be advertised has a similar effect and

assumes that the bar can accurately forecast the kind of in-

formation that the public would regard as relevant.”

ABA’s Model Rules of Professional Conduct, reprinted in ABA/BNA

LAWYERS’ MANUAL ON PROFESSIONAL CONDUCT, p. 01:166 (1985).

” The FTC stated, among other things, that “[t]he use of dramatiza-

tions containing characterizations, visual displays and background

sound can provide a truthful, non-deceptive and effective means of

conveying important information about legal rights and the availabil-

ity and cost of legal services.” FTC amicus brief at 15 (emphasis add-

ed). In November 1984, the Staff of the FTC’s Cleveland Regional Of-

fice and the FTC’s Bureau of Economics issued a report concluding

that content-based and media-based restrictions on lawyer advertising

inhibit the extent of advertising and result in significantly higher prices

for legal services. Improving Consumer Access to Legal Services: The

Case for Removing Restrictions on Truthful Advertising 126-27 (Nov.

1984). Its recommended approach is even more tiberal than the ABA’s

Model Rule 7.2. See id. at 150-53, 156-57.

court stated, “are the tools which would manipulate the

viewer’s mind and will.” (App. 13a.)8

The court also relected Humphrey and Haas’ contention

that DR 2-101’s ban on “dramatic” voices and “self-

laudatory” statements is impermissibly vague. It did so

merely by remarking that the phrase “nondramatic voice”

is “a simple [one] which we think is commonly under-

stood” (App. 14a), and by noting that “[t]he dictionary

meaning of ‘laudatory’ is ‘expressing praise.’ ” (/d.)

Two justices dissented, finding it “undisputed that the

effect of these limitations on technique is to substantially

diminish the effectiveness of any television advertising.”

(App. 15a.) The dissenters stressed that the Committee’s

own expert had testified that dramatization is not in-

herently misleading, and that the ads in fact were not

misleading to the survey group. (App. 16a.) They disputed

the majority’s conclusion that “because television is the

medium, a mere chance of deceit is sufficient” to sustain

the restrictions at issue. (App. 17a.) They pointed out that

this Court’s statements recognizing the value of fostering

rational, intelligent, and voluntary decisionmaking were

meant “to expand the scope of lawyer advertising, not to

throttle it.” (App. 21a.)

*The court also seemed to accept the Committee’s assertion —

made for the first time in its brief but without support in the eviden-

tiary record — that, “in the medium defendants chose,” the ads could

“mislead people into believing that pursuing the listed cases is a cost-

free venture,” and might cause some viewers to infer that Humphrey

and Haas were more experienced than they in fact were. (App. 11a.)

The court did not explain how “the medium defendants chose” was

responsible for either supposed misrepresentation, or on what basis

the court accepted the Committee’s claims.

1]

5. The lowa Court’s Decision on Remand

Humphrey and Haas sought review of the lowa Supreme

Court’s September 1984 decision and on June 10, 1985,

this Court vacated the Iowa court’s judgment (105 S. Ct.

2693) and remanded the case for further consideration in

light of Zauderer v. Office of Disciplinary Counsel, 105

S. Ct. 2265 (1985).2 On remand, Humphrey and Haas

argued that the logic of this Court’s decision invalidating

Ohio’s blanket ban on illustrations in print advertising ful-

ly applied to bans on dramatization in broadcast advertis-

ing — that a generalized fear of audience “manipulation”

could no more justify “broad prophylactic rules” here than

in Zauderer and that, as there, the possibility of policing

abuses on a case-by-case basis made the prophylactic ap-

proach taken by Iowa untenable. See Zauderer, 105 S. Ct.

at 2280-81.

Nevertheless, the Iowa court reaffirmed its initial deci-

sion sustaining DR 2-101(B), “find[ing] nothing in the

Zauderer holding at variance with our prior decision.”

(App. 26a.) The Iowa court reaffirmed its view that the

‘manipulative capabilities of electronic media advertising

justified the prophylactic approach embodied in DR 2-101

(B), and ii suggested that the potential use of television for

“crass personal promotion” by lawyers eager “to improve

their image” also justified the rule’s proscriptions. (App.

31a-33a.) The only “harm” that it identified in discuss-

ing the manipulative capabilities of Humphrey and Haas’

ads, however, was the possibility that some viewers might

9 Justice Rehnquist and Justice O’Connor would have noted prob-

able jurisdiction and set the case for oral argument. 105 S. Ct. 2693.

12

be prompted to “grab the phone and make a call” without

giving the matter sufficient reflection. (App. 3la.)!°

Justice Larson, joined by Justice McCormick, again

dissented. He noted, among other things, that problems of

policing could be met “by requiring copies of a telecast or

broadcast to be kept for a specified period of time,” as

several states require, and as ABA Model Rule 7.2(b) pro-

vides (App. 48a), and he stressed the state’s lack of jus-

tification for its “outright ban” on dramatization (App.

50a). “A prophylactic rule, aimed at preventing possible

abuses in some cases by imposing a ban for all cases, has

been reiected by the Supreme Court.” (App. 49a, citing

Zauderer.)''

Although the majority went out of its way to “deny that

[its] rule amounts to a blanket ban, in the sense proscribed

by Zauderer” (App. 33a), the rule — and the court’s deci-

sion sustaining it — have effectively outlawed television

advertising by lawyers in Iowa.!?

'© The court lost only one member of its original majority, Justice

Uhlenhopp, who concluded that “the rules which defendants challenge

cannot stand” in light of Zauderer. (App. 43a.) Chief Justice

Reynoldson, coricurring specially, condemned Zauderer itself for “en-

danger[ing] the capability of the courts to identify and dislodge lawyer

print advertising that is false, deceptive, or misleading.” (App. 41a.)

Although he complained that state courts lack the resources to police

“dishonest scams” even in the print media (App. 36a), he did not ad-

dress the fact that at least 44 states permit what DR 2-101(B) forbids.

''Much of Justice Larson’s dissent attacks a provision of DR

2-101(A) deleted by the court in an order entered five days before its

opinion on remand was issued — a proviso forbidding lawyers to com-

municate any information not “specifically permitted” by rule. The

questions presented by such a restriction, which Humphrey and Haas

raised in their initial appeal in this case, are no longer live.

'2See Affidavit of Norton C. Frickey, II, ¢ 6 (App. 97a-99a),

prepared after the entry of the Iowa court’s judgment on remand. Mr.

Frickey, vice-president of the company that produced the television

13

THE QUESTIONS ARE SUBSTANTIAL

The Iowa Supreme Court has treated this case as though

all of the rules that this Court has established for lawyer

advertising in the print media are inapplicable simply be-

cause this case involves television. But television is “one of

the most powerful media for getting information to the

public” (ABA Com :nt on Model Rule 7.2(a)), and noth-

ing in this Court’s .. ses suggests that merely because this

medium is involved all First Amendment bets are off.

There may be characteristics of the electronic media that

warrant special treatment, but none of the differences be-

tween television and other media support the broad pro-

phylactic restriction upheld here. Based on nothing more

than unsubstantiated fears of audience manipulability and

concerns that the medium might be misused, lowa has

drastically and gratuitously limited the effective use of

television by lawyers. The state may not be reconciled to

the standards announced by this Court in its lawyer adver-

tising cases or in its commercial speech cases generally;

but judged by those standards, Iowa’s rule — both on its

face and as applied — is clearly unconstitutional. For this

reason, and for the other reasons discussed below, the

lowa court’s judgment cannot stand.

ads at issue in this case, polled the 14 largest television stations in lowa

this January and confirmed that there is virtually no television adver-

tising by lawyers in the state. Three of the stations that he polled

specifically cited DR 2-101(B) and the lowa Supreme Court’s decision

as the reason. Meanwhile, according to a September 1985 report by

the Television Bureau of Advertising, lawyers spent $28.2 million on

television advertising nationwide in 1984 — a 58 percent increase over

the previous year — and their spending increased by one-third in the

first half of 1985. TvB News, Sept. 27, 1985, p. 1.

14

A. The Ban on Dramatization Violates the First

Amendment on Its Face and as Applied

In sustaining DR 2-101(B)’s rétriction on lawyer adver-

tising on television to displays of what may appear in a

printed advertisement, accompanied only by an off-screen

“nondramatic” voice, the lowa court disobeyed the teach-

ings of this Court’s lawyer advertising cases, Zauderer,

supra; In re R.M.J., 455 U.S. 191 (1982); Ohralik v. Ohio

State Bar Ass’n, 436 U.S. 447 (1978); In re Primus, 436

U.S. 412 (1978); Bates v. State Bar, 433 U.S. 350 (1977).

Those cases teach that a state may impose prophylactic re-

strictions on lawyer advertising only “where the particular

advertising is inherently likely to deceive or where the

record indicates that a particular form or method of ad-

vertising has in fact been deceptive” (R.M.J., 455 U.S. at

202), and “the potential abuses . . . cannot be combatted

by any means short of a blanket ban.” Zauderer, 105 S.

Ct. at 2281. See Ohralik, 436 U.S. at 466; R.M.J., 455

U.S. at 203, 206-07.

There is no claim that the ads here were false, mislead-

ing, or deceptive. To the contrary, the Committee’s expert

witness specifically testified that the ads were not in fact

misleading or deceptive, and the Iowa Supreme Court it-

self disclaimed any suggestion “that the advertisements

here were deceitful.” (App. 1la.)'? The Committee’s ex-

pert testified, moreover, that he found nothing inherently

'3 The only actua! “harm” that the lowa court identified was the

possibility that the dramatization in Humphrey and Haas’ ads might

prompt some viewers to “grab the phone and make a call” without giv-

ing the matter due reflection. (App. 31a.) Even if this were so, it could

not justify a ban on a means of expression shown to be so critical in at-

tracting viewer attention. Viewers would not call Humphrey and Haas

“merely to ascertain if they have a clean bill of legal health.” Bares,

433 U.S. at 374.

15

misleading or deceptive in the use of dramatization, and

he conceded that dramatization is effective in television

advertising precisely because it “involve[s] and interest[s]

the viewer.” (Tr. 276.) Thus, the question presented is

whether the state may enforce a prophylactic rule to enjoin

Humphrey and Haas from airing their ads on the theory

that other dramatized television ads might be deceptive.

As Zauderer confirmed, however, the First Amendment

permits no such prophylactic rule.

The Iowa Supreme Court upheld DR 2-101(B)’s prohibi-

tion on the basis of its unsubstantiated belief that televi-

sion dramatization “manipulate[s] the viewer’s mind and

will” — despite this Court’s admonition that “commercial

speech cannot be-banned because of an unsubstantiated

belief that its impact is ‘detrimental.’ ” Linmark Asso-

ciates, Inc. v. Township of Willingboro, 431 U.S. 85, 92

n.6 (1977); Bates, 433 U.S. at 374-75. Although it hinted

that it considers the task of policing electronic media ad-

vertising unmanageable (App. 30a-3la & n.2), it offered

no “evidence or authority” for this view (Zauderer, 105 S.

Ct. at 2281); and the practice of the other states — and the

approach embodied in the ABA’s Model Rule 7.2 (b) —

belies this concern.'* In striking down Ohio’s illustration

'* At least 36 states require lawyers to retain copies of the ads they

air and some require lawyers to make these copies available to state

authorities after airing. See Ala. Temp. DR 2-102(B); Alaska DR

2-101(D); Ariz. ER 7.2(b); Ark. R. 7.2(b); Cal. R. 2-101(E); Colo. DR

2-101(D); Del. R. 7.1(c)(3); D.C. DR 2-101(D); Fla. DR 2-101(D): Ga.

R. 4-102, Stand. 7(B); Hawaii DR 2-10i(D); Ill. R. 2-101(e); Ind. DR

2-101(E); Ky. SCR 3.135(6)(a)(ii); Me. R. 3.9(d); Minn. R. 7.2(b);

Miss. DR 2-101(D); Mo. R. 7.2(b); Mont. R. 7.2(b); Neb. DR

2-101(B); Nev. R. 164(3); N.H. R. 7.2(b); N.M. DR 2-101(1); N.Y.

DR 2-101(F); N.C. R. 2.2(B); N.D. DR 2-101(D); Ohio DR 2-101(D);

Okla. DR 2-102(B); Ore. DR 2-101(C); S.C. DR 2-101(D)(1); S.D. DR

2-101(D); Tenn. DR 2-101(F); Tex. DR 2-101(E); Utah DR

2-101(A)(2); Va. DR 2-101(B); Wash. RPC 7.2(b). See also ABA

Model Code DR 2-101(D).

16

ban in Zauderer, this Court in fact cited a television case

for the proposition that advertising abuses in “the visual

media” may be, and therefore must be, policed on a case-

by-case basis. 105 S. Ct. at 2281 (citing FTC v. Colgate-

Palmolive Co., 380 U.S. 374 (1965)).'°

The lowa court may have upheld DR 2-101(B) on the

supposition that the likely viewers of lawyer advertising on

television “are ordinarily of a lower intellectual category

and [thus] less able to make an objective conclusion from

something that is passed by them in dramatic form.” (See

p. 6, above.) But this Court has squarely rejected re-

strictions premised on the assumption “that the public is

not sophisticated enough to realize the limitations of ad-

vertising.” Bates, supra, 433 U.S. at 374-75. It has refused

to restrict lawyer advertising when the restriction “rests on

an underestimation of the public.” Jd. “If the naivete of

the public will cause advertising by attorneys to be

misleading, then it is the bar’s role to assure that the popu-

lace is sufficiently informed as to enable it to place adver-

tising in its proper perspective.” Jd. at 375. -

Nor is there any foundation in the First Amendment for

justifying DR 2-101(B)’s ban on the ground that dramati-

zation appeals to the “emotions” rather than “reason.” !6

1S The lowa court’s concern that dramatization may facilitate “crass

personal promotion” by lawyers (App. 32a-33a) is likewise insufficient

to sustain DR 2-101(B)’s ban. This Court rejected a comparable

justification in Bates, 433 U.S. at 368-72, and in any case the siaitc

does not need a blanket ban on dramatization to avoid the specific

form of promotion with which the majority seemed to be concerned

— celebrity endorsements.

16 DR 2-101(A) includes a separate injunction against lawyer adver-

tisements that “appeal to the emotions” (App. 58a), whatever this

phrase may mean. Cf. Thomas v. Collins, 323 U.S. 516, 535 (1945);

Primus, 436 U.S. at 431-32. ~

17

As the evidence in this case demonstrates, drama can facil-

itate effective communication by Capturing a viewer’s

attention through a personal appeal to the viewer’s needs

— an approach that the lowa court condemned as “manip-

ulative” — while viewers may be more easily misled by

advertising that purports to be “objective” than by adver-

tising that makes no™secret of its commercial aims.

Dramatization, like the use of illustrations or pictures in

Zauderer, “serves important communicative functions: it

attracts the attention of the audience to the advertiser’s

message, and it may also serve to impart information

directly.” 105 S. Ct. at 2280. The Iowa Supreme Court

believed that DR 2-101(B) draws a permissible line “be-

tween what informs the public and what promotes the law-

yer” (App. 12a), but as Justice Larson observed in dissent,

the rule is in fact “a prescription for dullness” — one that

“substantially diminish[es] the effectiveness of any televi-

sion advertising” (App. 15a).

The Iowa court, both in its initial decision (App. 9a-

10a), and in its decision on remand (App. 29a-30a), in-

voked this Court’s admonition that “the special problems

of advertising on the electronic broadcast media will war-

rant special consideration.” Bates, 433 U.S. at 384. See

also Zauderer, 105 S. Ct. at 2294 n.1 (O’Connor, J.).

Reliance on this admonition was misplaced here. Al-

though the broadcast media undoubtedly have “estab-

lished a uniquely pervasive presence” in our lives, FCC v.

Pacifica Foundation, 438 U.S. 726, 748 (1978), this alone

cannot justify special restrictions on otherwise, protected

commercial speech. This is not a case in which a restriction

on advertising in the electronic media can be justified by

the government’s interest in protecting innocent young

minds (compare Pacifica), or on the ground that the prod-

uct being advertised is itself reputedly harmful (compare

18

Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582

(D.D.C. 1971) (3-judge court), affd mem., 405 U.S. 1000

(1972)). Whatever the Iowa court may believe about the

manipulative capabilities of television advertising, there is

simply no support in the extensive record in this case — in

fact, the Committee’s own evidence is to the contrary —

that the use of dramatization in television advertising by

lawyers is inherently misleading or deceptive so as to jus-

tify a complete prophylactic proscription.

B. The Ads Here Were Not Potentially Misleading

“In the Medium Defendants Chose”

Humphrey and Haas also seek review of the Iowa

court’s conclusion that, “in the medium defendants chose,”

their ads were potentially misleading with respect to cost

and quality of service. (App. 11a.) First, the court offered

no support (and the record contained none) for its conclu-

sion that the ads could well “mislead people into believing

that pursuing the listed cases is a cost-free venture” (App.

10a-11a); nor did the court supply any explanation for its

view that television was responsible for this supposed

deception.'’ Second, nothing in the ads overstated Hum-

phrey and Haas’ qualifications in the fields of practice

they listed; at most, the ads implied that they were

'7We do not question Iowa’s power to require appropriate

disclosures where, as here, lawyers offer to handle cases on a “percent-

age basis.” See Zauderer, 105 S. Ct. at 2282. But as Justice Larson

noted in his initial dissent (App. 19a), no such disclosures are required

under Iowa’s rules. The rules, as they stood when Humphrey and

Haas aired their ads, required only that lawyers offering to handle

cases on a “contingent-fee” basis indicate whether fees are computed

“before or after deduction of costs,” and Humphrey and Haas were

not charged with violating the rule requiring such a disclosure. The

Iowa court subsequently added a more elaborate disclosure require-

ment (App. 61a), which is not at issue here.

19

qualified to practice in those fields, and, as the dissent

stated, “there is no evidence, nor even a claim, that they

were in fact not qualified.” (App. 20a.)'*§ Offering no

discussion, the majority merely said it thought viewers

might think Humphrey and Haas more able than they are

(App. lla); but this Court in Zauderer confirmed that a

state may not “prevent an attorney from making accurate

statements of fact regarding the nature of his practice

merely because it is possible that some readers will infer

that he has expertise in those areas.” 105 S. Ct. at 2276

n.9.

Wholly apart from the First Amendment obstacles to

the lowa court’s conclusion that the ads were potentially

misleading with respect to cost or quality of service, it

plainly violated due process for the court to enjoin Hum-

phrey and Haas from running their ads on this ground —

or for its findings in this respect here to support possible

future disciplinary action against Humphrey and Haas.

The Committee’s complaint did not allege that the ads

were misleading in any respect, and it presented no evi-

dence on these matters at the hearing before the commis-

sioner. It first raised these claims in its brief to the Iowa

court, obviously groping for some solid basis for the relief .

it had requested. Although a majority of this Court re-

jected a due process attack on similar maneuvering by

state authorities in Zauderer (105 S. Ct. at 2283-84), the

issue should be reconsidered here. It is intolerably per-

'§ Humphrey, a 1979 Drake Law School graduate, had been editor-

in-chief of the law review and had clerked for a federal magistrate dur-

ing law schoo!. Haas, also a 1979 Drake Law School graduate, was

also on the law review and served as student bar president. As of the

summer of 1983, the two lawyers (who had formed their firm in

November 1980) had handled or were handling over 150 personal in-

jury cases, in addition to their worker’s compensation cases.

\

\

20

nicious for state authorities, unable to muster proof of

their charges in evidentiary hearings, to be permitted at the

briefing stage to urge remedial action on entirely new

grounds. See id. at 2292-93 (Brennan, J., joined by Mar-

shall, J., dissenting in part).

C. The Ban on “Dramatic” Voices and “Self-

Laudatory” Statements Also Violates The First

Amendment

The Iowa court sustained DR 2-101(A)’s ban on

“dramatic” voices without analysis; to it, the meaning of

the term is “commonly understood,” and therefore DR 2-

101(A)’s ban could not be condemned as vague. Humphrey

and Haas submit that the court was wrong. A ban on the

use of “dramatic” voices is inherently vague, for there is no

voice that cannot be considered “dramatic,” and no prin-

cipled basis for distinguishing between the voice that is

“dramatic” and a voice that is not. Indeed, by prohibiting

a lawyer from speaking in his own television ads, the rule

requires a lawyer to employ an actor if he desires to have

his message heard; and it is hard to imagine how an actor’s

voice could be regarded as anything other than “dra-

matic.”

No test of intonation or other criterion is provided by

the rule for determining when a voice is “dramatic,” and

the rule’s prescription is thus a recipe for arbitrary and

discriminatory treatment of lawyers who advertise on tele-

vision. This case is a perfect illustration. There was no

shouting in the ads in question; there were no histrionics.

The ads involved actors playing everyday people, speaking

in everyday language about everyday needs, in perfectly

measured tones. If there was anything “dramatic” about

their voices, neither the Committee nor the lowa Supreme

Court explained what it was.

ea”

21

Nor could Humphrey and Haas ever have suspected that

the ads would be deemed “self-laudatory.” Their ads made

no claim as to the quality of their services, did not recite

their credentials (although the rules permit credentials to

be listed), and did not claim or suggest that the firm would

render better service than other firms. If these ads were

“self-laudatory,” then all ads are “self-laudatory,” and the

ban on “self-laudatory” statements amounts to a ban on

all ads. Applied to enjoin these ads on the ground that

they contain “self-laudatory” statements in violation of

DR 2-101(A), the rule is impermissibly vague — equivalent

to the blanket advertising prohibitions held impermissible

by Bates and its progeny.

CONCLUSION

Probable jurisdiction should be noted and the case set

for briefing and argument.

Respectfully submitted, -

MarK W. BENNETT CHARLES A. Horsky*

BABICH, BENNETT & Davip H. REMES

NICKERSON COVINGTON & BURLING

5835 Grand Ave. 1201 Pennsylvania Ave., N.W.

Suite 202 P.O. Box 7566

Des Moines, lowa 50312 Washington, D.C. 20044

CHARLES S. SIMS (202) 662-6000

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 West 43d St.

New York, N.Y. 10036

Counsel for Appellants

February 11, 1986 *Counsel of Record