Peel and the First Amendment

Peel and the First Amendment

A lawyer may tell the public that an organization has certified him as a specialist, but only on two conditions. An appropriate authority of a state, the District of Columbia, or a U.S. territory must have approved the certifying organization, or the American Bar Association must have accredited it, and the communication must clearly identify that organization by name.¹ The rule conditions the claim; it does not forbid it. Peel v. Attorney Registration and Disciplinary Commission of Illinois shows why a state that forbids such claims outright loses. Illinois barred lawyers, with narrow exceptions, from calling themselves ‘certified’ or ‘specialists’; the Supreme Court held that censuring a lawyer for a truthful certification claim violated the First Amendment; and the opinions in the case mark out what a state may still do. The three parts below take the facts and holding, the tools the plurality left to the states, and the concurring and dissenting opinions in turn.

Peel's Facts and Holding

The Illinois Supreme Court publicly censured Peel because his letterhead said the National Board of Trial Advocacy (NBTA) had certified him as a civil trial specialist, and the U.S. Supreme Court took the case to decide whether the First Amendment protects that statement.² The Court reversed by a vote of five to four, with no majority opinion.³ The reasoning below is therefore that of Justice Stevens's plurality opinion; the concurrence and dissent, taken up in the third part, show where the Justices parted company.

Illinois's rule let a lawyer designate the field in which he concentrated or limited his practice, but it added that, except as Rule 2-105(a) provided, “no lawyer may hold himself out as ‘certified’ or a ‘specialist.’”⁴ The exceptions covered patent, trademark, and admiralty lawyers.⁵ Peel's letterhead, which since 1983 had referred to his NBTA certification and to the three states where he was licensed, carried two separate statements: “Certified Civil Trial Specialist By the National Board of Trial Advocacy” and “Licensed: Illinois, Missouri, Arizona.”⁶

The NBTA was a bona fide private group with objective and demanding standards for the periodic certification of lawyers experienced and competent in trial work.⁷ An applicant needed at least five years of civil trial practice, with at least 30 percent of professional time in civil trial litigation in each of the five years before applying; lead-counsel experience in at least 15 completed civil trials; 45 hours of continuing legal education in the previous three years; and confidential review by six attorneys and a judge.⁸ The supreme courts of Minnesota and Alabama had each examined those procedures. Minnesota found that the NBTA “applies a rigorous and exacting set of standards and examinations on a national scale,” and Alabama concluded that its certification indicates trial-advocacy expertise above the level required for admission to the bar generally.⁹ These details carry the case, because a certification is worth only as much as the organization behind it.¹⁰

Peel was first charged under Disciplinary Rule 2-101(b), which targets misleading statements, yet his letterhead was not found to violate it. The censure rested instead on Rule 2-105(a)(3), the ban on certification claims.¹¹ No one contended that any client or potential client was actually misled. Neither the Commission nor the Illinois Supreme Court made a factual finding of actual deception or misunderstanding; each concluded, as a matter of law, that a claim of being ‘certified’ as a ‘specialist’ was necessarily misleading when the state ran no official certification program.¹²

The Illinois Supreme Court adopted the Commission's recommendation of censure and held that the First Amendment did not protect the letterhead, which it found misleading in three ways.¹³ Each ground predicted that readers would draw a false inference, and the plurality tested each prediction against what the letterhead actually said.

The first concern was juxtaposition. Because the letterhead set certification by the NBTA beside licensure by Illinois, Missouri, and Arizona, the Illinois court thought the public could conclude that Peel's authority to practice trial advocacy came solely from the NBTA. It reasoned that the letterhead failed to distinguish voluntary certification by an unofficial group from licensure by an official body and so intruded on the court's exclusive authority to license lawyers.¹⁴ The plurality found the two statements visibly separate. One begins with the verb “Certified” and names the National Board; the other begins with “Licensed” and names states; and one is indented below Peel's name while the other sits at the margin of his name. No finding showed that anyone associated certification with governmental action, and the plurality saw no basis for believing the letterhead would be read that way.¹⁵ It was “satisfied that the consuming public understands that licenses . . . are issued by governmental authorities and that a host of certificates . . . are issued by private organizations.”¹⁶

The second concern was quality. The Illinois court called the claim of NBTA certification misleading because it “tacitly attests to the qualifications” of Peel as a civil trial advocate, and it treated the claim as an implied assertion of superior legal services that In re R.M.J. permits a state to restrict. It never asked whether NBTA certification was reliable, verifiable evidence of Peel's trial experience.¹⁷ The theory has roots in Bates, which suggested that claims that one lawyer's training, experience, or success rate is superior to other lawyers' are probably not susceptible to precise measurement or verification and might be regulated.¹⁸ The plurality answered that Illinois had confused statements of opinion or quality with statements of objective fact that may support an inference of quality. NBTA certification is a verifiable fact, and so are its predicates, such as trial experience and hours of continuing education, which belong with facts about the schools a lawyer attended or the bar activities a lawyer lists. A claim of certification “is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success”; it is a fact from which a consumer may or may not infer the likely quality of the lawyer's work.¹⁹ The plurality found no evidence that the claim suggests any greater professional qualification than a fair reading of the NBTA's rigorous requirements supports.²⁰

The plurality also rejected Illinois's narrow reading of the words themselves. The Webster's entry that the Illinois court quoted only in part defines a certificate as a document issued by a school, a state agency, or a professional organization. For ‘specialist’ the court turned from Webster's, which suggests no need for state approval, to the ABA's Comment to Model Rule 7.4. That Comment says the terms ‘specialist’ and ‘specialty’ have acquired a secondary meaning implying formal recognition and so mislead in states with no formal certification procedures.²¹

With those grounds answered, Illinois was left with a weaker defense, that a certification claim is at least potentially misleading. The plurality assumed that the letterhead might mislead some consumers and held that “that potential does not satisfy the State's heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information to the public.” A truthful certification claim poses no greater potential to mislead than the advertisements the Court had already protected: admission to practice before the U.S. Supreme Court in R.M.J., a targeted letter in Shapero v. Kentucky Bar Association, and an accurate illustration in Zauderer v. Office of Disciplinary Counsel. Like the restrictions struck down in those cases, Illinois's rule was “broader than reasonably necessary.”²²

The plurality added a presumption favoring disclosure over concealment and a second presumption that members of a respected profession are unlikely to deceive their clients and potential clients. It borrowed Bates's observation that 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.”²³

The Commission leaned on the Illinois Supreme Court's inherent authority to supervise its own bar, and Justice O'Connor's dissent urged more deference to a court she thought “in a far better position” than the Supreme Court to decide which statements mislead. The plurality refused. Whether a statement's inherent character places it beyond First Amendment protection is a question of law that the Supreme Court reviews de novo, meaning afresh and without deference to the state court, and a judgment by a state supreme court reviewing its bar commission is not insulated from that review. The Commission's authority is limited by the First Amendment and by the principle that disclosure of truthful, relevant information is more likely than concealment to improve decisionmaking.²⁴

The holding stops at bona fide certifiers, and the plurality said so. A lawyer's truthful statement that an “XYZ Board” had “certified” him as a “specialist in admiralty law” would not necessarily be protected if the certification were a sham, and a certificate issued by an organization that made no inquiry into the lawyer's fitness, or one issued indiscriminately for a price, could mislead even though literally true.²⁹ Peel's letterhead sat at the other end of that range. Both statements are literally true, so what separates the protected one from the one a state may restrict is the quality of the certifier's standards. The plurality accordingly held that the censure violated the First Amendment, reversed the judgment of the Illinois Supreme Court, and remanded the case.³⁰ A reader who sees the certifier's name can ask who stands behind the title, which is why the current rule requires the communication to name the organization.³¹

Screening and Disclaimers

Peel took away the ban but not the state's power to respond to confusion, and the plurality said what that power includes. To the extent that potentially misleading statements of private certification could confuse consumers, “a State might consider screening certifying organizations or requiring a disclaimer about the certifying organizations or the standards of a specialty.” A state “may not, however, completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA.”³³ Behind that line stands the plurality's view of the bar's role: if the public's naivete would make lawyer advertising misleading, “it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective.”³⁴

The standard the plurality applied sorts misleading speech by degree, and the degree controls the remedy. Misleading advertising may be prohibited entirely. But a state may not impose an absolute prohibition on information that is only potentially misleading, such as a listing of areas of practice, if the information can also be presented in a way that is not deceptive.³⁵ The plurality placed Peel's letterhead in the second group. The logic is a comparison of costs. A ban withholds accurate information from every reader to protect the few who might misread it, while a narrower measure adds information, so the reader who might be confused learns what is needed and everyone else still receives the truth.

Screening aims at the real source of risk, because a certification, like a trademark, is only as strong as the organization behind it.³⁶ The plurality warned that a truthful statement that an “XYZ Board” had certified a lawyer as a specialist in admiralty law would not necessarily be protected if the certification were a sham. States, it said, can require a lawyer who advertises such a certification to demonstrate that it is available to all lawyers who meet objective and consistently applied standards relevant to practice in the field. Nothing suggested that sorting bona fide certifying boards from bogus ones would impose a significant burden, or that bar associations and official disciplinary committees could not police deception effectively.³⁷

A state that answered the second board by banning both claims would repeat Illinois's error, because the ban would punish the rigorous certifier for a risk that only the sham creates.

The second tool adds information to the claim and leaves the claim standing. The plurality reached it by following the logic of its earlier lawyer-advertising cases, and Zauderer shows the pattern. The Court upheld discipline of a lawyer whose advertisement promised that clients owed no fee if there was no recovery but did not disclose that clients might still be liable for significant litigation costs, and Justice White explained that there are “material differences between disclosure requirements and outright prohibitions on speech.”³⁸ Following that logic, the plurality said a state could require a lawyer claiming NBTA certification to state that the NBTA is a private organization not affiliated with or sanctioned by the state or federal government. The state could also require information about the NBTA's certification requirements, so that consumers' inferences about quality would rest on more complete knowledge. Each state may decide for itself, within the First Amendment's limits, how best to keep such claims from misleading.³⁹

Disclosure has a ceiling, because the reasoning that condemns a ban also condemns a burden larger than the danger it answers. The plurality's footnotes say that a state may require a lawyer to provide more than the bare fact of certification, but may not require an exhaustive, detailed recounting of the certifier's requirements on the letterhead, because more limited disclosure would suffice to prevent confusion. The plurality left open exactly how much information falls between those two poles.⁴⁰ A rule requiring the lawyer to name the certifier and call it a private organization sits near the permissible pole. A rule that turns the letterhead into a summary of the certifier's requirements sits at the other.

Both tools reappear in the current rule. Rule 7.2(c)'s first condition screens: the certifying organization must be one approved by an appropriate authority of a state, the District of Columbia, or a U.S. territory, or accredited by the American Bar Association.⁴¹ Where Peel allowed a state to ask each lawyer to show that a certifier applies objective and consistently applied standards, the rule has an official body make that judgment in advance, so a bona fide credential passes without case-by-case proof and a sham board never qualifies. The second condition discloses: the name of the certifying organization must be clearly identified in the communication.⁴² That is the lightest form of added information. It lets a reader learn who stands behind the title, and it stays well short of the detailed recounting the plurality's footnote says a state may not demand. The Court's later decision in Ibanez v. Florida Department of Business and Professional Regulation likewise refused to let a state ban a lawyer's truthful use of a professional credential, there the CPA designation.⁴³ The sections on the current rule take each condition in turn.

Concurrence and Dissent

Justice Marshall concurred in the judgment and Justice O'Connor dissented, and their opinions show how far the plurality's reasoning was contested.

Marshall agreed that Peel's letterhead was neither actually nor inherently misleading, so he joined the conclusion that Illinois may not prohibit Peel from holding himself out as a civil trial specialist certified by the NBTA. He parted from the plurality on one classification: in his view the statement was potentially misleading.⁴⁶ The label controls the remedy. Because the statement was potentially misleading, Illinois could enact regulations other than a total ban to keep the public from being misled, and because Illinois's present regulation was unconstitutional as applied to Peel, he would reverse and remand.⁴⁷

He placed the statement outside the inherently misleading category for two reasons. The Court has upheld a ban where the method of communication itself invites overreaching, as with the in-person solicitation in Ohralik v. Ohio State Bar Association, and a statement on a letterhead carries no such pressure. The Court has also suggested that speech devoid of intrinsic meaning may be inherently misleading, especially if it has historically been used to deceive, but the NBTA statement imparts some information, and Illinois made no showing that similar claims had been used to deceive.⁴⁸

Marshall nonetheless saw real room for confusion. The word “National” in the NBTA's name could suggest a federal agency, since most lawyers know that the federal government does not regulate lawyers but most nonlawyers probably do not. The placement of the certification line above “Licensed: Illinois, Missouri, Arizona” could lead even lawyers to believe that the listed states sanction the NBTA.⁴⁹ He also read the plurality's dictionary entry differently. The entry lists a state agency among the possible issuers of a certificate, it defines “certify” to include “license,” and many states certify professionals such as public accountants, so the phrase “Certified Civil Trial Specialist By the National Board of Trial Advocacy,” without more, is potentially misleading beside a list of state licenses. The potential would shrink if the NBTA were commonly recognized and the public understood its requirements, but the record contained no evidence that either was true.⁵⁰

Justice O'Connor applied the same commercial-speech framework and reached the opposite result. She urged that the Court be “more deferential” to Illinois and thought its supreme court “in a far better position” than the Supreme Court to decide which statements mislead.⁵¹ She would let the states have “broad latitude to experiment” in this area.⁵²

Her central claim was that a true statement can still be inherently likely to deceive. The plurality, she said, conflated fact with verifiability, because merely being a fact does not make something readily verifiable. Given the confusion in the court below about the NBTA's standard, she saw little doubt that the meaning of NBTA certification is neither common knowledge nor readily verifiable by the ordinary consumer, and nothing on the letterhead tells a reader how to check the claim. The admission to the Supreme Court's bar at issue in R.M.J., by contrast, named a recognizable institution to which inquiries could be addressed.⁵³ She also rejected the plurality's line between licenses and certificates. No bright line exists, she wrote; California, for one, was already certifying legal specialists, so a claim of certification may lead ordinary consumers to conclude that the state has sanctioned it. The Illinois Supreme Court therefore did not err in finding consumers likely to be misled by the juxtaposition of state bar admission and a claim of civil trial specialty.⁵⁴

On remedy she doubted that anything short of a ban would work. Even if a state allowed certification claims with disclaimers, she wrote, it would need case-by-case review to be sure that a particular disclaimer cured a particular claim. Otherwise it would have to write its own disclaimer for each certifying organization, certify specialists itself, or at least screen every organization, and the Constitution does not require those extremes. She noted that a majority of the Court agreed the claim was at least potentially misleading, and that even a merely potentially misleading statement may be absolutely prohibited if the information cannot be presented in a nondeceptive way. She found it difficult to believe that a disclaimer could be written that would make the claim no longer potentially misleading.⁵⁵

The plurality answered one of her points in a footnote. She had tried to distinguish R.M.J. on the ground that a consumer can contact the Supreme Court to learn whether a lawyer belongs to its bar. That, the plurality said, misses the point. Admission to the Court's bar and NBTA certification are both facts whether or not consumers verify them, and the legal question is whether a statement of either fact is so misleading that it falls outside the First Amendment's protection. In R.M.J. the Court held that advertising admission to its bar could not be banned although the fact “could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court.”⁵⁶

The opinions agree more than their results suggest. Marshall and the dissent both regard the claim as at least potentially misleading, and the plurality assumed as much for argument's sake.⁵⁷ They divide over what a state may do about that risk. The plurality and Marshall would require something short of a ban, and the dissent would let the state ban the claim because no workable alternative exists. On an exam, the remedy on the table usually decides the answer. A short statement that the certifier is a private organization not sanctioned by the state or federal government draws support from the plurality, and Marshall would allow regulation short of a ban.⁵⁸ A categorical ban on every certification claim is the response only the dissent would sustain. Rule 7.2(c) follows the route the plurality and Marshall left open: it bans no certification claim and conditions each on a certifier that is approved or accredited and clearly named in the communication.⁵⁹