The Supreme Court ruled yesterday that lawyers, much like other entrepreneurs, have a constitutional right to advertise skills, provided that their advertisements are not false or deceptive.
The decision, which struck down restrictions in Ohio and 15 other states, including Maryland, extends the court's decade-long trend toward easing, but not eliminating, state advertising restrictions on lawyers and other professionals.
Written by Justice Byron R. White, the decision does not apply to many state restrictions on television and radio advertising by lawyers and leaves intact an Ohio Supreme Court ruling that an attorney can be disciplined for an ad that does not disclose that prospective clients could be held liable for certain costs.
Yesterday's case, Zauderer v. Office of Disciplinary Counsel, involved Columbus attorney Philip Zauderer, disciplined by the state supreme court after placing a newspaper ad soliciting clients to sue the manufacturer of the Dalkon Shield intrauterine contraceptive.
In the ad, which featured an illustration of the device, Zauderer said the shield had generated numerous lawsuits by women allegedly injured, that he had represented such women and that women should not assume that it was too late to sue the manufacturer. He also said that if he did not win the case, he would not have to be paid.
The state court said Zauderer's ad violated rules against using illustrations, against giving unsolicited legal advice and against recommending oneself as a lawyer.
The Supreme Court struck down those provisions, saying the illustration was not false or deceptive and that pictures serve "important communicative functions" in attracting readers.
Ohio apparently banned ads with pictures because it wanted "dignified" advertising, White said. That goal was not "substantial enough to justify an abridgment" of lawyers' First Amendment rights, he said.
Ohio's concern that ads offering legal advice would encourage more litigation was also insufficient to justify a broad rule against such ads, the majority held.
Justice Sandra Day O'Connor, joined by Chief Justice Warren E. Burger and Justice William H. Rehnquist, dissented from part of the ruling, arguing that states may restrict "enticing" clients with legal advice.
Justices William J. Brennan and Thurgood Marshall also dissented from part of the ruling, saying that Ohio did not follow proper procedure in disciplining Zauderer for an unrelated ad.
Washington public-interest lawyer Alan Morrison, who represented Zauderer, said the opinion was a victory in most respects for Zauderer and that the "thrust of the opinion raises serious doubts" about whether other prohibitions, such as those of direct-mail solicitation and broadcast advertising, will be upheld in future cases.
The justices also agreed yesterday to hear a case next fall on whether police officers, acting with a warrant signed by a judge, can be forced to pay damages to people they arrest if it turns out there was no "probable cause" for the arrest. The case, Malley v. Briggs, involves a prominent Rhode Island couple arrested on drug charges after their names surfaced in a wiretap of a suspected drug dealer.
No indictment was returned against Louisa or James R. Briggs, and the two sued the state trooper who had filed the affidavit asking for an arrest warrant.
The 1st U.S. Circuit Court of Appeals ruled that a warrant does not automatically shield the police from lawsuits if it can be shown that officers should have known there was no "probable cause" for an arrest.