Petition for Writ of Certiorari — Wherry v. Iowa Supreme Court Board of Professional Ethics & Conduct

\V/ " <icee”

97 1200 JAN 2 0 1998

N°.

OFFICE OF PHE CLERK

In The

Supreme Court of The United States

October Term 1997

+

JAMES C. WHERRY

Petitioner,

Vv.

IOWA SUPREME COURT BOARD OF

PROFESSIONAL ETHICS AND CONDUCT,

Respondent.

4

Petition For A Writ Of Certiorari

To the Supreme Court of the State of Iowa

4

PETITION FOR WRIT OF CERTIORARI

4

JAMES C. WHERRY*

Attorney at Law

326 West Third Street, Suite 911

Davenport, [A 52801-1220

(319) 323-7707

*pro se Counsel of Record

- APPELLATEADVANTAGE ————™~*”

4264 N. OAK TRAFFICWAY@KANSAS CITY, MO 641160816-453-2424

IIT.

IV.

QUESTIONS PRESENTED

Does the Equal Protection Clausé of the

Fourteenth Amendment of the United States

Constitution permit the lowa Supreme Court

to severely restrict the Petitioner's right to

advertise even when the restriction lacks a

rational basis?

Does the First Amendment of the Constitution

of the United States permit the lowa Supreme

Court to prohibit the Petitioner from truthfully

advertising specific areas of the law in which

he practices?

Does the Equal Protection Clause of the

Fourteenth Amendment of the United States

Constitution permit the lowa Supreme Court

to grant some attorneys - but not the Petitioner

- the constitutionally-protected right to

commercial free speech?

Do the Due Process Clauses of the Fifth and

Fourteenth Amendments of the United States

Constitution permit the lowa Supreme Court

to consider a prior decision against the

Petitioner in determining appropriate

sanctions in the present case when the

previous decision was without hearing or right

of appeal?

TABLE OF CONTENTS

BP ge ea D8 ee ee re

TR a es 8 | De V1

SEIN A SCs | yyy Gig ae seve ee ck ee kanes

CONSTITUTIONAL PROVISIONS

ee Ak 6 ) re |

RPE MSIE SD OP AOS i ee eee 4

REASONS FOR GRANTING THE WRIT ........... 1]

I. THE COURT BELOW DECIDED

SIX IMPORTANT QUESTIONS OF

FEDERAL CONSTITUTIONAL

LAW THAT HAVE NOT BEEN,

BUT SHOULD BE, SETTLED BY

THIS COURT, AND THE

RESOLUTION OF THESE ISSUES

BELOW CONFLICTS WITH THE

GOVERNING PRINCIPLES OF

PRIOR DECISIONS OF THIS

ee his «ob bo wih wale '8 ton 1]

il

A. This Court Should Decide

Whether Iowa's Rules Which

Impair Attorney Advertising

Violate The — Fourteenth

Amendment Because’ The

Rules Lack A Rational

PS. Sa Vee eee ca ey pales 11

B. This Court Should Decide

Whether Truthful And Readily

Verifiable Statements About

The Most Basic Element Of

Attorney’ Advertising - Fields

Of Practice - Can Be Severely

And Unreasonably Restricted,

Or Whether Such Restrictions

Violate The First

PT Ree ees fa pep rene 16

G. This Court Should Decide

Whether lowa's Regulatory

Scheme, Which Permits Some

Attorneys (But Not The

Petitioner) To Advertise,

Violates The Equal Protection

Clause Of The Fourteenth

PI ik a KS 26

D. This Court Should Decide

Whether The Iowa Supreme

Court's Decision Violated The

Petitioner's Right To Due

RR ers Se Sy Spe ty We 28

NS es Wa F 0 naln ore Ek Os

APPENDICES

Supreme Court of lowa, Opinion,

OE gS pr Re,» APS are ees A- |

Greivance Commissoin of the Supreme

Court of Iowa, Findings of Fact, Conclusions

of Law and Recommendation ............ B - 13

U. S. District Court, Southern District

of lowa, Memorandum Opinion .......... C - 20

lowa Rules of Court, Disciplinary Rules ... D- 3]

TABLE OF AUTHORITIES CITED

Cases Page

United States Supreme Court Cases

of N.Y., 447 U.S. 557, 100 S.Ct. 2343,

65 L.BG.20 FOI Pe tena aad cd Gk ba ethnics 18, 20, 21

incinnati v. Discov

113 §.Ce. £505. 125 Eee ee ok a cs bce cewnae

City of Cleburne, Tex. v. Cleburne Living Center,

473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313

CISGSE w 5 obese ww ccd debe see aes 11,14

Deakins v. Monaghan, 484 U.S. 193, 1088 S.Ct. 523,

96 L.Ed 2a SZS CIGBSS kick os bie ce aes 29

Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d

ZIGANSIS) ccanns wey nhs eee eee 26

Edenfield v. Fane, 507 U.S. 761, 113 S.C. 1792.

123 L.Ed.2d 543 RRR a aaa 19, 20

Florida Bar Vv. Went For It, Inc.. S515 US. 618,

115 S.Ct. 2371, 132 1 Ed.2d 541 (1995) .--+ ++ °°: passim

44 Liquormart, Inc., — U.S. _, 116 S.Ct. 1495,

PS Ge lc PIR ed an 1]

Ibanez v. Fla. Dept. of Bus. & Pro. Regulation,

512 USS. 136, 114 S.Ct. 2084,

129 L.Ed.2d 118 SES Cc rarsavavertattte™ 2h" 19

In re R.MLL, 455 U.S. 191, 102 S.Ct. 929,

71 L.Ed.2d 64 (1982) ..-----sssr 14, 18, 21, 24

Kramer Vv. Union Free School District, 395 U.S. 621,

89 S.Ct. 1886, 23 L.Ed.2d 600 (1969) ...---eeererrss 20

Louisville Gas & Elec, Co. v. Coleman,

977 USS. 32, 48 S.Ct. 423, 72 L.Ed. 770 (1928) ----+-° 15

Loving V. Virginia, 388 U.S. 1, 87 S.Ct. 1817,

PR 2s IR a 26

el v.

496 U.S. 91, 110 S.Ct. 2281,

CE Re TI ae blade v be ib Saou wea een ‘. passim

Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620,

LOG Tee te BE a oc vc kk ee eo hiccck cc én 10, 15, 16

Rubin v. Coors Brewing Co., 514 U.S. 476,

115: S.C4. 1563, £35 Lee 332 (1995)... ... 605. 10, 28

Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836,

Fee Ma FOIE RORY eee hig eka a bate < re ke sees 15

Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848,

Pe Gc ERE E Bibic s POEs Halicts gy ne cbs aw’ 15

Vill

Virginia Pharmacy Board v. Virginia Citizens Consumer

Council, 425 U.S. 748, 96 S.Ct. 1817, 48, L.Ed. 346

PN Cr Rete sien Vis wein ste seus eye ety oe

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746,

TE Pe OL OOED., . . svn ere Gee tes sees nees 7,29

Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626, 105 S.Ct. 2265,

BR Ob Pog.) ee Se Ay See

2 | Vi S

U.S. Const., First Amendment ..........+-+5+- passim

U.S. Const., Fifth Amendment ...........-+2e+eeees 2

U.S. Const., Fourteenth Amendment........ 2,11, 26, 28

Federal Statutes and Regulations

RD See UR. s | OR eee eae eee |

Icwa Rules of Professional Ethics and Conduct

DR 2-101(A) PERSSON. cite a ean o een SY f

Re a ka eee ed teary ease whee es 4

RE er i 13

PE UR a eer ceeeveresstacecbereeses 12

a a

DF 8, eet Te er EN EE os EE eee 5

DR 2-101(D)(4) ..... ok vena y ( sues HAL bb Pi 12

a RROD Sov Ss hae aes es Vey oe ee passim

Other Authorities

ABA, Lawyer Advertising at the Crossroads (1995) ..... 8

Formal Opinions of the lowa Supreme Court Board of

Professional Ethics and Conduct, July 1, 1965-July 1, 1997,

Opinion 95-21, February 22, 1996,

ADVERTISING: BAR, ELECTRONIC .............23

LOWER COURT REPORTS AND OPINIONS

On May 5, 1995, the United States District Court for

the Southern District of lowa issued a Memorandum Opinion

in a related case. This document is unreported and is

reprinted at Appendix C - 20.

On April 18, 1997, the panel of the Grievance

Commission of the Supreme Court of Iowa issued its

Findings of Fact, Conclusions of Law and Recommendations.

This document is unreported and is reprinted at Appendix B -

13.

On October 22, 1997, the Supreme Court of lowa

issued its opinion adopting the report of the Grievance

Commission and publicly reprimanding the Petitioner. This

document is reported at 569 N.W.2d 822 (Iowa 1997) and is

reprinted at Appendix A - l.

JURISDICTION

This is a petition to review the Opinion of the lowa

State Supreme Court that was entered on October 22, 1997.

Jurisdiction is conferred on this Court by 28 U.S.C. Sec.

1257(3).

CONSTITUTIONAL PROVISIONS AND

RULES INVOLVED

The First Amendment of the United States

Constitution provides:

"Congress shall make no law respecting an

igion, or prohibiting the free

establishment of rel

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress

of grievances."

The Fifth Amendment of the United States

Constitution provides:

"No person shall be held to answer for a capital,

or otherwise infamous crime, unless on presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation."

The Fourteenth Amendment to the United States

Constitution provides:

"No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

2

Disciplinary Rule 2-101 of the lowa Code of

Professional Responsibility for Lawyers. This rule is lengthy

and is set forth at Appendix D - 31.

Disciplinary Rule 2-105(A)(2) of the lowa Code of

Professional Responsibility for Lawyers. This rule is lengthy

and is set forth at Appendix D - 48. The rule lists potential

“areas of practice" which an attorney may advertise.

Disciplinary Rule 2-105(A)(4) provides of the lowa

Code of Professional Responsibility for Lawyers provides:

"DR 2-105 DESCRIPTION AND LIMITATION OF

PRACTICE

(4) Prior to communication of a description or

indication of practice permitted by DR 2-105(A)(2),

a lawyer shall report the lawyer's compliance with the

following eligibility requirements each year in the

written report required to be submitted to the

Commission on Continuing Legal Education:

(a) The lawyer must have devoted the

greater of 200 hours or twenty percent of the

lawyer's time spent in actual law practice to

each separate indicated field of practice for

each of the last two calendar years; and

(b) The lawyer must have completed at

least ten hours of accredited Continuing Legal

Education courses of study in each separate

indicated field of practice during the

preceding calendar year."

STATEMENT OF THE CASE

In 1988, the lowa State Supreme Court amended the

lowa Code of Professional Responsibility for Lawyers. The

Code regulates the conduct of attorneys in the State of Iowa. '

At that time, the current version of Disciplinary Rule 2-

105(A)(4) was adopted. DR 2-105(A)(4) prohibits an

attorney from advertising the areas of law in which he or she

practices (divorce, bankruptcy, etc.), unless that attorney has

had a substantial amount of practice in that area for a number

of years and has completed set levels of continuing legal

education ("CLE"). At a minimum, an attorney must have the

greater of two hundred hours or twenty percent of his or her

practice in that field in the preceding two years and ten hours

of continuing legal education in the preceding calendar year.

The rule is a complete ban. It covers all forms of

advertising. An attorney who fails to qualify under DR 2-

105(A)(4) may not advertise his or her areas of practice in the

yellow pages, in the newspaper, in magazines, on billboards,

on radio, on television, or through direct mail solicitation.

DR 2-101(B). The rule provides no other way to demonstrate

competence in an area of law. Iowa also requires all attorneys

' The lowa Code of Professional Responsibility for Lawyers

consists of nine general "Canons" of law explained and elaborated

on by a set of "Disciplinary Rules" (hereinafter "DR") and Ethical

Considerations.

who advertise to include several lengthy disclaimers in their

advertising disavowing any claim of expertise in the fields of

law in which they advertise.”

The Petitioner graduated from the University of lowa

College of Law in 1991 and was admitted to practice law in

the State of lowa in June of that year after taking the lowa bar

exam. Hearing Transcript ("H.Tr.") at 39. By graduating

from an accredited law school and successfully completing

the Iowa bar exam, the Petitioner fulfilled the requirements

laid down by the Iowa State Supreme Court itself for

practicing law in lowa. lowa Sup.Ct.R. 100 to 106. Upon

admission to the bar, the Petitioner served for a year as a law

clerk to the Honorable William L. Edmonds, United States

Bankruptcy Judge for the Northern District of lowa in Sioux

City. H.Tr. at 39-40.

In September, 1992. the Petitioner opened his solo

practice in Davenport, Iowa. H.Tr. at 39-40. Shortly after he

opened his private practice, the Petitioner began to advertise

in local phone books. Several copies of the ads were lodged

with the Clerk of the U. S. States Supreme Court at the time

of the filing of. The Petitioner began by advertising his

availability to practice in bankruptcy. H.Tr. at 40. At that

time, in 1992, the Petitioner was ineligible to advertise in any

area of the law because he had not been out of law school for

more than two years and, thus, did not have the requisite

>See DR 2-101(A),. Apdx D - 31; DR 2-101(C)(13), Apdx D -

39: and DR 2-105 (A)(3)(c). Apdx D - 50.

5

levels of practice. DR 2-105(A,(4). He could not advertise

his availability to practice in bankruptcy. even though he had

clerked in bankruptcy court for a vear. Later, the Petitioner

expanded his advertising to include reference to his practice

in divorce, wills and social security appeals. H.Tr. at 40. By

January. 1997, about ten to fifteen percent of the Petitioner's

practice Was in criminal work. ten percent was 1n family law,

and the rest was in bankruptcy or general, miscellaneous

matters. H.Tr. at 41.

At no time did the Petitioner hold himself out to be a

"specialist" in any area of law. On the contrary, the

Petitioner's advertisements specifically denied any specialty

by stating that he was “available to practice in, but not limited

to" specific areas of law. The Petitioner's advertisements

also stated that he was engaged in "general practice." H.Tr.

at 40. (Copies of these advertisements have been lodged with

the office of the Clerk of the U. S. Supreme Court at the time

of the filing of this Petition for the Court's review and

convenience.)

In 1993 the Petitioner was admonished by the Iowa

Supreme Court Board of Professional Ethics and Conduct*

(hereinafter the "Board") and was advised that his advertising

violated DR 2-105(A)(4). H.Tr. 6 and 67. The Petitioner

vehemexily asserted that the disciplinary rule was

At this ume. the Board was officially known as the Committee

on Professional Ethics and Conduct of the Iowa State Bar

Association.

6

unconstitutional. H.Tr. at 67-68. No hearing was ever held

on the subject. The matter was dealt with entirely in writing.

Id. The admonition was non-appealable, and his arguments

were ignored. Id.

In January, 1995, the Petitioner filed a complaint in

the United States District Court for the Southern District of

lowa and asked that DR 2-105(A)(4) be declared

unconstitutional. In a decision dated May 5, 1995, the

Honorable Judge Harold D. Vietor dismissed the relevant

portion of the Petitioner's complaint and held that, since the

Board had once again initiated an inquiry into the Petitioner's

advertising, the Court could not rule on these issues under

Younger abstention principles.* A copy of this Memorandum

Opinion is attached at Apdx C - 20. Judge Vietor wrote that

the Petitioner's constitutional concerns would be considered

at every level, by the Board, by the Grievance Commission

Panel and, if it came to it, by the lowa State Supreme Court,

‘tself. Memorandum Opinion at 5 and 6, Apdx D - 26-28.

This turned out, later, to be untrue. The federal complaint

was dismissed, soon thereafter.

In 1996, the Board filed its complaint against the

Petitioner before the Grievance C ommission of the Supreme

Court of lowa, and a hearing was held on January 22, 1997.

At the hearing, the Board presented no testimony supporting

its claim that DR 2-105(A)(4) was constitutional. The Board

+ Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669

(1991).

offered no testimony about what substantial governmental

interests were served by DR 2-105(A)(4), how the rule met

these interests, what alternatives were available, why they

were rejected, and whether or not the rule was narrowly

drawn.

The Petitioner appeared and offered testimony about

his own educational background and legal experience. The

Petitioner also offered evidence that DR 2-105(A)(4) was

unconstitutional, citing an American Bar Association report

on advertising which called Iowa's rules "abolitionist" and

"restrictive." Petitioner's Exhibit D in the case below.’ The

Association's report raised concerns that limited access to

legal services had raised the costs of services which were

already criticized by the public as expensive. Id. at 127-132.

The Board never suggested that the Petitioner had

made a false or misleading statement.® No client claimed to

have been misled by the Petitioner's advertising. The

Petitioner had practiced in each area in which he had

* ABA, Lawyer Advertising at the Crossroads (1995).

° At the Grievance Commission hearing, the attorney for the

Board argued that the Petitioner's advertising should be analyzed

like "ads which are only potentially misleading..." H.Tr. at 12. In

its brief before the Iowa State Supreme Court, the Board

acknowledged that "Ads stating that a lawyer practices in a

particular area of the law are not false (assuming that the lawyer

does in fact practice in that area). Such ads, however, are at least

potentially misleading." The Board's Brief to the Iowa State

Supreme Court at 13.

advertised his availability to practice.

On April 18, 1997, the panel for the Grievance

Commission issued its recommendation. The panel held the

Petitioner had violated DR 2-105(A)(4). The panel further

held that it was without authority to consider the

constitutional issues submitted by the Petitioner and

recommended that the Petitioner be reprimanded. Apdx B -

13.

The Petitioner filed a timely notice of appeal to the

Supreme Court of lowa, and the matter was taken up by that

Court. On October 22, 1997, the Supreme Court of lowa

adopted the panel's report and publicly reprimanded the

Petitioner. 569 N.W.2d 822, 824 (lowa 1997), Apdx A - I.

In its opinion, the Court began by suggesting that

commercial speech enjoys only "limited protection.” Id. at

824, Appendix to this Petition at__. The lowa Supreme Court

concluded that the Petitioner's advertising was actually

misleading because of his relative inexperience in one or

more of the fields of law in which ¢ advertised. Id., at 826,

Appendix to this Petition at__. Tis conclusion was contrary

to the Board's own position before the Grievance Commission

and in its brief to the lowa Supreme Court.

The Iowa high court concluded that DR 2-105(A)(4)

met the three-prong test used to analyze rules under the

commercial free speech doctrine and held that its rule was

constitutional. Id. at 825, Apdx A - 6. The Court also rejected

the Petitioner's equal protection claims and stated, "The rule

treats all lawyers the same, and all lawyers are subject to it."

Id. at 827, Apdx A - 11.

This case is constitutionally significant. First, the

United States Supreme Court recently struck down a state

consitutional amendment that banned ordinances protecting

homosexuals and held that the amendment could not pass the

rational basis test. Romer v. Evans, 517 U.S. 620, 116 S.Ct.

1620, 134 L.Ed.2d 855 (1996). This case is the first since

Romer to consider whether equal protection analysis should

be applied to protect other, less-threatened members of the

community.

Second, the lowa Supreme Court misread this Court's

recent decision in Florida Bar v. Went For It, Inc., 515 U.S.

618, 115 S.Ct. 2371, 133 L.Ed.2d 541 (1995). As will be

explained, below, that case involved a limited ban on one

certain form of advertising. This case involves a complete

ban on advertising at all times, in all manners, and in all

places. Courts may see Went For It as a complete reversal of

the attorney advertising cases that began with Bates v. State

Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed. 810

(1977). This Court should use this case to revisit these issues

and correct whatever misperceptions state courts may have.

Some have expressed a concern that there is

disjuncture between regular commercial free speech cases and

the attorney advertising cases. Went For It, 515 U.S. at 635

(J. Kennedy, dissenting). There have been several recent

"regular" commercial free speech cases. Rubin v. Coors

10

Brewing Co., 514 U.S. 476, 115 S.Ct. 1585, 131 L.Ed.2d 532

(1995); 44 Liquormart, Inc. a, SO BS S.Ct. 1495, 134

L.Ed.2d 711 (1996). This case could be used to reconcile any

concems over the two lines of cases. These goals could be

accomplished without a change in the law. The Court need

only uphold its own prior decisions.

I. THE COURT BELOW DECIDED FOUR

IMPORTANT QUESTIONS OF FEDERAL

CONSTITUTIONAL LAW THAT HAVE

NOT BEEN, BUT SHOULD BE, SETTLED

BY THIS COURT, AND THE

RESOLUTION OF THESE ISSUES BELOW

CONFLICTS WITH THE GOVERNING

PRINCIPLES OF PRIOR DECISIONS OF

THIS COURT.

A. This Court Should Decide Whether

lowa's Rules Which Impair Attorney

Advertising Violate The Fourteenth

Amendment Because The Rules Lack

A Rational Basis.

The Equal Protection clause requires that regulations

enforced at law have a rational basis. In City of Clebume,

Tex. v. Clebume Living Center, 473 U.S. 432, 105 S.Ct.

3249, 87 L.Ed.2d 313 (1985) the United States Supreme

Court struck down a city zoning ordinance requiring a special

use permit for a home for the mentally handicapped. The

11

Court concluded that the ordinance did not have a rational

basis because of numerous inconsistencies in the law. In that

case, the Cleburne city council argued that locating the home

in close proximity to a school was dangerous because

students at the school would harass the residents of the home.

Id., 473 U.S. at 449. This argument was despite the fact that

at least thirty of the residents were students at the school. Id.

The home had to be located on "a five hundred year flood

plain." Id. In stnking down the ordinance, this Court looked

at the statute and its enforcement, as a whole.

Iowa's Disciplinary Rules governing advertising are

replete with inconsistencies. DR 2-105(A)(4) prevented the

Petitioner from making the statement that he is available to

practice in any specific area of law. Other disciplinary rules

permit the Petitioner to advertise his affiliation in legal

fraternities and organizations dedicated to particular areas of

the law. DR 2-101(C)(10) and (C)(13). The Petitioner can

advertise his affiliation with the American Bankruptcy

Institute (H.Tr. at 20), or his membership in the Family Law

small section of the lowa State Bar Association, but he cannot

advertise the fact that he is available to practice in these areas

under DR 2-105(A)(4).

The Petitioner may advertise a "fixed rate" or "flat

fee" for services in particular areas of the law and even name

the areas of law. DR 2-101(D)(4) & (E). The Petitioner can

advertise "simple wills, $50 flat rate", even though he is not

qualified under DR 2-105(A)(4) to tell anyone that he 1s

12

—

available to practice in wills. Under DR 2-101(D)(1). the

Petitioner has the right to state that he gives a "free

consultation for bankruptcy and family law matters,” even if

he cannot advertise his practice in these areas under DR 2-

105(A)(4).

The Petitioner may advertise that he is admitted to

practice in certain specialized courts such as the bankruptcy

court. DR 2-101(C)(4). The Petitioner can advertise his legal

writings in bankruptcy. H.Tr. at 42. DR 2-101(C (5). All

told, the Petitioner could use the words "bankruptcy," "wills"

or "family law” numerous times in his advertising, even

though he is forbidden to come right out and mention the fact

that he is able to practice in these areas.

The Petitioner operates a free telephone information

line which provides basic information about bankruptcy to the

public. H.Tr. at 20. The ethics Board never complained

about this portion of the Petitioner's advertising even though

it figures prominently in his yellow page ads’ (Copies of these

advertisements have been lodged with the of fice of the Clerk

” It would be even more unsettling if the Board did object to pre-

recorded informational messages. If it did, this Court would be

faced with an even greater wrong because the ethics Board would

be cutting off access by the public to important legal information.

"An attorney may not be disciplined for soliciting legal business

through printed advertising containing truthful and nondeceptive

information and advice regarding the legal rights of potential

clients.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626,

647. 105 S.Ct. 2265, 2279, 85 L.Ed.2d 652 (1985).

13

oma

of the U. S. Supreme Court at the time of the filing of this

Petition for the Court's review and convenience.) Common

sense is the touchstone of all laws regulating advertising.

Certainly, the public would at least guess that the Petitioner

is available to practice in bankruptcy, considering that he

operates this sort of information line. The lowa Supreme

Court considered none of this in its ruling.

An attorney can advertise that he is admitted to

practice before the United States Supreme Court, even though

this may suggest that he practices in the field of appellate

work. Inre R.M.J., 455 U.S. 191, 205-206, 102 S.Ct. 929,

938-939, 71 L.Ed.2d 64 (1982). The lowa Supreme Court's

decision conflicts with the holding in In re R.M.J. and with

this Court's rational basis analysis in Cleburne.

While DR 2-105(A)(4) need not be perfect, it must at

least be rational. . The rule itself requires an advertising

attorney to work the greater of two hundred hours or twenty

percent of his or her time in practice in an advertised field of

law. The rule does not require that the practice be good

practice. Two hundred hours of malpractice in a field of law

for two years is sufficient to permit an incompetent attorney

to advertise under DR 2-105(A)(4), while one hundred hours

of highly competent work is not.

Second, the rule is not consistently or fairly applied.

DR 2-105(A)(4) requires more work in an area of law from an

attorney who works more total hours than from an attorney

who works less. An attorney who practices two thousand

14

hours per year, overall, but who only works for three hundred

ninety-nine hours in a particular area of law (and attends one

hundred hours of CLE in that area every year and teaches

three law school courses on the subject) cannot advertise in

the area of law while an attorney who only practices for a

total of two hundred hours per year in one field of law (and

attends the necessary ten CLE hours) can advertise in that

area. These examples show the transparent problems

surrounding DR 2-105(A)(4).

Unusual distinctions or discriminations under the law

require the Court to carefully consider whether a law is

“obnoxious to the constitutional provision." Romer v. Evans,

517 U.S. 620, __, 116 S.Ct. 1620, 1628, 134 L.Ed.2d 855

(1996), quoting Louisville Gas & Elec. Co. v. Coleman, 277

U.S. 32, 37-38, 48 S.Ct. 423, 425, 72 L.Ed. 770 (1928).

"Equal protection of the laws is not achieved through

indiscriminate imposition of inequalities." Romer, 116 S.Ct.

at 1628, quoting Sweatt v. Painter, 339 U.S. 629, 635, 70

S.Ct. 848, 850-851, 94 L.Ed. 1114 (1950) which quoted

Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92

L.Ed. 1161 (1948).

In Romer, this Court struck down a provision of the

Colorado constitution which prohibited laws protecting

homosexuals from discrimination. The Court did so on

grounds that the constitutional provision lacked a rational

basis. Romer, 116 S.Ct. at 1628. While attorneys have never

suffered the extensive discrimination faced by homosexuals

15

in the United States, recent attempts to curb attorney

advertising seem to come in response to a sense that attorneys

are predatory, and that their advertising is either offensive to

the general public, or regarded with deep suspicion.* The

lowa State Supreme Court's decision in the present case is

contrary to the careful reasoning in Romer.

B. This Court Should Decide Whether

Truthful And Readily Verifiable

Statements About The Most Basic

Element Of Attorney Advertising -

Fields Of Practice - Can Be Severely

And Unreasonably Restricted, Or

Whether Such Restrictions Violate

The First Amendment.

lowa's Disciplinary Rule 2-105(A)(4) harms the

practice of law and it injures the public because it

* In many of the attoney-advertising cases which have come

before it, this Court, has been faced with the argument that lawyers

‘cannot be trusted’ or that their advertising is offensive to a

mistrusting public. This Court has responded, "It is at least

somewhat incongruous for the opponents of advertising to extol the

virtues and altruism of the legal profession at one point, and, at

another, to assert that its members will seize the opportunity to

mislead and distort." Bates v. State Bar of Arizona, 433 U.S. 350,

379, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977). See also Peel v.

Attomey Reg. & Disciplinary Com'n, 496 U.S. 91, 109, 110 S.Ct.

2281, 2292, 110 L.Ed.2d 83 (1990).

16

unreasonably interferes with a lawyer's effort to answer the

most fundamental question a client can pose: "Can you help

me?" The lowa State Supreme Court's decision upholding the

rule creates a complete ban on advertising the fields of law in

which an attorney practices. The ban on any given attorney

may be permanent and may last a lifetime. At a minimum, an

attorney will spend years earning the privilege to advertise the

areas of law in which the lowa State Supreme Court licensed

the attorney to practice, when it first admitted the attorney to

the bar.

States may regulate advertising that is false, deceptive,

or "inherently" misleading. Shapero v. Kentucky Bar Ass'n,

486 U.S. 466, 472-473, 108 S.Ct. 1916, 1921, 100 L.Ed.2d

475 (1988); Zauderer, 471 U.S. at 644-645; In re R.M.J, 455

U.S. at 202. Advertising which is only "potentially"

misleading cannot be eliminated by broad "prophylactic"

rules. Peel, 496 U.S. at 107-109. "Potentially" harmful

advertising may be limited only where there is a showing that

the potential for harm is "significant." Ohralik v. Ohio State

Bar Ass'n, 436 U.S. 447, 455, 98 S.Ct. 1912, 1917, 56

L.Ed.2d 444 (1978) (upholding a ban of in-person attorney

solicitation because the potential for harm was "Si gnificant");

Florida Bar v. Went For It. Inc., 515 U.S. 618, 626, 115 S.Ct.

2371, 2377, 133 L.Ed.2d 541 (1995) (upholding a thirty-day

ban on attorney solicitation of personal injury victims or the

relatives of wrongful death victims in light of "statistical and

anecdotal" evidence that past misconduct had injured the

17

——— ee eee

public and intruded on their privacy).

If the advertisement is not actually false or deceptive,

then a rule regulating commercial free speech is subject to a

stringent three-part test: |.) The rule must serve a "substantial

governmental interest;" 2.) The rule must directly and

materially advance that interest; and 3.) The rule must be

reasonable and it must be narrowly drawn. Central Hudson

_V. Publi ‘4 NLY., 447

U.S. 557, 565, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980).

Attorneys have a First Amendment right to advertise

the areas of law in which they practice. In Inre R.M.LL, this

Court reversed a judgment reprimanding an attorney for

deviating from a precise list of areas of practice in his

advertising. This Court stated, ". . .States may not place an

absolute prohibition on certain types of potentially misleading

information, e.g., a listing of areas of practice, if the

information also may be presented in a way that is not

deceptive." Inre R.M.L, 455 U.S. at 203.

The Iowa State Supreme Court refused to apply In re

R.M.L, arguing that DR 2-105(A)(4) was not a complete ban

on advertising because it permitted lawyers to advertise their

practice after meeting the rule's burdensome requirements.

569 N.W.2d at 825-826, Appendix at __. Notwithstanding the

lowa Court's opinion, the Petitioner has proved that DR 2-

105(A)(4) ts a complete ban to all attorneys who are denied

the right to advertise under the rule. An attorney must wait

years to advertise his or her areas of legal practice and may

18

never qualify to advertise under DR 2-105(A)(4), if only a

few clients retain the attorney in a particular area of law. The

ban applies to all advertising media, print. television, or radio.

In our case, the lowa State Supreme Court concluded

that the Petitioner's advertising was actually misleading. 569

N.W.2d at 826 (lowa 1997), Apdx A - 10-11. The evidence

did not support this conclusion. The burden of justifying

limitations on commercial free speech is substantial and it

rests squarely on the State. Edenfield v. Fane, 507 U.S. 761.

770-771, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543 (1993).

"The State's burden is not slight; the 'free flow of commercial

information s valuable enough to justify imposing on would-

be regulators the costs of distinguishing the truthful from the

false, the helpful from the misleading, and the harmless from

the harmful," Ibanez v, Fla. Dept. of Bus. & Pro. Regulation,

512 U.S. 136, 143, 114 S.Ct. 2084, 2089, 129 L.Ed.2d 118

(1994), quoting Zauderer, 471 U.S. at 646, "The burden is

not satisfied by mere speculation or conjecture; rather, a

governmental body seeking to sustain a restriction on

commercial speech must demonstrate that the harms it recites

are real and that its restriction will in fact alleviate them to a

material degree. Edenfield, 507 U.S. at 770-771.

The Iowa Supreme Court's decision should be

reversed because it does not rest on the strong foundation of

proof required by Edenfield. The ethics Board failed to

provide the evidence necessary to sustain DR 2-105(A)(4)'s

onerous burden on advertising. There was no evidence that

19

the Petitioner's advertising was deceptive. No client appeared

at the Petitioner's hearing and complained of being deceived.

No client even suggested that he had been poorly served by

the Petitioner.

: . , 496

U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990), this Court

reversed a decision of the Supreme Court of Illinois which

had held that advertising a certificate in an area of law was

misleading because the public would be confused about the

nature of the certificate and believe it represented a State

sanctioned certificate of expertise. The United States

Supreme Court rejected this argument and concluded that,

"Given the complete absence of any evidence of deception in

the present case, we must reject the contention that the

petitioner's letterhead is actually misleading." Id., 496 U.S.

at 106. In our case, the lowa State Supreme Court erred

because it did not hold its Ethics Board to the high standard

of proof required by Edenfield and Peel and because the

Court failed to properly examine the evidence before it to

determine whether the Petitioner's advertising was deceptive.

The lowa State Supreme Court also failed to correctly

apply the three-prong test of Central Hudson Gas & Elec.

Corp.. First, no evidence was presented that DR 2-105(A)(4)

serves a "substantial governmental interest." The only

interest which the lowa Supreme Court relied upon was its

"responsibility to protect the public interest in informed

selection of legal representation." 569 N.W.2d at 825, Apdx

20

A - 6-7. General concerns over potential problems do not

serve as justification for outright bans on advertising. {n re

R.MLL, 455 U.S. at 204-207. The interest served must be

substantial and not merely a plea to the general good. Centra!

Hudson , 447 U.S. at 565. To suggest otherwise would make

a mockery of this prong of the test.

Second, DR 2-105(A)(4) does not directly and

materially advance the lowa Supreme Court's interest in

helping the public to make "informed" decisions about legal

counsel. The Board never did explain how depriving the

public of information kept them "informed" about the law or

legal representation. No evidence was ever presented which

showed that the rule had advanced the legal profession,

helped one layperson, educated and improved one attorney, or

shielded a single client from unscrupulous conduct.

Third, DR 2-105(A)(4) is neither reasonable, nor is it

narrowly tailored. In Went For It, Florida attorneys were

prohibited from contacting the victims of personal injury

accidents (or their relatives in the case of wrongful death) for

thirty days from the date of the accident. Writing for the

majority, Justice O'Conner cited three important limitations

on Florida's rule which made it reasonable and showed that it

Was narrowly drawn. First, the Florida rule only lasted for a

limited period of time (thirty days). Id., 515 U.S. at 632-634.

Second, the rule was limited in scope and covered only direct

mail solicitation. Id. There was no prohibition on other forms

of advertising such as radio or television. Third, there were

2]

no other alternative ways to protect the victims of personal

injury, or those who had lost a relative due to wrongful death.

Id., 515 U.S. at 631.

The duration of lowa's DR 2-105(A)(4) is not

"limited" in any rational sense of the word. A lawyer must

practice in a particular area of law for at least two years (730

days) to be able to advertise in that area. That is twenty-four

times the length of the ban in Went For It.

The scope of DR 2-105(A)(4) is not limited. The rule

gives an lowa attorney no other means to advertise the areas

of law in which he practices. By contrast, in Went For It, the

Court observed that attorneys had numerous opportunities to

advertise their specific practice to the public, even during the

thirty-day ban on direct-solicitation mail.

Florida permits lawyers to advertise on prime-time

television and radio as well as in newspapers and

other media. They may rent space on billboards.

They may send untargeted letters to the general

population, or to discrete segments thereof. There are,

of course, pages upon pages devoted to lawyers in the

Ww lori

Id., 515 U.S. at 633-634. (Emphasis added).

In Iowa, an attorney may do none of the these things

to advertise his or her areas of practice, without first

qualifying under DR 2-105(A)(4). This ban is so complete

9”

that Jowa has even taken steps to enforce its advertising rules

on the Internet.”

A State which seeks to justify a "blanket ban" on

particular forms of advertising must make a strong showing

that less restrictive alternatives will not work. Zauderer. 47]

U.S. at 648-649. "[W]e have observed that the existence of

‘numerous and obvious less-burdensome alternatives to the

restriction on commercial free speech . . . is certainly a

relevant consideration in determining whether the ‘fit’

between ends and means is reasonable." Went For It, 51 5

U.S. at 632, quoting Cincinnati v. Discovery Network, Inc.,

507 US. 410, 417, n. 13, 113 S.Ct. 1505, 1510, n. 13, 123

L.Ed.2d 99 (1993).

There are less restrictive alternatives available to the

State of lowa. Any time period which required less than two

years of practice or twenty percent of time in an area in that

year would be less restrictive. lowa’s time limits and practice

requirements appear to have been randomly chosen. The

standards for admission to the bar could be increased in Iowa.

The Iowa State Supreme Court could administer a test to

determine competency in a particular area of law before

allowing an attorney to practice in that area. A test could be

° The Board has issued an opinion that any advertising on the

World Wide Web "must comply strictly with DR 2-105. This

includes disclosures and compliance with DR 2-105(A)(4)." Formal

Opinions of the lowa Supreme Court Board of Professional Ethics

and Conduct, July 1, 1965-July 1, 1997, Opinion 95-21 February

22. 1996 ADVERTISING: BAR, ELECTRONIC.

23

—s-

offered for attorneys wishing to qualify tor a designation as

a "specialist" in a field of law. The State of lowa could offer

a designation as an "Iowa Supreme Court certified specialist"

in a field of law as an incentive for taking and passing the

test. This would genuinely educate the public about the

quality of legal services.

lowa could use disclaimers. The United States

Supreme Court has indicated that the use of explanatory

disclaimers is preferable to an outright ban on advertising.

Bates, 433 U.S. at 375. See also Inre R.M.J. 455 U.S. at 203;

and Peel, 496 U.S. at 116-117 (concurring opinion of J.

Marshall suggesting that an explanatory disclaimer may be

required where the potential for misunderstanding is great).

lowa attorneys are already required to use several lengthy

disclaimers in their advertising which disavow any claim of

'° There is no evidence that these disclaimers are

expertise.

insufficient to protect the public interest.

The issue raised in this case is important to public

policy. The fundamental underlying principle governing this

area of the law is that "[t]ruthful advertising related to lawful

activities is entitled to the protections of the First

Amendment." In re R.M.J, 455 U.S. at 203. "[D]isclosure of

truthful, relevant information is more likely to make a

positive contribution to decision making than is concealment

of such information." Peel., 496 U.S. at 108.

'’ See footnote 2.

Millions of citizens who live in lowa are injured by a

rule which limits their access to information. "The ban on

advertising serves to increase the difficulty of discovering the

lowest cost seller of acceptable ability. As a result. to this

extent attorneys are isolated from competition, and the

incentive to price competitively is reduced.” Bates, 433 U.S.

at 377. Under DR 2-105(A)(4), a layperson is forced to go

through the phone book, calling countless names at random

to even find out who practices a particular area of law. Iowa's

rule is a paternalistic attempt to "protect" the public from

basic information. Citizens in surrounding states are also hurt

by the rule because attorneys who engage in a bi-state practice

must conform their advertising to Iowa's limited rules.

The Petitioner is not the only individual affected by

the Iowa State Supreme Court's rules. Over ten thousand

attorneys are licensed to practice in Iowa. Less than ten

percent of those have qualified and registered to advertise.

The Board's Exhibit 6 in the case, below. The Iowa law

tramples the rights of small businessmen and women.

The law hurts new attorneys, fresh out of law school.

especially. "In the absence of advertising, an attorney must

rely on his contacts with the community to generate a flow of

business. In view of the time necessary to develop such

contacts, the ban in fact serves to perpetuate the market

position of established attorneys." Bates, 433 U.S. at 378.

DR 2-105(A)(4) serves as an "entry-barrier" for new

attorneys.

———

“ed This Court Should Decide Whether

lowa's Regulatory Scheme, Which

Permits Some Attorneys (But Not The

Petitioner) To Advertise, Violates The

Equal Protection Clause of the

Fourteenth Amendment.

The Fourteenth Amendment to the United States

Constitution requires that all citizens be treated equally under

the law. There are two lines of analysis under the Equal

Protection clause. If a law discriminates against a "suspect"

class of individuals such as members of an ethnic minority, it

runs afoul of the Equal Protection clause and strict scrutiny

must apply. This is not our case. If a "fundamental right" is

affected by a regulation, strict scrutiny will also apply. The

Supreme Court has struck down laws prohibiting interracial

marriage,'' laws affecting voting,'* and laws affecting travel

and voting."

The right to commercial free speech is a

constitutionally-protected right and is, therefore, a

'' Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed. 583

(1967).

'" Kramer v. Union Free School District. 395 U.S. 621, 89 S.Ct.

1886, 23 L.Ed.2d 600 (1969).

'* Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d

274 (1972).

26

fundamental right which must be given equally to all citizens

who can truthfully advertise. The right to commercial free

speech does not simply derive from constitutional principles,

it is part of the First Amendment. Virginia Pharmacy Board

v. Virginia Cit ‘ouncil. 425 U.S. 748, 96

S.Ct. 1817, 48, L.Ed. 346 (1976). DR 2-105(A)(4) denies the

Petitioner his fundamental right to commercial free speech

while other, more experienced attorneys are permitted to

advertise their areas of practice.

The Iowa State Supreme Court rejected the

Petitioner's equal protection argument for two reasons."

First, the Court stated that the Petitioner was treated equally

by the law because all lawyers are subject to the rule. 569

N.W.2d at 827 (lowa 1997). While all lawyers in lowa are

subject to the law, only some lawyers are penalized by it.

Seasoned attorneys with years of experience in a particular

field of law are not deprived of their right to advertise by DR

2-105(A)(4). It is physically impossible for some people to

meet the criteria of DR 2-105(A)(4). When the Petitioner first

entered private practice in 1992, he had not been out of law

school long enough to meet the rule's minimum requirement

of two years of practice. Other attorneys could. "Those in

similar situations” are not being treated alike.

4 DR 2-105(A)(4) also violates the equal protection clause

because it denies potential litigants unrestrained access to the court

system by limiting their access to information about legal services

and the Court should consider this argument, as well.

27

ee

Second, the lowa Supreme Court questioned whether

equal protection analysis was even applicable to commercial

free speech. 569 N.W.2d at 827, Apdx A- 11. Virginia

Pharmacy Board established that commercial speech is

constitutionally-protected. Whether to apply equal protection

analysis to commercial free speech may be a question of first

impression, but only because the law itself is so unique. But

see Rubin v. Coors Brewing Co., 514 U.S. 476, 491, 115

S.Ct. 1585, 1594, 131 L.Ed.2d 532 (1995) (J. Stevens

concurring in the judgment, suggesting that strict scrutiny be

applied to "commercial" free speech cases). DR 2-105(A)(4)

could never survive strict scrutiny for reasons explained in

parts "A" and "B" of this Petition.

D. This Court Should Decide Whether The lowa

Supreme Court's Decision Violated The

Petitioner's Right To Due Process.

The Fifth And Fourteenth Amendments of the United

States Constitution guarantee the right to due process to all

citizens. In a quasi-criminal situation like an ethics case, this

is especially important.

The Petitioner was prevented from seeking relief in

Federal Court. Judge Vietor was assured by the State that the

Petitioner's constitutional claims would be addressed at every

level, before the Board, the Grievance Commission, and the

Iowa Supreme Court. Under these assurances, he dismissed

28

the relevant portions of the Petitioner's federal suit.

Memorandum Order at 4. Apdx C - 25. citing Younger v.

Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1991):

Deakins v. Monaghan, 484 U.S. 193, 206. 1088 S.Ct. 523. 98

L.Ed.2d 529 (1988): and Middlesex County Ethics Comm'n

y. Garden State Bar Ass'n. 457 U.S. 423. 431. 102 S.Ct. 2515.

73 L.Ed.2d 116 (1982)).

The Board never did consider the Petitioner's

constitutional challenges. It never conducted a hearing on

these challenges prior to filing its complaint before. the

Grievance Commission. The Petitioner was given no

opportunity to appear before it to explain his case. The panel

of the Grievance Commission specifically refused to consider

the Petitioner's constitutional claims and held that its

members "do not have the authority to make a determination

as to the constitutionality of a disciplinary rule of the lowa

Supreme Court." Findings of Fact, etc. at 6, Apdx B - 18.

The Grievance Commission's panel also held that the

Petitioner's prior admonition could be taken into account

when it assessed the penalty for his alleged misconduct.

Findings of Fact, etc., at 6-7, Apdx B - 18. The Petitioner had

been previously admonished by the Board for violating DR 2-

105(A)(4). H.Tr. at 6. A private admonition is non-

appealable.

The lowa State Supreme Court never indicated

whether they considered the previous admonition in adopting

the panel's recommendation, but it did state that if any further

29

violations occurred, it would take into consideration the

Petitioner's admonition. 569 N.W.2d-at 827, Apdx A - 12.

[he Petitioner's right to due process was also violated when

he was punished because of a previous decision that had been

entered without a hearing or right of appeal

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be granted.

Respectfully submitted,

James C. Wherry,

326 W. Third St., Ste. 911

Davenport, [A 52801-1220

(319)-323-7706

Appearing pro se

SUPREME COURT

OF THE

STATE OF IOWA

2 _

OPINION

FILED, OCTOBER 22, 1997

+

IN THE SUPREME COURT OF IOWA

No. 243 / 97-777

Filed October 22, 1997

IOWA SUPREME COURT

BOARD OF PROFESSIONAL

ETHICS & CONDUCT,

Appellee,

VS.

JAMES C. WHERRY,

Appellant.

On review of the report of the Grievance Commission.

Appeal from recommendation of grievance commission

in attorney discipline case. ATTORNEY REPRIMANDED.

James C. Wherry, Davenport, pro se.

Norman Bastemeyer and Charles L. Harrington, Des

Moines, for appellee.

Considered by McGiverin, C.J., and Harris, Neuman,

Andreasen, and Ternus, JJ.

Apdx A - 1

HARRIS, Justice.

In Bates v. State Bar of Arizona, 433 U.S. 350, 382-83, 97

S.Ct.2691, 53. L. Ed. 2d 810, 835 (1977), states were

denied authority to prohibit advertising by practicing lawyers.

The question in this appeal, as we see it, comes down to

whether, having submitted to the rule in Bates, states can

adopt and enforce lawyer advertising rules to assure that, in

addition to being reasonable, the advertising is forthright and

accurate.

Attorney James C. Wherry was admitted to practice in

1991 and maintains a general practice in Davenport. Wherry

has consistently advertised his practice in the areas of

bankruptcy, domestic relations, wills, and social security

appeals. He has never filed a report showing his eligibility to

indicate areas of practice with the commission on continuing

legal education as required by DR 2-105 (A) (4) of the lowa

code of professional responsibility for lawyers.' We have said

*DR 2-105 (A) (4) provides that a lawyer who wishes to

advertise an area of practice must first comply with certain steps:

Prior to communication of a description or

indication of practice permitted by DR 2-105(A)(2)

(listing various areas of practice}. a lawyer shall

report the lawyer's compliance with the following

eligibility requirements each year in the written

report required to be submitted to the Commission

on Continuing Legal Education:

Apdx A - 2

a lawyer who advertises a practice in a specific field without

compliance with DR 2-105(A)(4) acts unethically. Committee

on Prof'l Ethics & Conduct v. Morris, 490 N.W.2d 806, 808

(lowa 1992).

Wherry's advertisements in various telephone directories

in violation of this rule prompted the present complaint by the

board of professional ethics and conduct. Wherry testified he

has continuing legal education hours and experience required

to report eligibility for bankruptcy, but has taken no steps to

do so. For the other areas he advertises, he had not met the

practice time or the continuing legal education requirements.

He had drawn only one or two wills before publishing an

advertisement referring to wills. He had not obtained any

continuing legal education in the areas of domestic relations.

wills, or social security.

Wherry's noncompliance has been no mere oversight. He

seems determined to confront our advertising rules; the

(a) The lawyer must have devoted the

greater of 200 hours or twenty percent of

the lawyer's time spent in actual law

practice to each separate indicated field of

practice for each of the last two calendar

years; and

(b) The lawyer must have completed at

least ten hours of accredited Continuing

Legal Education courses of study in each

separate indicated field of practice during

the preceding calendar year.

Apdx A - 3

violations involved here follow a prior proceeding in which

he was privately admonished by the board in 1993 for similar

noncompliance.

I. As a preliminary claim, Wherry contends DR 2-105 (A)

(4) is permissive, not mandatory. He concedes the rule states

that an attorney must comply with the eligibility requirements

before advertising. But he contrasts this with the introductory

language in DR 2-105 (A) (2) which he says is made to only

apply to lawyers who in fact "limit" practice to certain fields

of the law.

DR 2-105(A)(2), before listing the areas of practice

appropriate for specialty advertising, does refer to lawyers

who limit practice to those areas or who wish to practice

primarily in them. But no language in the rule provides the

escape Wherry suggests because the rule is subject to the

general authority for all lawyer advertising which allows

informational but prohibits solely promotional

advertisements. To distinguish between informational and

promotional advertising, DR 2- 101 (C) then provides:

Content (Informational). The following

information shall be presumed to be

informational and not solely promotional:

(2) Fields of practice, limitation of practice or

specialization, but only to the extent permitted

by DR 2-105.

Apdx A - 4

Compliance with DR 2-105 (A) (4) is clearly required for all

lowa lawyers who advertise specific fields of practice. The

requirement is not confined to those lawvers who would limit

their practice as Wherry suggests.

II. Until two decades ago, state supreme courts were

free to prohibit lawyer advertising. In Virginia Pharmacy

Board v. Virginia Citizens Consumer Counsel, Inc.. 425 U.S.

748, 770-71, 96 S. Ct. 1817, __, 48 L. Ed. 2d 346, 363-64

(1976), the United States Supreme Court for the first time

extended first amendment protection to commercial speech.

The following year Bates held that lawyer advertising is

commercial speech and entitled to limited first amendment

protection. Bates, 433 U.S. at 383, 96S. Ct. at, _, 53 L. Ed.

2d at 835.

The limited protection for commercial speech is less

than afforded other forms of expression such as political

speech. Board of Trustees v. Fox, 492 U.S. 469, 477, 109 S.

Ct. 3028, 3033, 106 L. Ed. 2d 388, 402 (1989). Commercial

speech by members of the learned professions, because it

poses special problems, may justify more restrictions than

would be appropriate for other commercial speech. /n re

R.M.J., 455 U.S. 191, 202, 102 S. Ct. 929, 937, 71 L. Ed. 2d

64, 73 (1982). Advertising by the legal profession may

warrant even more restrictions than advertising by those of

other learned professions. Edenfield v. Fane, 507 U.S. 761.

__» 113 S.Ct. 1792, , 123 L. Ed. 2d 543, 558 (1993).

The subject of commercial free speech rights for

lawyers wishing to advertise was recently analyzed in Florida

~

Apdx A - 5

Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371, 132

L. Ed. 2d 541 (1995), where it was said:

[W]e engage in "intermediate" scrutiny of

them under the framework set forth in Central

Hudson Gas & Electric Corp. v. Public

Service Comm'n of N.Y., 447 U.S. 557, 100 S.

Ct. 234-3, 65 L. Ed. 2d 341 (1980). Under

Central Hudson, the government may freely

|

|

|

restrictions on commercial speech, analyzing

regulate commercial speech that concerns

unlawful activity or is _ misleading.

Commercial speech that falls into neither of

these categories, like the advertising at issue

here, may be regulated if the government

satisfies a test consisting of three related

prongs: first, the government must assert a

substantial interest in support of its regulation; |

second, the government must demonstrate that

the restriction on commercial speech directly

and materially advances that interest; and

third, the regulation must be "narrowly

drawn."

Florida Bar, 515 U.S. at___, 115 S. Ct. at__, 132. L. Ed. |

2d at 549 (citations emitted).

We think our advertising rule easily satisfies the three-

prong test. lowa government, particularly its judicial branch,

has a clear responsibility to protect the public interest in

Apdx A - 6

9 dt

informed selection of legal representation. False claims of

expertise are a real danger to those who need and are

searching for legal services. Morris, 490 N.W.2d at 808

(unqualified lawyer listing field of practice resulted in harm

to client relying on the advertisement): see also Bates, 433

U.S. at 377, 97 S. Ct. at 2705, 53 L. Ed. 2d at 831

(recognizing substantial state interest in fostering rational.

intelligent, and voluntary decision making in determining the

need for legal services and selecting a lawyer).

DR 2-105(A)(4) is our carefully considered attempt to

protect the public interest in making this informed decision.

It does so by requiring a minimum of specialized training by

those who pose in their advertising as specialists in a listed |

field. If we are to be criticized for our efforts, it might well be Hl

for drawing our requirements too narrowly-that is, for not

requiring much more training. The rule was designed by

striking a balance between-on the one hand-the public's right

to have a lawyer qualified in the field advertised and--on the

other hand-in not making the training requirements more i

onerous than we felt absolutely necessary to justify the i

advertised claims. The rule offers only limited protection, but

the limitation was thought necessary in order to satisfy the

third prong of the Central Hudson test. We think the rule is a

reasonable accommodation. See Edenfield, 507 U.S. at 767,

113 S. Ct. at 1798, 123 L. Ed. 2d at 553 ("[L]aws restricting

commercial speech, unlike laws burdening other forms of |

protected expression, need only be tailored in a reasonable i

manner to serve a substantial state interest in order to survive i

Apdx A - 7

First Amendment scrutiny.").

III. Wherry contends his advertisements are not

misleading, that readers would not take them to mean he

holds himself out as an expert, only that he performs

professional services in the listed fields of practice. We are

satisfied however that the advertisements were misleading

because they would be taken by many readers as a claim of

expertise in the listed fields. The record, as well as common

sense, supports this view.

The record contains a summary of findings by the

special master in the 1988 proceedings before our special

commission which studied the subject and recommended

approval of the challenged rule. A finding, which we

accepted, was that "the public, in relying on listings of fields

of practice, assumes that the attorney has additional education

and expertise in the advertised field of practice." We adopted

the rule in the hope it would bring a measure of reality to this

assumption. Other courts have reached the same conclusion.

See Texans Against Censorship, Inc. v. State Bar of Texas,

888 F. Supp. 1328, 1355 (E.D. Tex. 1995) ("Listing areas of

practice in an advertisement is likely to give consumers the

impression that the lawyer specializes or focuses his particular

practice in that area"), aff'd sub nom., Texans v. State Bar of

Texas, 100 F.3d 953 (Sth Cir. 1996); Lyon v. Alabama State

Bar, 451 So. 2d 1367, 1373 (Ala. 1984) ("[I}t is reasonable to

assume: that some readers of an advertisement . . . might

believe that the attorney is a specialist or has greater expertise

in performing the services advertised than attorneys who do

Apdx A- 8

not advertise."); Jn re Golden, 689 S.W.2d 869, 870 (Tenn.

1985) ("This court is convinced that many consumers and

potential consumers of legal services in Tennessee believe

that the mere listing, in advertisements, of specific areas of

legal practice implies specialization, certification or expertise

beyond that of the average lawyer.").

Those reading Wherry's advertisements implying

experience in wills were misled because, at the time, he had

only drawn one or two. He was similarly lacking in most of

the fields mentioned in his advertisements. We thus conclude

that advertising by an Iowa lawyer in fields of practice

without the training required in accordance with our rule is

misleading. We disagree with Wherry's contention that it is

only potentially misleading. So saying, we do not suggest

Wherry's view would make his case stronger because we are

authorized to protect the public from advertisements that are

only potentially misleading. Committee on Prof'l Ethics &

Conduct v. Humphrey, 377 N.W.2d 643, 646 (lowa 1985)

(upholding restriction on electric media advertising noting

that we claim "a substantial governmental interest in

regulating what we perceive as a very real potential for

abuse"), appeal dismissed for want of substantial federal

question, 475 U.S. 1114, 106 S. Ct. 1626, 90 L. Ed. 2d 174

(1986); see Zauderer v. Office of Disciplinary Counsel, 471

U.S. 626, 629, 105 S.Ct.2265, __, 85 L. Ed. 2d 652, 658-59

(1985) (affirmatively answering question of whether a state

"may seek to prevent potential deception of the public by

requiring attorneys to disclose in their advertising certain

Apdx A - 9

information regarding fee arrangements") (emphasis added);

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 454, 98 S. Ct.

1912, 1917, 56 L. Ed. 2d 444, 452 (1978) ("The solicitation

of business by a lawyer through direct, in-person

communication with the prospective client has long been

viewed . . . aS posing a significant porential harm to the

prospective client.") (emphasis added).

Wherry relies on /n re R.M.J., a case we find not in

point. R.M.J/. involved an absolute ban on advertising fields

of practice except by language specified by the rule. /n re

R.M.J., 455 U.S. at 193, 102 S.Ct. at, 71 L. Ed. 2d at 68.

Our ban is not so absolute. lowa lawyers, after meeting the

eligibility requirements, are free to advertise within

reasonable limits.

IV. Wherry also contends rule DR 2-105 (A) (4)

violates two clauses of the United States Constitution and is

also preempted by federal bankruptcy law. First he asserts DR

2-105 (A) (4) violates article 1, section 8 for the United States

Constitution (commerce clause). Because Wherry derives at

least twenty percent of his employment from Illinois, he

contends the regulation imposes a substantial and excessive

burden on interstate commerce. Wherry does not show how

his night to practice in interstate commerce is affected by the

challenged rule. He continues to practice in both lowa and

Illinois. Wherry can claim the rule restricts his ability to

advertise but such a restriction does not impose a substantial

and excessive burden on interstate commerce. He maintains

his office in lowa and eighty percent of his practice occurs

Apdx A - 10

here. We reject the challenge.

He further asserts the professional responsibility rule

is preempted by “any of the various interstate telephone and

communication acts." Wherry also claims the rule is an

unconstitutional regulation of bankruptcy in violation of

article 1, section 8 of the United States Constitution. He cites

no authority for either proposition. We find none and reject

them both.

V. Wherry next asserts DR 2-105(A)(4) violates equal

protection as guaranteed by the fourteenth amendment of the

United States Constitution, an assertion we also reject.’ The

rule treats all lawyers the same, and all lawyers are subject to

it. Equal protection requires only that those in similar

positions be treated alike. Bruns v. State, 503 N.W.2d 607,

610 (lowa 1993). In rejecting the argument on this basis, we

do not imply that the equal protection analysis is even

applicable when 2 commercial speech issue was justiciable in

the claim, a matter we do not decide. See United States v.

Edge Broad. Co., 509 U.S. 418, , 113 S. Ct. 2696, _,

125 L. Ed. 2d 345, 353 (1993); Posadas de Puerto Rico

Assocs. v. Tourism Co., 478 U.S. 328, 331. 337-38, 106 S. Ct.

2968, 2971, 2975, 92 L. Ed. 2d 266, 274, 278 (1986).

VI. The closest question is with the recommended

*Wherry seems to make a separate argument that the

challenged rule lacks a rational basis. Although he did not so state,

we assume the argument stands on his equal protection claim and

falls with it.

Apdx A - 11

sanctions--a public reprimand. In view of his prior private

admonition for violating the same rule. Wherry's obdurate

stand cannot be ascribed to a lack of experience. Neither can

it be attributed alone to his desire to mount a constitutional

test. A "safe harbor" was available to him. Committee on

Prof'l Ethics & Conduct v. Humphrey, 355 N.W.2d 565, 569

(lowa 1984) (safe harbor administrative system available for

challenging advertising rules), vacated on other grounds, 472

U.S. 1004, 105 S. Ct. 2693, 86 L. Ed. 2d 710 (1985).

With some reservations, we adopt the

recommendation. For any future violations, we will take into

consideration both Wherry's admonition and this reprimand.

James C. Wherry is_ reprimanded for his

unprofessional conduct in violating DR 2-105 (A) (4) of the

lowa code of professional responsibility for lawyers.

ATTORNEY REPRIMANDED.

Apdx A - 12

GRIEVANCE COMMISSION

OF THE

SUPREME COURT

OF THE

STATE OF IOWA

+

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND RECOMMENDATION

FILED, APRIL 22, 1997

+

BEFORE THE GRIEVANCE COMMISSION

OF THE SUPREME COURT OF IOWA

IOWA SUPREME COURT __)

BOARD OF PROFESSIONAL )

ETHICS & CONDUCT, ) Docket No. 401

Complainant, )

VS. )

) FINDINGS OF FACT,

JAMES C. WHERRY, ) CONCLUSIONS OF

Respondent. ) LAW AND

) RECOMMENDATION

)

)

This matter came on for a hearing before the 125th

Division of the Grievance Commission. Commission

members who heard the evidence were: Richard S. Fry,

Candice A. Wilcox, Charles M. Kiple, Cathy Whittlesey, and

Margaret T. Lainson, as President of the Division.

Complainant was represented by attorney Charles L.

Harrington. The Respondent was present and represented

himself.

Evidence was received and arguments heard. By

agreement of the parties, the record was left open in order that

an Affidavit from Norman F. Bastemeyer could be submitted.

In addition, Complainant was hoping to obtain a transcript of

a public hearing which was held in 1988 pertaining to

Apdx B - 13

proposed changes to the Supreme Court Professional

Responsibility Disciplinary Rules. The Bastermeyer affidavit

has been received. The 1988 transcript was not provided to

the division. 2

Both sides filed briefs. The complainant filed a reply

brief .

FINDINGS OF FACT

The Respondent, James C. Wherry is an attorney

licensed to practice law in both Iowa and Illinois. At all times

relevant to the issues before the Grievance Commission

Panel, Mr. Wherry's primary place of business has been in

Scott County, Iowa. He testified that approximately 80% of

his law practice occurred in Iowa and 20% in Illinois.

Mr. Wherry ts a graduate of the University of lowa

College of Law. He received his degree in 1991 and was

licensed in June of that year. Respondent testified that while

in law school, he focused his attention on courses involving

commercial transactions. During law school he was a

research assistant for both professor Burns Weston and

professor Patrick Bauer. Upon graduation from law school,

Mr. Wherry was a law clerk for Judge William Edmunds,

bankruptcy judge of the Northern Judicial District of Iowa.

Mr. Wherry began his private practice in Davenport, Iowa in

1992.

In the complaint, as amended, the lowa Supreme

Apdx B - 14

‘

Court Board of Professional Ethics and Conduct alleges that

Mr. Wherry has violated DR2-105 in that he has advertised in

telephone directories in various areas (bankruptcy, wills,

divorce, and social Security appeals) without having complied

with the certification requirements of DR2-105. Mr. Wherry

acknowledged that he had not complied with the certification

requirements and further admitted that he had advertised in

the yellow pages of the various telephone directories as

alleged by the Board.

The panel believes it appropriate to recite some of the

background information which was presented at the hearing.

The evidence established that James Wherry has a quite

extensive background in the area of bankruptcy. As stated

above, he served as a clerk for the Honorable William

Edmunds, bankruptcy judge of the Northern District of lowa.

Mr. Wherry testified that approximately 60% of his practice

is in the area of bankruptcy. He has been active and has

joined several professional organizations focusing on

bankruptcy matters. James Wherry testifies that he is the

author of two articles which have been published in

professional journals.’ In addition he was coauthor of a paper

*Wherry Commentary: The 1992 Amendment of Iowa's

Pension Benefit Exemption 92 lowa Law Alert 92-76 (Iowa 1992).

Wherry, Support Obligations and Student Loans in Chapter

13: A Look at Unfair Discrimination 6NACTT, 19 (April, 1994)

Goodman and Wherry. Drafting Chapter 13 Plans Lecture

Apdx B - 15

which was presented along with a lecture at the meeting of the

Federal Bar Association Bankruptcy Conference held in Des

Moines, lowa in October, 1994. Mr. Wherry testified that he

is involved in approximately 30 bankruptcy matters each

month. Mr. Wherry testified that he is now in compliance

with the eligibility requirements to advertise as a specialist in

bankruptcy, but he had not filed the proper documents to

comply with the eligibility requirements of DR2-105(A)(4).

He did not indicate at the hearing that he planned to make this

application.

Mr. Wherry testified that he began to advertise in the

yellow pages of phone books his availability to practice in the

field of bankruptcy shortly after he began his private practice

in 1992.

James Wherry testified that he believes he began

advertising his availability to practice in the area of "wills"

and "divorce" one year later. At the time he began advertising

his availability to practice in the area of "wills" he had drawn

only one or two wills. According to Wherry's testimony, he

had been involved in 10-20 divorce cases before he began his

telephone directory advertising. Respondent testified that at

the current time he believes that approximately 10% of his

practice is in the family law area. He believes that he has

drawn approximately 20 wills in the five and a half years he

and Paper 1994 Annual Federal Bar Association Bankruptcy

Conference in Des Moines, October 1994.

Apdx B - 16

Ge ee ee setae iely

has been in private practice. James Wherry testified that he

views himself as competent in both the area of wills and the

area of divorce.

In 1993 or 1994 James Wherry received a private

admonition from the Committee on Professional Ethics and

Conduct of the lowa Bar Association. This private

admonition was based upon the telephone directory

advertising which James Wherry was doing at that time.

After receiving the private admonition, Mr. Wherry continued

with his telephone directory advertising. In 1996, James

Wherry also began to advertise that he was available to

practice in the field of Social Security appeals.

As stated earlier, James S. Wherry stipulated that he

was in violation of DR2-105(A)(4). It is his position that the

disciplinary rule, as written and as enforced, violates his

rights under the United States Constitution to commercial free

speech. As more fully set forth in his Answer and in the Brief

filed with the Commission panel, James Wherry claims that

the disciplinary rule does not promote a_ substantial

governmental interest and that it is not narrowly drawn. In

addition Mr. Wherry claims that no specific wrong is being

done.

CONCLUSIONS OF LAW

The burden of proof upon the complainant to sustain

a finding of a disciplinary violation is to show such a

violation by a convincing preponderance of the evidence.

Apdx B - 17

ee

This is a greater quantum of evidence than is required in a

civil trial, but less than that which is required to sustain a

conviction in a criminal case. Committee on Professional

Ethics and Conduct v. Garrison, 515 N.W.2d 25 (lowa 1994).

A prior sanction and past misconduct may be considered on

the issue of sanctions. Committee on Professional Ethics and

| Conduct v. Raney, 512 N.W.2d 569 (lowa 1994). The

violation of the disciplinary rule is not at issue in this case.

Defendant has stipulated that his conduct is in violation of the

rule. The justification and legal basis for his actions have

been set forth in his testimony, his pleadings and his brief.

It is the opinion of this panel, that we do not have the

authority to make a determination as to the constitutionality

of a disciplinary rule of the lowa Supreme Court, That

decision rests with other bodies. A violation of a disciplinary

i

| rule has been admitted. The action taken by this panel is

| based upon the admission by Respondent of a violation of

| DR2-105.

RECOMMENDATION _

In making its recommendation, the Commission is

mindful of the fact that many attomeys advertise in the yellow

pages of phone books. Numerous ads, including those of

Respondent were entered into evidence in this matter. The

panel is also aware of the fact that Respondent had previously

received a private admonition from the Committee on

Professional Ethics and Conduct of the lowa Bar Association

Apdx B - 18

and that after receiving this private admonition, the

Respondent did not cease his conduct in violation of the

disciplinary rule.

Based upon the admitted violation of the disciplinary

rule and the past private admonition, it is the unanimous

recommendation of this panel that Respondent James S.

Wherry receive a public reprimand for his violation of the

duty. The recommendation of the panel being unanimous,

each of the members of this division of the Grievance

Commission has empowered the President of the Division to

sign and file these Findings of Fact, Conclusions of Law and

Recommendation on behalf of the Drvision.

DATED this 17th day of April, 1997.

THE GRIEVANCE COMMISSION OF

THE SUPREME COURT OF IOWA

ONE HUNDRED TWENTY-FIFTH DIVISION

By: Margaret Lainson

President

Apdx B - 19

;

:

’

:

:

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

o—

RELATED CASE OPINION

+

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

JAMES C. WHERRY, ?

on behalf of himself °

and others similarly situated, *

Plaintiff, - CIVIL NO. 3-95-70005

*

v. .

’ MEMORANDUM

THE IOWA STATE ’ OPINION, RULING

SUPREME COURT . GRANTING MOTION

BOARD OF “ TO DISMISS IN PART,

PROFESSIONAL ETHICS * AND GRANT OF

AND CONDUCT, et al., . TIME TO SHOW

Defendants . CAUSE

James Wherry brings suit against the Iowa State

Supreme Court Board of Professional Ethics and Conduct

("Ethics Board"); Norman Bastemeyer, as administrator of the

Ethics Board; the Honorable Arthur A. McGiverin, Chief

Justice of the lowa Supreme Court; and the State of lowa.

Wherry, a lawyer licensed to practice in lowa, contends that

various rules relating to lawyer advertising contained in the

lowa Code of Professional Responsibility are

Apdx C - 20

unconstitutional. He seeks an order enjoining enforcement of

these rules. Defendants move to dismiss and plaintiff resists.

The motion is submitted.

Background

The lowa Code of Professional Responsibility for

Lawyers ("Code") sets forth standards of conduct and ethical

principles to be used as a guide for lawyers in practicing law

and as a basis for disciplinary action for lawyers who fail to

meet the Code’s minimum standards. Enforcement of the

Code is a three-step process. The Ethics Board, consisting of

seven lawyers and two lay persons appointed by the lowa

Supreme Court, is responsible for initiating, receiving, and

processing complaints.’ After investigating a complaint

against an attorney the Ethics Board either dismisses the

complaint, admonishes or reprimands the attorney, or files

and prosecutes a complaint against the attorney before the

Grievance Commission of the lowa Supreme Court. lowa

Sup.Ct.R. 118.2. if the Board admonishes an attorney, there

is no provision in the Rules for review by the Grievance

Commission.

*The Board was created on January 3, 1995. See lowa

Sup.Ct.R. 118.2. Before that date, the functions of the Board were

performed by the Committee on Professional Ethics and conduct

of the lowa State Bar Association. To avoid confusion, the body

that initiates the disciplinary process and processes complaints will

be referred to as the "Ethics Board," including pre-1995 actions

that were in fact performed by the Committee on Professional

Ethics and Conduct of the lowa State Bar Committee.

Apdx C - 21

~The Grievance commission also is comprised of

attorneys and lay persons appointed by the lowa Supreme

Court. lowa Sup.Ct.R. 118.1. After the Ethics Board files a

complaint with the Grievance Commission, the Commission

holds evidentiary hearings and either dismisses the complaint,

privately admonishes the attorney, or recommends to the lowa

Supreme Court that the attorney be reprimanded or that the

attorney's license to practice be suspended or revoked. lowa

Sup.Ct.R. 118.7-9. If the Grievance Commission

recommends a reprimand, suspension, OF revocation, a

"report" is filed with the lowa Supreme Court and the case is

reviewed de novo. Iowa Sup.Ct.R. | 18.9. If the Grievance

Commission dismisses the complaint or issues a private

admonition, no report is made to the Supreme Court, though

all dispositions are filed with the Court. lowa Sup.Ct.R.

118.9. The Rules have no provision that would allow an

attorney to appeal to the lowa Supreme Court from a

Grievance commission determination that he be privately

admonished. Whether the attorney could obtain review by the

jowa Supreme Court using some form of action or procedural

mechanism is not addressed by the parties.

The controversy in this case involves the Code's

regulation of lawyer advertising. one such provision of the

Code states that before a lawyer may advertise a specific

practice area, he must file a report with the Commission on

Continuing Legal Education to demonstrate that the lawyer

devoted the greater of 200 hours or twenty percent of the

Apdx C - 22

lawyer's time to the specified practice area for the past two

years, and that the lawyer completed at least ten hours of

Continuing Legal Education courses in the specified practice

area. DR 2-105 (A) (4). In addition, the Code states that if a

lawyer advertises a specific practice area, he may not also

advertise that he has a "general practice." DR 2-105(B).

In 1993, Wherry placed an ad in the Quad Cities,

lowa, U.S. West Direct Yellow Pages that stated, among other

things, the following: "Available to Practice in But Not

Limited to Bankruptcy." Directly below the word

"bankruptcy" the ad contained the phrase "General Practice."

Wherry had not complied with the reporting requirements of

DR 2-105(A)(4). Wherry was notified by the Ethics Board

that his ad was in violation of DR 2-105 (A) (4) and DR 2-

105(B) of the Code and was ultimately privately admonished

by the Ethics Board. The Ethics Board did not file a

complaint against Wherry with the Grievance Commission

and the matter was ended.

Wherry then placed an ad in the 1994 phone book.

The ad again contained the language that he was available to

practice in bankruptcy, and in addition, listed the specific

practice areas of child support, divorce, and wills. The new

ad also contained the phrase "general practice." On December

28, 1994, the Ethics Board notified Wherry that his ad

appeared to be in violation of the same code provisions and

that the Ethics Board was initiating an investigation. The

Ethics Board asked Wherry to submit a response on the day

Apdx C - 23

| ™

his response was due, Wherry filed his complaint in this

court. Wherry contends that the advertising rules he is

alleged to have violated. as well as other, unrelated

advertising rules contained in the Code, are unconstitutional.

He seeks an order enjoining enforcement of these rules. His

request for a temporary restraining order enjoining

enforcement of the Code's advertising rules was denied by the

court on January 20, 1995.

Discussion

Defendants contend the case should be dismissed

under the doctrine of Younger abstention. Younger v. Harris,

401 U.S. 37 (1991). While federal courts have a "virtually

unflagging obligation" to exercise their jurisdiction, this

jurisdiction is limited by principles of equity, comity, and

federalism. Deakins v. Monaghan, 484 U.S. 193, 206 (1988)

(citation omitted); see also Alleghany Corp. v. McCartney,

896 F.2d 1138, 1142 (8th Cir. 1990) . The Younger

abstention doctrine holds that, absent extraordinary

circumstances, federal courts should not enjoin pending state

criminal proceedings.

The notion of "comity" includes "a proper

respect for state functions, a recognition of the

fact that the entire country is made up of a

Union of separate state governments, and a

continuance of the belief that the National

Government will fare best if the States and

their institutions are left free to perform their

Apdx C - 24

separate functions in their separate ways."

‘ ‘nv. Garde

457 U.S. 423, 431 (1982) (citations omitted) . The Younger —

doctrine also applies to noncriminal cases if: (1) there is an

ongoing state judicial proceeding; (2) important state interests

are at stake; and (3) there is an adequate opportunity to raise

constitutional challenges in the state proceedings. See

Middlesex at 432; Alleghany, 896 F.2d at 1142.

Wherry argues that Younger does not apply in this

case because the third prong of the analysis is not met. He

contends that he has no opportunity to raise his constitutional

claims because neither the Ethics Board nor the Grievance

~Commission can consider the constitutionality of the rules

they enforce, and further, that the Ethics Board and Grievance

Commission could choose to privately admonish him which

is an unappealable sanction that would prevent him from

raising his constitutional claims with the lowa Supreme

Court. In support of his claim that the Ethics Board and

Grievance commission cannot consider constitutional

challenges, Wherry states only that counsel for defendants

| conceded this point at a hearing on his motion for a temporary

| . restraining order. Defendants state that they made no such

concession. Their position is that the Ethics Board and the

Grievance Commission can consider constitutional claims but

that the lowa Supreme Court would ultimately decide those

claims if appealed. Wherry points to nothing in Iowa's

statutes or Supreme Court Rules that would bar these bodies

Apdx C - 25

—

from considering a constitutional claim.

The following passage from Middlesex, also a case

involving attorney disciplinary proceedings, applies equally

to Wherry's situation:

Respondent Hinds contends that there was no

opportunity in the _ state disciplinary

proceedings to raise his federal constitutional

challenge to the disciplinary rules. Yet Hinds

failed to respond to the complaint filed by the

local Ethics Committee and failed to even

attempt to raise any federal constitutional

challenge in the state proceedings. Under

New Jersey's procedure, its Ethics C ommittee

constantly are called upon to interpret the state

disciplinary rules. Respondent Hinds points

to nothing existing at the time the complaint

was brought by the local C ommittee to

indicate that the members of the Ethics

Committee, the majority of whom are lawyers,

would have refused to consider a claim that

the rules which they were enforcing violated

federal constitutional guarantees. Abstention

is based upon the theory that "the accused

should first set up and rely upon his defense in

the state courts, even though this involves a

challenge of the validity of some statute,

unless it plainly appears that this course would

Apdx C - 26

not afford adequate protection."

Middlesex, 423 U.S. at 435 (emphasis original) (citations

omitted) .

Like the attorney in Middlesex, Wherry fails to

demonstrate that the members of the Ethics Board and

Grievance Commission, the majority of whom are lawyers,

would refuse to consider his constitutional challenge to the

rules they are enforcing. See Ohio Civil Rights Comm'n v.

Dayton Christian Schs., Inc., 477 U.S. 619, 629(1986) (state

administrative commission would presumably "construe its

own statutory mandate in the light of federal constitutional

principles") . Wherry has made no showing that he even

attempted to raise his constitutional claims, either in the

current state proceeding or in his first encounter with the

Ethics Board. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

15 (1986) (" [W] hen a litigant has not attempted to present

his federal claims in related state-court proceedings, a federal

court should assume that state procedures will afford an

adequate remedy, in the absence of unambiguous authority to

the contrary."). Finally, because Wherry has already been

privately admonished for placing an ad in violation of the

Code, the likelihood that he will again receive that sanction,

while of course possible, is far from certain. In all probability

_ then, in addition to raising his constitutional claims before the

Ethics Board and Grievance Commission, Wherry will

ultimately be able to raise them before the lowa Supreme

Court as well. In view of the above, I cannot conclude that

Apdx C - 27

the Iowa scheme does not provide Wherry with an "adequate

opportunity" to raise his constitutional claims.

Wherry argues in the alternative that even if the

Younger doctrine has some application in this case, it cannot

be applied to those allegations in his complaint that are

unrelated to the Ethics Board's complaint and investigation.

For instance, Wherry challenges the constitutionality of

various Code provisions that regulate lawyer advertising in

the electronic media. Because these issues are not part of the

proceeding before the Ethics Board, he argues, he has no

opportunity to raise his constitutional claims as to these rules

and therefore the Younger doctrine cannot apply.

The court need not address this argument at this time

because as to those Code provisions that are not part of the

state proceedings, Wherry has failed to allege a sufficient

"injury" to present a justiciable question to this court. Article

III of the Unites States Constitution limits the "judicial

power" to the resolution of "cases" and "controversies."

Separation of Church & State, Inc. , 454 U.S. 464, 471

(1982). “At a minimum, Article III ‘requires the party who

invokes the court's authority to show that he personally has

suffered some actual or threatened injury as a result of the

putatively illegal conduct of the defendant.’” Goos v. LC.C.,

911 F.2d 1283, 1287 (8th Cir. 1990) (quoting Gladstone,

Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)). A

party must allege "such a personal stake in the outcome of the

Apdx C - 28

controversy as to assure the concrete adverseness which

sharpens the presentation of issues." Duke Power Co. v.

Carolina Envtl, Study Group, Inc., 438 U.S. 59, 72 (1978).

The injury in fact requirement "serves to distinguish a person

with a direct stake in the outcome of a litigation--even though

small--from a person with a mere interest in the problem."

Nati Soe ey

Stabilization Serv., 901 F.2d 673, 677 (8th Cir. 1990).

Aside from the Code provisions that are the subject of

the disciplinary proceedings before the Ethics Board, Wherry

fails to sufficiently allege any actual or threatened injury from

the enforcement of the Code provisions he challenges. It is

my conclusion then that the complaint, insofar as it relates to

the Code provisions that are the subject of the state

disciplinary proceedings, must be dismissed under the

Younger doctrine. Insofar as the complaint challenges Code

provisions that are not part of the state disciplinary

proceedings, Wherry will be granted time to show cause why

the complaint should not be dismissed for lack of standing.

The court will address the possible application of the Younger

doctrine to these remaining claims, if necessary, at that time.

Ruling and Order

The motion to dismiss, filed by defendants on January

23, 1995, is GRANTED as it relates to plaintiff's claims

challenging the constitutionality of DR 2-105(A) (4) and DR

2-105(B) of the lowa Code of Professional Responsibility.

The court reserves ruling on the motion as it applies to the

Apdx C - 29

remainder of plaintiffs clams. IT IS ORDERED that

plaintiff's claims challenging the constitutionality of DR 2-

105 (A) (4) and DR 2-105 (B) of the lowa Code of

Professional Responsibility be DISMISSED.

IT IS FURTHER ORDERED that plaintiff has until

on or before May 19, 1995, within which to show cause why

the complaint should not be dismissed for lack of standing.

Defendants are granted to and including fourteen days from

the date plaintiff files his brief within which to file a response.

Dated this __5_ day of May, 1995.

__/s/_ Harold D. Vietor

HAROLD D. VIETOR, District Judge

Southern District of lowa

Apdx C - 30

IOWA RULES OF COURT

+

DISCIPLINARY RULES

+

lOWA :

RULES OF COURT

STATE AND FEDERAL

1995 _

WITH AMENDMENT RECEIVED

THROUGH AUGUST 1, 1994

DISCIPLINARY RULES

DR 2-101. PUBLICITY

(A) Advertising in General. A lawyer shall not, on

the lawyer's own behalf, or that of a partner, associate, or any

other lawyer affiliated with the lawyer or the lawyer's firm,

use, or participate in the use of, any form of public

communication which contains any false, fraudulent,

misleading, deceptive, self-laudatory, or unfair statement,

which contains any statement or claim relating to the quality

of the lawyer's legal services, which appeals to the emotions,

prejudices, likes, or dislikes of a person, or which contains

any claim that is not verifiable. In all communications under

DR 2-101 and DR 2-102 the lawyer may use restrained

subjective characterizations of rates or fees such as

“reasonable”, "moderate", and “very reasonable", but shall

avoid all unrestrained subjective characterizations of rates or

Apdx D - 31

Se oS ee ee ee

°° -',! .-eare ve

fees, such as, but not limited to, “cut-rate", "lowest", "give-

away", "below-cost", "discount", and “special”. All such

communications shall contain the following disclosure: "The

determination of the need for legal services and the choice of

a lawyer are extremely important decisions and should not be

based solely upon advertisements or self-proclaimed

expertise. This disclosure is required by rule of the Supreme

Court of lowa.” .

(B) Method of Dissemination. Subject to the

limitations contained in these rules:

(1) General Print Media. Lawyer advertising may be

communicated to the public in newspapers, periodicals, trade

journals, “shoppers”, and other similar alvertising media,

published and disseminated in the geographic area in which

the lawyer maintains offices or in which asignificant part of

the lawyer's clientele resides, PROVIDED THAT the

publisher agrees in writing to print al the disclaimers

required by these rules in type size not smaller than 9-point

on each page bearing the ad.

(2) Lawyer Telephone and City Directory cistings. A lawyer

licensed to practice law in lowa may permt the inclusion of

the lawyer's name, address, telephore number, and

designation as a lawyer, in a telephone or city directory,

subject to the following requirements.

Apdx D - 32

(a) Alphabetical Listings. The lawyer's name, address,

and telephone number and designation as a lawyer,

only, may be listed alphabetically in the residential,

business, and classified sections of the telephone or

city directory.

(b) Classified Listings. Listings in the classified

section shall be under the general heading "Lawyers"

or "Attorneys" except that a lawyer who has complied

with DR 2-105(A)(4) may be listed in no more than

three classifications or headings identifying those

fields or areas of practice as fisted in DR 2-105(A)(2).

By further exception, a lawyer qualified under DR 2-

105 to practice in the field of taxation law also may be

listed under the general heading "Tax Preparation" or

"Tax Return Preparation,” either in lieu of or in

addition to, the general heading "Lawyers" or

"Attorneys". The disclaimers required by these rules

must also appear under any heading in which the

lawyer is listed.

(c) Display and Box Advertisements. All other

telephone or city directory advertising permitted by

these rules, including display or box advertisements,

shall include the disclosures required by DR 2-

101(A), (D), and (F), unless such disclosures are

published as provided in DR 2-101(B)(1).

(3) Law Firm Telephone and City Directory Listings. A \aw

Apdx D - 33

firm, all of whose lawyers are licensed to practice law in

Iowa, may permit the inclusion of the firm name, address, and

telephone number in a telephone or city directory, subject to

the following requirements.

(a) Alphabetical Listings. The firm name, a list of its

members, address, and telephone number, may be

listed alphabetically in the residential, business, and

classified sections of the telephone or city directory.

(b) Classified Listings. Listings in the classified

section shall be under the general heading "Lawyers"

or "Attorneys," except that a law firm may be listed in

each of the classifications or headings identifying

those fields or areas of practice as listed in DR 2-

105(A)(2) in which one or more members of the firm

are qualified.

(c) Display and Box Advertisements. All other

rT telephone or city directory advertising permitted by

these rules, including display or box advertising, may

contain the firm name, address, and telephone

number, and the names of the individual lawyer

members of the firm. All display or box

a) advertisements shall include within the ad the

disclosures required by DR 2-101(A), (D), and firm

unless such disclosures are published as provided in

DR 2-101(B)(1).

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(4) Solicitation.

Apdx D - 34

(a) In-Person Solicitation. A lawyer may not engage

in the in-person or telephone solicitation of legal

business under any circumstance.

(b) Written Solicitation. A lawyer who wishes to

engage in written solicitation by direct mail to persons

or groups of persons who may be in need of specific

or particular legal services because of a condition or

occurrence which is known or could upon reasonable

inquiry be known to the soliciting lawyer shall, prior

to the dissemination of the solicitation, file all such

proposed written documents or solicitations with the

committee on professional ethics and conduct of the

Iowa State Bar Association. The soliciting lawyer

shall, in addition thereto, bear the burden of proof

regarding:

(i) the truthfulness of all facts

contained in the proposed communication;

(ii) how the identity and specific legal

need of the potential recipient were

discovered; and

(iii) how the identity and knowledge of

the specific need of the potential recipient were

verified by the soliciting lawyer.

All such written solicitations shall contain the disclosures

required by DR 2-101(A), (D), and firm No such

dissemination shall be made until the committee or its

designee shall, upon the facts presented, render a written

Apdx D - 35

finding that the solicitation is not false, deceptive, or

misleading. No information disseminated by the soliciting

lawyer shall make any reference to such submission and

finding. Each separate written solicitation intended for

~ dissemination must be submitted for a finding in accordance

herewith.

(c) Direct Mail. Information permitted by these rules

may be communicated by direct mail to the general

public other than persons or groups of persons who

may be in need of specific or particular legal services

because of a condition or occurrence which is known

or could with reasonable inquiry be known to the

advertising lawyer. All such communications shall

contain the disclosures required by DR 2-101(A), (D),

and (F).

(d) All communications authorized by paragraphs by

and "c" hereof and the envelope containing the same

shall, in addition to other disclosures that may be

required hereunder, carry the following disclosure in

red ink in_- 9-point' or _ larger type:

"ADVERTISEMENT ONLY". A copy of all direct

mail communications -shall be filed with the

administrator, or the administrator's designee, of the

committee on professional ethics and conduct of the

Iowa State Bar Association, acting as commissioners

of the supreme court as provided by court rule 118,

contemporaneously with the mailing of the

Apdx D - 36

communications to the general public and shall

contain the disclosures required by DR 2-101(A), (D),

and (F).

(5) Electronic Media. Information permitted by these

rules, articulated only by a single nondramatic voice, not that

of the lawyer, and with no other background sound, may be

communicated by radio or television, or other electronic or

telephonic media. In the case of television, no visual display

shall be allowed except that allowed in print as articulated by

the announcer. All such communications, to the extent

possible, shall be made only in the geographic area in which

the lawyer maintains offices or in which a significant part of

the lawyer's clientele resides, and shall contain the disclosures

required by DR 2-101(A), (D), and (F) and DR 2-105(A)(3).

(6) Biographical and Informational Brochures. Brochures or

pamphlets containing biographic and informational data as

permitted by these rules, shall only be disseminated directly

to clients, members of the Bar, or in response to direct

request, and shall include the disclosures required by DR 2-

101(A), (D), and (F), and DR 2-105(A)(3).

(7) Record Retention. Whether or not it contains fee

information, a lawyer shall preserve a copy of each

advertisement placed in a newspaper, the classified section of

the telephone or city directory, or periodical, and a tape of the

Apdx D - 37

——

radio, television, or other electronic or telephonic media

commercial, or recording, for at least three years and a record

of the date or dates and name of the publication in which it

appeared or the name of the medium through which it was

aired. 3

(C) Content (informational). The following

information shall be presumed to be informational and not

solely promotional:

J (1) Name, including name of law firm, names of

professional associates, addresses, telephone numbers, and the

designation "lawyer .... .. attorney", "law firm", or the like;

(2) Fields of practice, limitation of practice or

specialization, but only to the extent permitted by DR 2-105;

(3) Date and place of birth;

(4) Date and place of admission to the bar of state and

federal courts;

(5) Schools attended, with dates of graduation,

degrees, and other scholastic distinctions;

(6) Public or quasi-public offices;

(7) Military service;

(8) Legal authorships;

(9) Legal teaching positions;

(10) Memberships, offices, and committee

assignments in bar associations;

(11) Memberships and offices in legal fraternities and

_—

legal societies;

(12) Technical and professional licenses; and

Apdx D - 38

(13) Memberships in scientific, technical, and

professional associations and societies.

Nothing contained herein shall prohibit a lawyer front

permitting the inclusion in reputable law lists and law

directories intended primarily for the use of the legal

profession of such information as traditionally has been

included in these publications.

All such information shall be presented in a dignified

manner.

If the publication of any of the foregoing items (1)

through (13) inclusive would indicate an area or field of

practice such as, but not limited to, those set out in DR 2-

105(A)(2), there shall be contained within such

communication and contained in any ~electronic media

communication the disclosure required by DR 2-101(A) and

also a "notice to the public" in the following form:

Memberships and offices in legal fraternities

and legal societies, technical and professional

licenses, and memberships in scientific, technical and

professional associations and societies of law or field

of practice does not mean that a lawyer is a specialist

or expert in a field of law, nor does it mean that such

lawyer is necessarily any more expert or competent

than any other lawyer.

All potential clients are urged to make their

own independent investigation and evaluation of any

Apdx D - 39

lawyer being considered. This notice is required by

rule of the Supreme Court of Iowa.

(D) Content (Fee Information). The following fee

information may be communicated to the public in the

manner permitted by DR 2-101(B):

(1) Fee for an initial consultation;

(2) Availability upon request of either, a written

schedule of fees, or an estimate of the fee to be charged for

specific services, or both;

(3) Contingent fee rates, subject to DR 2-106(C),

provided that the statement discloses whether percentages are

computed before or after deduction of costs and ad-vises the

public that in the event of an adverse verdict or decision, the

contingent fee litigant could be liable for court costs,

expenses of investigation, expenses of medical examinations,

and costs of obtaining and presenting evidence; and

(4) Fixed fees or range of fees for specific legal

services or hourly fee rates provided thai, in print size at least

equivalent to the largest print used in setting forth the fee

information, the statement discloses:

(a) That the stated fixed fees or range of fees

will be available only to clients whose matters are

encompassed within the described services; and

(b) If the client's matters are not encompassed

within the described services, or if an hourly fee rate

is stated, the client is entitled, without obligation, to

Apdx D - 40

a specific written estimate of the fees likely to be

charged.

All such information shall be presented in a dignified

manner.

Unless otherwise specified in the — public

communication concerning fees, the lawyer shall be bound.

in the case of fee advertising in the classified section of the

telephone or city directory, for a period of at least the time

between printings of the directory in which the fee

advertisement appears and in the case of all other fee

advertising for a period of at least ninety days thereafter, to

render the stated legal service for the fee stated in the

communication unless the client's matters do not fall within

the described services. In that event or if a range of fees is

stated, the lawyer shall render the service for the estimated fee

given the client in advance of rendering the service.

A lawyer shall not, individually or on behalf of a law

firm or association, use the public communication of fee

information concerning specific legal services as an indirect

means of attracting clients for whom the lawyer performs

other legal services not related to the specific legal services

publicized.

(E) Content (Specific Legal Services). For purposes

of this rule, the term "specific legal services" shall be limited

to the following services:

(1) Abstract examinations and title opinions not

Apdx D - 41

including services in clearing title;

(2) Uncontested dissolutions of marriage involving no

disagreement concerning custody of children, alimony, child

support or property settlement [see DR 5-105(A) 1;

(3) ‘Wills leaving all property outright to one

beneficiary and contingently to one beneficiary or one class

of beneficiaries;

(4) Income tax returns for wage earners;

(5) Uncontested personal bankruptcies;

(6) Changes of name;

(7) Simple residential deeds:

(8) Residential purchase and sale agreements;

(9) Residential leases;

(10) Residential mortgages and notes;

(11) Powers of attorney; and

(12) Bills of sale.

The committee on professional ethics and conduct of

the lowa State Bar Association, acting as commissioners of

the supreme court as provided by court rule 118, on its own

motion or upon the request of a lawyer admitted to practice in

this state, shall, from time to time, consider and recommend

to the court proposed amendments to these rules expanding or

constricting the above list of "specific legal services". In

considering such amendments the committee shall apply the

following criteria which have guided the supreme court in

determining which services should be included in the above

list:

Apdx D - 42

EE <<

(1) The description of the service would not be

misunderstood by the average layperson or be misleading or

deceptive;

(2) Substantially all of the service normally can be

performed in the lawyer's office with the aid of standardized

forms and office procedures;

(3) The service does not normally involve a

substantial amount of legal research. drafting of unique

documents, investigation, court appearances, or negotiation

with other parties or their attorneys; and

(4) Competent performance of the service normally

does not depend upon ascertainment and consideration of

more than a few varying factual circumstances.

The committee shall adopt regulations, subject to the

approval of the supreme court, to provide a procedure to

receive and consider such requests from lawyers, and for the

prompt submission to this court of any appeal from a

determination adverse to such request. Said committee may

further issue, subject to the approval of the supreme court,

regulations further defining or describing "specific legal

services" within the meaning of this rule.

(F) Content (Institution of Litigation). In the event

that the communication seeks to advise the institution of

litigation, the communication must also disclose that the

filing of a claim or suit solely to coerce a settlement or to

harass another could be illegal and could render the person so

Apdx D - 43

filing liable for malicious prosecution or abuse of process.

(G) Content (Designation as Legal Clinic or

Center). The term "clinic", "center", or any other similar term

‘shall not be used in any communication to the public unless

the practice of the lawyer or the lawyer's firm is limited to

specific matters as described in DR 2-101(E) for which costs

of rendering the service can be substantially reduced because

of the repetitive nature of the services performed and the use

of standardized forms and office procedures.

(H) A lawyer recommended by, paid by, or whose

legal services are furnished by, a qualified legal assistance

organization may authorize, permit, or assist such

organization to use means of dignified commercial publicity,

which does not identify any lawyer by name, to describe the

availability or nature of its legal services or legal service

benefits.

(I) This rule does not prohibit limited and dignified

identification of a lawyer as a lawyer as well as by name:

(1) In political advertisements when the professional

status is germane to the political campaign or to a political

issue;

(2) In public notices when the name and profession of

a lawyer are required or authorized by law or are reasonably

pertinent for a purpose other than the attraction of potential

Apdx D - 44

clients;

(3) In routine reports and announcements of a bona

ride business, civic professional, or political organization in

which the lawyer serves as a director or officer;

(4) In and on legal documents prepared by the lawyer;

(5) In and on legal textbooks, treatises, and other legal

publications, and in dignified advertisements thereof; and

(6) In communications by a qualified legal assistance

organization, along with the biographical information

permitted under DR 2-101(B), directed to a member or

beneficiary of such organization.

(J) A lawyer shall not compensate or give anything of

value to representatives of the press, radio, television or other

communication medium in anticipation of or in return for

professional publicity in a news item nor voluntarily give any

information to such representatives which, if published in a

news item, would be in violation of DR 2-101(A).

(K) All disclosures required to be published by these

rules shall be in 9-point type or larger.

[Effective July 1, 1993; amended effective July 1, 1994.1

DR 2-102. PROFESSIONAL NOTICES,

LETTERHEADS, OFFICES. AND

SIGNS

Apdx D - 45

(A) A lawyer or law firm shall not use professional

cards, signs, letterheads, or similar professional notices or

devices, except that the following may be used if they are in

dignified form:

(1) A lawyer may accept employment by a close

friend, relative, former client (if the advice is germane to the

former employment), or one whom the lawyer reasonably

believes to be a client.

(2) A lawyer may accept employment that results from

personal participation in activities designed to educate

laypersons to recognize legal problems, to make intelligent

selection of counsel, or to utilize available legal services if

such activities are conducted or sponsored by any of the

offices or organizations enumerated in DR 2-103(D)(1)

through (4), to the extent and under the conditions prescribed

therein.

(3) A lawyer who is recommended, furnished or paid

by a qualified legal assistance organization enumerated in DR

2-103(D)(1) through (4) may represent a member or

beneficiary thereof, to the extent and under the conditions

prescribed therein.

(4) Without affecting the nght to accept employment,

a lawyer may speak publicly or write for publication on legal

topics so long as such activities do not emphasize the lawyer's

own professional experience or reputation and the lawyer

does not undertake to give individual advice,

(5) If success in asserting nghts or defenses of a client

Apdx D - 46

in litigation in the nature of a class action is dependent upon

the joinder of others, a lawyer-may accept, but shall not seek,

employment from those contacted for the purpose of

obtaining their joinder. [Effective July |. 1993.]

DR 2-105. DESCRIPTION AND

LIMITATION OF

PRACTICE

(A) A lawyer may be identified as practicing in or

limiting practice to certain fields of law as follows:

(1) A lawyer admitted to practice before the United

States Patent and Trademark Office may use the designation

"Patents", "Patent Attorney", "Patent Lawyer", or "Registered

Patent Attorney" or any combination of those terms, on the

lawyer's professional card, letterhead, office sign, professional

notice or announcement, all as otherwise allowed by DR 2-

102(A), and in newspapers, periodicals, telephone directory

listings. and legal directories, as otherwise allowed by DR 2-

101(B).

In addition to use of the designation "Patents", "Patent

Attorney", "Patent Lawyer", and "Registered Patent

Attorney", a lawyer admitted to practice before the United

States Patent and Trademark Office may use the designation

"Trademarks", "Trademarks and Copyright Law",

"Trademark Attorney", "Trademark Lawyer", or any

combination of those terms on the lawyer's professional card,

Apdx D - 47

le:terhead, office sign, and _ professional notice or

announcement, ail as otherwise allowed by DR 2-102(A), and

in newspapers, periodicals, telephone directory listings, and

legal directories as otherwise allowed by DR 2-101(B),

provided the lawyer satisfies the eligibility requirements of

DR 2-105(A)(4) in any one of the fields of practice of

"Patents", "Trademarks", or "Copyright Law" or combination

thereof.

(2) An individual lawyer who, in fact, limits practice

to certain fields of law or who is limiting practice primarily to

certain fields of law, and who satisfies the eligibility

requirements of DR 2-105(A)(4), may indicate such limitation

or description of practice by listing, in the manner provided

by DR 2-105(A)(3), not more than three of the following

fields of law practice in any communication otherwise

allowed by DR 2-102(A) and DR 2-101(B):

Administrative Law

Admiralty Law

Alternate Dispute Resolution

Antitrust and Trade Regulation

Appeals

Banking

Commercial and Retail! Collections

Constitutional Law

Corporation and Business Law

Criminal Law

Debt and Bankruptcy Law

Apdx D - 48

Domestic Relations and Family Law

Environmental Law

Health Law

Immigration Law

Insurance Law

International and Foreign Law

International Trade and Investment

Discrimination and Civil Rights Law

Labor Law

Malpractice or Professional Negligence

Military Law

Municipal Law

Pension and Profit Sharing Law

Personal Injury Law

Product Liability Law

Public Utility Law

Real Estate Law

Securities Law

Social Security Disability

Taxation Law

Trademarks and Copyright Law

Trial Law

Wills, Estate, and Probate Law

Workers' Compensation Law.

The committee on professional ethics and conduct of

the Iowa State Bar Association, acting as commissioners of

Apdx D - 49

the supreme court as provided by court rule 118 on its own

motion or upon the request of a lawyer admitted to practice in

this state. shall, from time to time consider and recommend to

the Court proposed amendments to these rules expanding or

restricting die permitted list of fields of law practice.

(3) Description or indication of limitation of practice

permitted by DR 2-105(A)(2) shall only be in the following

manner.

(a) If the lawyer accepts only legal matters in

that lawyer's listed fields of law practice. such listing

of fields of law practice shall be preceded by the

words "practice limited to... ."

(b) If the lawyer is practicing primarily in that

lawyer's listed fields of law practice, but’ also accepts

other types of legal matters. such listing of fields of

law practice shall be preceded by the words

"practicing primarily in... ."

(c) In the case of a description or indication of

limitation of practice communicated to the public in

the classified section of telephone directories,

| newspapers. periodicals, or legal directories, there

shall be contained within such communication, or

prominently displayed on the same page of such

communication, and contained in am electronic media

communication the disclosure required under DR 2-

1O1(A) and also a “Notice to the Public" in the

following form:

Apdx D - 50

"A description or indication of limitation of

practice does not mean that any agency or

board has certified such lawyer as a specialist

or expert in an indicated field of law practice,

nor does it mean that such lawyer 1s

necessarily any more expert or competent than

any other lawyer.

All potential clients are urged to make their

own independent investigation and evaluation

of any lawyer being considered. This notice is

required by rule of the Supreme Court of

lowa.”

In the case of a description or indication of limitation

of practice communicated to the public in the classified

section of telephone directories, a lawyer shall not permit that

lawyer's name to be listed under a heading or classification

other than "Attorneys" or "Lawyers." except as provided in

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

(4) Prior to communication of a description or indication of

practice permitted by DR 2-105(A)(2), a lawyer shall report

the lawyer's compliance with the following eligibility

requirements each year in the written report required to be

submitted to the Commission on Continuing Legal Education:

(a) The lawyer must have devoted the greater of 200

hours or twenty percent of the lawyer's time spent in

actual law practice to each separate indicated field of

practice for each of the last two calendar years: and

Apdx D - 51

(b) The lawyer must have completed at least ten.

hours of accredited Legal Education courses of study

in each separate indicated of practice during the

preceding calendar year.

Che first report of compliance may be made in 1979,

In reporting compliance with subsection (a). a statement of

compliance is sufficient. In reporting compliance with

subsection (b), the lawyer shall identify the specific courses

and hours which apply to each indicated field of practice.

Contents of the portion of the report required by this rule shall

be public information.

(B) If advertising uses the term general practice, no

reference to limited or restricted areas of practice is permitted.

If areas of practice under DR 2-105 are advertised. the term

general practice may not be used.

(C) The nature of one's professional practice. the types

of cases or matters handled. may not described other than as

permitted by DR 2-105 and DR

(D) If, due to hardship or extenuating circumstances.

a lawyer is unable to complete the hours of accredited

continuing legal education during the preceding calendar year

as required by D R 2-105(A)(4)(b), the lawyer may apply to

the commission on continuing legal education for an

extension of time in which to complete the hours. No

extension of time shall be granted unless written application,

here for shall be made on forms prescribed by the

commission. Extensions of time within which to fulfill the

Apdx D - 52

minimum educational requirements may. in individual cases

involving hardship or extenuating circumstances, be granted

by the commission for a period not to exceed six months

immediately following expiration of the year in which the

requirements Were not met.

(Effective July 1, 1993.)

Apdx D - 53