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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1021

## Text

\V/ " 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).

2 ES RE etre pd Ri asa tin Ne i a endiels ek gt RATE ET Ii RE IE: PAS bel Cli
pernameois : ,

pray totes oe
’ Qe: he ie 3 ep hernan
ne AR RO NE TN ON

(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:

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(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

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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

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(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:

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"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

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(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.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2093%3A1. Public record. Not legal advice.