Opinion
February 18, 1981
David E. Brennan (Paul J. Ginnelly of counsel), for petitioner.
Sugarman, Wallace, Manheim Schoenwald (Donald Schoenwald of counsel), for respondent.
Respondent was admitted to practice as an attorney and counselor at law in the State of New York on September 12, 1977. The Grievance Committee for the Fifth Judicial District charged in its petition instituting this disciplinary proceeding that respondent advertised in the Yellow Pages of the New York Bell Telephone Directory for Syracuse, New York for the year 1980-1981 that he practiced in each of the 25 areas of law listed alphabetically in the advertisement which appeared under the caption "Lawyers Grouped by Practice" and that this conduct appears to violate DR 2-101(A) of the Code of Professional Responsibility and subdivision (a) of rule 1022.16 of the Appellate Division, Fourth Department ( 22 NYCRR 1022.16 [a]). According to the petition, respondent admitted that "he has had no experience at all in several of these categories of law".
By this answer respondent admitted the material allegations of the petition, but denied that he either intended to violate or, in fact, violated the Code of Professional Responsibility. Respondent's answer details the methods adopted by the telephone company in obtaining his listing in the "various categories where he was willing to accept clients who came to him with problems", and asserts that he is associated with a well-established law firm to whom he could turn for assistance and that at the time he purchased the advertisement he did not feel that his conduct was improper. He claims that the guidelines and rules set forth in DR 2-101(A) are "vague, ill-defined", and that he had no intention to mislead or deceive. The parties conceded that no order of reference was required.
We find that respondent violated DR 2-101 (A) of the Code of Professional Responsibility and the rules of this department ( 22 NYCRR 1022.16[a]).
DR 2-101 (A) of the Code of Professional Responsibility provides: "A lawyer on behalf of himself or herself or partners or associates, shall not use or disseminate or participate in the preparation or dissemination of any public communication containing statements or claims that are false, deceptive, misleading or cast reflection on the legal profession as a whole." Our department rule, effective March 1, 1978 entitled "Advertising by attorneys", is identical to DR 2-101 (A).
An examination of the advertisement, a copy of which is attached to the petition and annexed hereto as Appendix A, reveals that its publisher divided the practice of law into 25 separate categories under each of which respondent's name appears first: his name is listed alphabetically by his given name, Aaron, rather than by his surname, Zimmerman. Under the advertisement's caption appears the following legend: "Lawyers listing areas of practice in the Yellow Pages have not necessarily been certified by any state or federal authority as having any more competence in these areas than any other lawyers".
Commercial speech in the form of truthful advertising of legal services, designed to disclose information to permit a consumer to reach an informed decision and to identify the legal services he desires, serves individual and societal interests and while it may be regulated by the State it may not be proscribed (Bates v State Bar of Arizona, 433 U.S. 350; see, also, Matter of Primus, 436 U.S. 412; Matter of Koffler, 51 N.Y.2d 140). Further, a lawyer is permitted publicly to identify one or more areas of law in which he practices, but he may not hold himself out as a specialist in a particular field of law, since no lawyer certification procedure or rules have been established in New York State (Code of Professional Responsibility, DR 2-105).
The advertisement itself makes no overt claim as to the quality of legal services that may be provided. The ambiguous caveat or disclaimer of the advertisement together with the description of the various categories of law, however, may leave the public with the erroneous impression that some lawyers, including those listed in the advertisement, are certified as specialists or that certification is available. Read as a whole, it cannot be gainsaid that the advertisement is manifestly framed to convey the impression that the advertising lawyers have a special expertise in the area of law in which their name is listed. If the purpose of the advertisement is to permit a consumer to reach an informed and reliable decision and identify the legal provider for the legal services he desires, which is a legitimate aim, this expectation may not be attained by retaining respondent, who candidly admits to his lack of experience in many of the identified areas of law in which his name is listed. Respondent's claim that he is associated with a well-established law firm which can assist him is of no avail because it is his listing, not that of his law firm, which is under review. This claim merely emphasizes the deceptive and misleading nature of the entire advertisement since it is he, not his law firm, who is holding himself out to the public.
The disciplinary rule under review is directly concerned with the prevention of deception: a legitimate State interest which the regulation seeks to protect. The thrust of the regulation is honest public communication so that "the stream of commercial information [may] flow cleanly as well as freely" (Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 772). No detailed guideline or signpost other than an innate sense of right or wrong should be necessary to achieve this goal. A lawyer, particularly, should have an awareness of the moral quality of his own conduct and the ability to make the obvious judgment that the design of such an advertisement is to gain clients by guile and delusion. Measuring the conduct of the respondent against the plain and obvious meaning and intent of the regulation, we conclude that the potential for deception was created by the advertisment and respondent's listings were deceptive and misleading. The holding by the Court of Appeals in Matter of Koffler ( 51 N.Y.2d 140, supra) does not require a contrary conclusion. There it was held that direct-mail solicitation of potential clients is constitutionally protected commercial speech. We hold here that commercial speech must be honest and truthful, and prospective clients should not be beguiled or deceived by the content or the subject matter of the public utterance. Respondent's conduct subverted the true purpose of permitted advertising by lawyers and no prior sanction should be required to insure complete honesty and truthfulness by lawyers in all of their utterances, public or otherwise, to prospective clients. Because of respondent's youth, his disclaimer of any intent to mislead or deceive, and his naivete in relying on the assurances of the printers of the advertisement as to the propriety of the listings, he should not be disbarred or suspended but should be censured.
DILLON, P.J., CALLAHAN, DOERR, DENMAN and SCHNEPP, JJ., concur.
Motion to strike paragraph ninth of the petition granted. Order of censure entered.