Bishop v. Comm. on Professional Ethics, 521 F. Supp. 1219 (Southern District of Iowa (S.D. IOWA) 1981)

MEMORANDUM OPINION, JUDGMENT, INJUNCTION AND ORDERS

VIETOR, District Judge.

Plaintiff is a lawyer licensed by and practicing law in the state of Iowa. On January 22, 1981, he filed this action under 42 U.S.C. § 1983, with jurisdiction predicated on 28 U.S.C. § 1343, challenging the constitutionality of The Disciplinary Rules of the Iowa Code of Professional Responsibility for Lawyers limiting the means and content

of lawyer advertising. Plaintiff seeks declaratory and injunctive relief against the defendants, the Committee on Professional Ethics and Conduct of the Iowa State Bar Association, and its chairman, James E. Cooney, in his official capacity. Trial was held on June 11, 1981.

FACTS

Until recent times, advertising by lawyers setting forth fees and other information was prohibited in Iowa, as it was elsewhere in the United States.1 Then, in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the United States Supreme Court held that the First Amendment to the Constitution of the United States, which is applicable to the states through the Fourteenth Amendment, precludes the state from prohibiting a lawyer from publishing in a newspaper his truthful advertisement concerning the availability and fees of routine legal services offered by him.

In the wake of the Bates decision, the Iowa Supreme Court amended the Iowa Code of Professional Responsibility for Lawyers to permit lawyers to advertise their services and fees within the regulatory limits of the Code as amended.2

The defendant Committee on Professional Ethics and Conduct of the Iowa State Bar Association intends, by appropriate actions, to enforce the Disciplinary Rules of the Iowa Code of Professional Responsibility for Lawyers governing advertising by lawyers.

Plaintiff graduated from Drake University Law School in December of 1979 and was admitted to practice in the Iowa courts in June of 1980. He is also admitted to practice in this court and in the United States District Court for the Northern District of Iowa. He is a member of the American Bar Association, the Iowa Bar Association and two county bar associations in Iowa. He maintains his principal office in Davenport and another office in Muscatine, both in the Southern District of Iowa. At present, another lawyer, who is black, is associated with him.

In plaintiff’s law practice, he primarily handles routine matters such as uncontested dissolutions of marriage, uncontested bankruptcies, adoptions, simple wills, real estate closings, title opinions, etc. His office is organized to provide these routine legal services, which constitute about 80 to 85% of his practice.

Plaintiff is not an Iowa native and testified that he has no contacts in Iowa and that he therefore needs to advertise in order to attract clients. Since beginning his practice, he has advertised in newspapers of general circulation and in the Muscatine yellow pages. He testified that about 80% of his clients come to his office directly as a result of advertising. His advertising has been within the limits allowed by the Disciplinary Rules of the Iowa Code of Professional Conduct for Lawyers, but he wishes to employ additional means of advertising and use additional advertising content that

are prohibited by the Disciplinary Rules. It is his contention that he has a First Amendment commercial speech right to do so, and that the restrictions of the Disciplinary Rules infringe on this right.

GOVERNING LAW

Plaintiff’s specific challenges to the Disciplinary Rules can best be examined after first considering the governing principles of law.

The first state regulation prohibiting price advertising by members of a profession to be held violative of the First Amendment was Virginia’s law prohibiting pharmacists from advertising prescription drug prices. Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The Court expressly reserved the question of whether advertising bans on other professions also offended the First Amendment, stating:

Id. at 773 n.25, 96 S.Ct. at 1831 n.25.

The reserved question in respect to lawyer advertising was answered the following year by the Court’s decision in Bates v. State Bar of Arizona, supra. However, the holding in Bates was limited. The Court concluded:

Bates v. State Bar of Arizona, supra, 433 U.S. at 384, 97 S.Ct. at 2709. Most of the questions presented in the instant case were not answered by Bates.

Bates is a “commercial speech” case. Commercial speech is “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U.S. 557, 561, 100 S.Ct. 2313, 2349, 65 L.Ed.2d 341 (1980). Justice Powell, writing the opinion of the Court in Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, supra, 447 U.S. at 561-64, 100 S.Ct. at 2349-50, articulates the rationale as well as the scope and limitations of the First Amendment’s protection of commercial speech:

tween speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456 [98 S.Ct. 1912, 1918, 56 L.Ed.2d 44] (1978); see Bates v. State Bar of Arizona, supra, [433 U.S.] at 381 [97 S.Ct. at 2707-08]; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L.Rev. 1,38-39 (1979). The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. 436 U.S., at 456, 457 [98 S.Ct. at 1918, 1919]. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.

Justice Powell summarized the analysis required in commercial speech cases as follows:

Id. at 566, 100 S.Ct. at 2351.

It is undisputed that the state may regulate the legal profession. In Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 44 (1978), the Supreme Court observed:

L.Ed.2d 572] (1975). While lawyers act in part as “self-employed businessmen,” they also act “as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes.” Cohen v. Hurley, 366 U.S. 117, 124 [81 S.Ct. 954, 958, 6 L.Ed.2d 156] (1961).

Id. at 460, 98 S.Ct. at 1920-21. See Bates v. State Bar of Arizona, supra, 433 U.S. at 360-61, 97 S.Ct. at 2697-98.

In connection with the state’s power to regulate the legal profession, it is appropriate to note the following observation of Justice Harlan:

Cohen v. Hurley, 366 U.S. 117, 124, 81 S.Ct. 954, 959, 6 L.Ed.2d 156 (1961).

PLAINTIFF’S CHALLENGES TO CONTENT LIMITATIONS

Plaintiff asserts no challenge to DR 2-101(A)’s prohibition against advertising containing “a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement.” He does, however, challenge DR 2-101(A)’s prohibitions against advertising by a lawyer:

The Disciplinary Rules governing lawyer advertising list specific fact information that may be contained in a lawyer’s advertisement. In challenging the prohibition against placing in an ad “any information not hereafter specifically permitted,” plaintiff does not identify any information that he believes should be permitted, except the lawyer’s race, expression of views, and certain expressly prohibited material. Therefore, except for the questions of the lawyer’s race and expression of views, a consideration of his challenges to expressly prohibited material will necessarily constitute a consideration of his challenge to the prohibition of “any information not * specifically permitted.”

In considering plaintiff’s challenges to content prohibitions of the Disciplinary Rules governing lawyer advertising, it should first be observed that most advertising content consists of two parts, the factual or informational content and the promotional or persuasive content. Factual content consists of specific definable, measurable, demonstrative matters and operates at the conscious level. Promotional content, such as modifiers (“best,” “quality,” “competent,” “reasonable,” “moderate,” “cheap,” etc.), logos, drawings, sounds, sights, colors, lighting effects, dramatizations, etc., often operates at the unconscious level. Promotional content of advertising is potentially deceptive or misleading.3 It should also be observed that all of the content expressly

permitted by the Disciplinary Rules is factual, and most of the specific prohibitions of the Disciplinary Rules relate to promotional content.

In respect to the prohibition against claims of quality of an advertising lawyer’s legal services, plaintiff concedes that the state has an interest in regulating such claims and that superlative claims, such as “exceptional quality legal services” or “the best legal services in town,” are likely to be misleading and can properly be prohibited. But plaintiff argues that he has a First Amendment right to assert in his advertisements at least restrained claims of quality, such as using words like “competent” and “trustworthy.” He contends that the state has verified his competence and trustworthiness by admitting him to the bar.4 Unfortunately, experience shows that not all lawyers who have been admitted to practice are in fact competent or trustworthy.

In Bates v. State Bar of Arizona, supra, 433 U.S. at 383-84, 97 S.Ct. at 2709-10, the Court noted:

The Court went on to observe: “[W]e recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly.” Id. at 384, 97 S.Ct. at 2709 (emphasis supplied).

The governmental interest in precluding any possible misleading content in lawyer advertising is clearly substantial, and any claim of quality, even a restrained one, has some potential to be misleading, especially because not every lawyer in fact offers quality legal services. A total prohibition on any claims of quality directly advances the governmental interest, and is not more extensive than is necessary to serve that interest. See Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, supra, 447 U.S. at 566, 100 S.Ct. at 2351.

The prohibition against any claim of quality does not violate plaintiff’s First Amendment right of commercial speech.

In respect to the prohibition against “appeals to the emotions, prejudices, or likes or dislikes of a person,” plaintiff argues that “the entire function of advertising is to appeal to the likes or dislikes of people, and to a certain extent, to their emotions and prejudices, as well.” That may well be the function of product advertising, but it certainly should never be the function of advertising of a lawyer’s services. Such appeals are inherently misleading and clearly may, and should, be prohibited by the state. The four-part analysis articulated in Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, supra, 447 U.S. at 566, 100 S.Ct. at 2351, inescapably leads to the conclusion that DR 2-101(A)’s prohibition on “appeals to the emotions, prejudices, or likes or dislikes of a person” is valid.5

In support of his argument that DR 2-101(A)’s prohibition against “characterizations of his rates or fees” offends the First Amendment, he notes that the advertisement involved in Bates v. State Bar of Arizona, supra, stated in bold type: “Legal services at very reasonable fees.” He also cites Dewey v. State Bd. of Dentistry, 491 F.Supp. 132, 137 (E.D.La.1978), affirmed on the basis of the district court opinion, 625 F.2d 499 (5th Cir. 1980), which held:

Bates is dispositive of this issue, at least so far as the use of truthful and restrained adjectives is concerned. The Arizona lawyers’ use of “very reasonable fees” language was specifically cited by the state bar as misleading; the Court expressly considered the issue, found that the specific rate in question ($175 plus a $20 filing fee for an uncontested divorce) was “very reasonable” and concluded “that the advertisement at issue” was protected by the First Amendment. Bates v. State Bar of Arizona, supra, 433 U.S. at 381-82, 97 S.Ct. at 2707-08.

DR 2 — 101(A), insofar as it prohibits plaintiff’s verifiable truthful use of restrained adjectives characterizing his fees, such as “reasonable,” “very reasonable,” and “moderate,” violates his First Amendment right of commercial speech. However, use of unrestrained, hucksterish adjectives, such as “cut-rate,” “lowest,” “give-away,” “below-cost” and “special,” is not protected by the First Amendment, because such adjectives have a high potential to mislead. The Court in Bates impliedly suggested that unrestrained advertising by lawyers would be misleading. Id. at 372, 97 S.Ct. at 2703.

In support of his argument that DR 2-101(A)’s prohibition on “the use of all signs and symbols such as, but not limited to, logos, trademarks, graphics, design work, and pictures,” plaintiff points out that the advertisement approved by the Supreme Court in Bates contained a logo, a scales of justice. Id. at 385, 97 S.Ct. at 2710. However, use of the logo does not appear to have been raised as an issue in the Bates case, and therefore I do not believe that Bates really adjudicated the question.

Signs and symbols, such as logos, do not set forth facts or otherwise inform.6 They are promotional in nature, and they can be misleading. Therefore, the prohibition against their use in lawyer advertising does not violate plaintiff’s First Amendment right of commercial speech. Central Hudson Gas & Elec. v. Public Service Comm’n, supra, 447 U.S. at 566, 100 S.Ct. at 2351.

Plaintiff wishes to communicate to the black portion of the public the fact that his associate is a black. Race is not an item of information that is expressly prohibited by the Disciplinary Rules, but DR 2-101(A) prohibits placing in an ad “any information not hereafter specifically permitted,” and the Disciplinary Rules do not specifically permit such information to be placed in an ad.

Race is a factual matter, not promotional, and therefore such information cannot be misleading. Defendants do not articulate any governmental interest in prohibiting inclusion of such information in a lawyer’s advertisements, and the court can perceive none. Indeed, such information can serve a useful purpose. Many persons, especially many in the segment of the public to which lawyer advertising is primarily directed, are apprehensive about going to a lawyer and prefer, as a means of somewhat allaying their apprehensions, to seek out a lawyer with whom they can identify. (This court has encountered black litigants in need of court appointed counsel who felt that they could effectively communicate with and trust only a black lawyer.)

The Disciplinary Rules, insofar as they prohibit plaintiff from mentioning his or his associate’s race in advertisements, violate plaintiff’s First Amendment right of commercial speech.7

Plaintiff wishes to express in his advertisements his views on topics such as the role and responsibility of the legal profession, the delivery of legal services to people with moderate or low incomes and, in the words of his brief, “a whole host or variety of other subjects directly related to the delivery of legal service.” Expression of views is not expressly prohibited by the Disciplinary Rules, but, as previously noted, DR 2-101(A) prohibits placing in an ad “any information not hereafter specifically permitted,” and the Disciplinary Rules do not specifically permit expression of views to be placed in an ad.

Of course, there is no question that plaintiff has a First Amendment right to express his views. He may express his views in a variety of ways including, perhaps, by means of a written insertion enclosed with the bills for services he sends to clients. See Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). However, the question before the court is, does he have a First Amendment right to express his views in the context of his commercial advertising?

Views of an advertiser expressed in the context of commercial advertising necessarily become a part of the advertising. Views are subjective opinions, not statements of verifiable fact. In the context of commercial advertising they are promotional content with substantial potential to mislead and to appeal to emotions, prejudices, or likes or dislikes of a person. Therefore, expression of views in the context of a lawyer’s commercial advertising is not commercial speech falling within the ambit of First Amendment protection. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, supra, 447 U.S. at 566, 100 S.Ct. at 2351.

DR 2-101(F) prohibits a lawyer from using in his advertising

Plaintiff challenges this limitation on use of the term “clinic,” and contends that a lawyer primarily or substantially engaged in the delivery of routine legal services should be allowed to use the term “clinic” or “any similar term.”

The advertisement in question in Bates v. State Bar of Arizona, supra, identified the advertiser as “Legal Clinic of Bates & O’Steen.” The State Bar of Arizona argued that the advertisement was misleading because “legal clinic” is an allegedly undefined term. The Court found this contention unpersuasive, stating: “We suspect that the public would readily understand the term ‘legal clinic’ — if, indeed, it focused on the term at all — to refer to an operation like that of appellants’ that is geared to

provide standardized and multiple services.” Bates v. State Bar of Arizona, supra, 433 U.S. at 381, 97 S.Ct. at 2708. However, Bates and O’Steen, in order to provide legal services at modest fees to persons of moderate income,

Id. at 354, 97 S.Ct. at 2694.

DR 2-101(F)’s limitation of use of the term “clinic” to a law office limiting its services to routine matters, like that of Bates and O’Steen, is valid. Use of the term “clinic” by any law office not so limited would be misleading to the public, which would expect a “clinic” to provide only the routine services and thereby keep costs below that of other law offices through volume processing of the services by use of paralegals, automatic typewriting equipment, standardized forms, etc. The state clearly has an interest in preventing the public from being told that any particular law office is a “clinic” unless that law office is in fact nothing more or less than a clinic. DR 2-101(F)’s “clinic” definition is valid.

Plaintiff states in his brief:

I do not agree that radio or television advertisements of fields of practice, etc. are prohibited, and defendants do not suggest that they are. DR 2 — 101(B) permits radio and television advertising of specific information, including: “(2) Fields of practice, limitation of practice or specialization, but only to the extent permitted by DR 2-105.” I understand the “extent permitted by DR 2-105” language to be a reference only to the content limits prescribed in DR 2-105. The absence of reference in DR 2-105 to radio and television does not nullify the express grant of DR 2-101(B) to advertise on radio and television all enumerated information, including fields of practice, etc. The lack of mention of radio and television in DR 2-105 appears to be the result of oversight.8 There is therefore no “fields of specialty” issue to resolve.

DR 2-101(B) and (C) provide that permitted information

Plaintiff argues that he has a First Amendment right in radio and television advertising to use conversations between two or more persons, such as an attorney-client conversation; to personally speak and appear; to use a dramatic voice; to use background sounds, such as sirens, office

typewriters, and opening and closing of file cabinets, and to generally use dramatics. In respect to television, he also contends he has a First Amendment right to use visual displays and dramatics. As an example, he would like to use a television ad showing a layman and lawyer conversing — the layman would tell the lawyer that he does his own electrical work and drafts his own will, and then, as the lights flicker, the lawyer would explain to the layman why he should have a lawyer draft his will. He also wants to communicate the race of his black associate by having him appear in television ads.

In Bates v. State Bar of Arizona, supra, 433 U.S. at 384, 97 S.Ct. at 2709, the Court stated:

The court need not exhaustively explore the unique nature of electronic media advertising and the court decisions that have touched on the subject, as does defendants’ lengthy brief. The following few observations are sufficient.

It is the holding of this court under the section entitled Race, supra, that plaintiff has a First Amendment right to disclose in his advertising words the race of his associate. Thus he need not put the physical image of his associate on the television screen in order to disclose his race.

Everything else plaintiff wishes to do on radio and television that is prohibited by the Disciplinary Rules is promotional, not informational, in nature. Promotional content of commercial speech is potentially deceptive or misleading, and therefore it is not protected by the First Amendment. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, supra, 447 U.S. at 566, 100 S.Ct. at 2351. The Disciplinary Rules’ limitations on radio and television advertising are valid.

PLAINTIFF’S CHALLENGES TO MEANS LIMITATIONS

DR 2-101(B) limits lawyer advertising to

and to

Plaintiff asserts a First Amendment right to advertise in publications other than newspapers or periodicals of general circulation, such as trade journals, in-house newspapers, newsletters and university or campus newspapers, and to advertise by using leaflets, flyers, billboards, telephone book covers, and direct mailings to people targeted as probably needing a specific legal service. He also challenges the geographic restrictions of DR 2-101(B).

The state, of course, may place “reasonable restrictions on the time, place and manner of advertising.” Bates v. State Bar of Arizona, supra, 433 U.S. at 384, 97 S.Ct. at 2709. The question therefore is, are the restrictions reasonable?

Defendants offer the court no reason for not permitting a lawyer to advertise in publications other than newspapers or periodicals of general circulation, other than suggesting that because advertisements in publications of more limited circulation may be targeted for a select group whose numbers generally are few, the potential for abuse is high. They do not elucidate their abuse potential theory, and the court is unable to do so.

The defendants have not shown that there is any governmental interest served by prohibiting lawyer advertisements in publications other than newspapers and periodicals of general circulation, and such prohibition offends plaintiff’s First Amendment right of commercial speech.

The Disciplinary Rules consistently require that permitted advertising be in a “dignified” manner or form. DR 2-101(B); DR 2-101(C); DR 2-101(H); DR 2-102(A).

The Supreme Court of Iowa no doubt considered lawyer advertising by flyérs, leaflets, billboards and phone book covers to be unsuitable for several reasons, including preservation of professionalism, of which dignity is certainly a part. These means of advertising may be suitable for trying to sell many products and some services, but they would be a most undignified means for a lawyer to use in advertising.

Although considerations of professionalism do not justify entirely banning commercial advertising by lawyers, see Bates v. State Bar of Arizona, supra, 433 U.S. at 368-72, 97 S.Ct. at 2701-03, such considerations may certainly play a valid role in regulating the manner of advertising. The state has an interest in “minimizing commercialization of the legal profession.” In re Primus, 436 U.S. 412, 436-37, 98 S.Ct. 1893, 1906-07, 56 L.Ed.2d 417 (1978). See also Ohralik v. Ohio State Bar Ass’n, supra, 436 U.S. at 460-61, 98 S.Ct. at 1920-21; Bates v. State Bar of Arizona, supra, 433 U.S. at 368, 97 S.Ct. at 2701.

The court is satisfied that the state’s interest in minimizing commercialization of the legal profession justifies the state in prohibiting lawyer advertising by means of flyers, leaflets, billboards and telephone book covers, especially in view of the fact that there are available “ample alternative channels for communication of the information.” Virginia Pharmacy Bd. v. Virginia Consumer Council, supra, 425 U.S. at 771, 96 S.Ct. at 1830.

The Disciplinary Rules do not authorize a lawyer to advertise by direct mailing, a prohibition struck down as violative of the First Amendment by the Supreme Court of Kentucky and the Court of Appeals of New York. Kentucky Bar Ass’n v. Stuart, 568 S.W.2d 933 (Ky.1978); Koffler v. Joint Bar Ass’n, 51 N.Y.2d 140, 432 N.Y.S.2d 872, 412 N.E.2d 927 (1980), cert. denied, 450 U.S. 1026, 101 S.Ct. 1733, 68 L.Ed.2d 221 (1981). See Matter of R.M.J., 609 S.W.2d 411, 416 (Mo.1981) (Seiler, J., dissenting.)

Both the Kentucky court and the New York court concluded that direct mailing to target groups of advertising material did not constitute solicitation prohibited by DR 2-103.10 Ohralik v. Ohio State Bar Ass’n, supra, which held that the First Amendment does not preclude the discipline of a lawyer for soliciting clients in person for pecuniary gain under circumstances posing dangers that the state has a right to prevent, was distinguished on the ground that Mr. Ohralik made blatant in-person solicitations of the prospective clients, one in traction in the hospital and the other just released from the hospital.

The New York court observed:

and its price the letters implicitly or explicitly suggest employment of the writer to perform those services, ignores the strong societal and individual interest in the free dissemination of truthful price information as a means of assuring informed and reliable decision making in our free enterprise system, about which both the Supreme Court (Bates v. State Bar of Ariz., 433 U.S. 350, 364, 97 S.Ct. 2691, 2699, 53 L.Ed.2d 810 supra) and we (People v. Mobil Oil Corp., 48 N.Y.2d 192, 200, 422 N.Y.S.2d 33, 397 N.E.2d 724, supra) have had occasion to comment, and can only be productive of confusion for the profession (see Freedman, Lawyers’ Ethics in an Adversary System, ch. 10). To do so, moreover, is to suggest that there is necessarily something improper about an attorney’s desire to earn a fee, and that there is something different about the legal profession that makes direct mail advertising improper though it would not be for other businesses or professions and though indirect forms of advertising are not improper even for the legal profession *.

Koffler v. Joint Bar Ass’n, supra, 412 N.E.2d at 931.

Defendants do not specifically identify the governmental interests sought to be protected by prohibition of direct mail advertising, but this court assumes that they are the same as those asserted in the Koffler case — “potentials for deception, for invasion of privacy, for overcommercialization of the profession and for conflict of interest.” Id. 412 N.E.2d at 933 (footnote omitted). These interests must be scrutinized under the last three parts of the four-part analysis articulated in Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, supra, 447 U.S. at 566, 100 S.Ct. at 2351. Are the asserted governmental interests substantial? Does prohibition of direct mail advertising directly advance the governmental interests asserted? Is prohibition of direct mail advertising more extensive than is necessary to serve those interests?

“Bates, Ohralik and Primus establish that these are legitimate and important State interests.” Koffler v. Joint Bar Ass’n, supra, 412 N.E.2d at 932.

Conflict of interest: There is no suggestion by defendants in this case, nor was there a suggestion by the defendant in Koffler, as to how a conflict of interest could arise by direct mail advertising. Id. 412 N.E.2d at 933. The court can think of none. Thus the prohibition on direct mail advertising does not prevent potential for conflict of interest.

Overcommercialization: Unrestrained content of direct mail advertising could constitute overcommercialization, and the governmental interest in preventing potential overcommercialization would be served by prohibiting direct mail advertising. However, prohibition is a far more extensive remedy than is necessary — the Disciplinary Rules’ restrictions on advertising content adequately preclude overcommercialization. Id.

Invasion of privacy: “Invasion of privacy and the possibility of overbearing persuasion, both of which were condemned in Ohralik and which could conceivably be present in telephone solicitation are not sufficiently possible in mail solicitation to justify banning it.” Id.* This court is sensitive to the fact that in the average home some anxiety might be generated by the arrival in the mail of an envelope from a lawyer’s office. Prohibition of direct mailing would prevent such feelings of anxiety as might be experienced before opening the envelope and discovering that its content is merely advertising. However, prohibition is far more extensive than necessary — a requirement that there be printed or stamped on the face of the envelope the

words “Advertising Content” would suffice.11

Deception : The words of the Court of Appeals of New York are again apropos:

Id. (Footnote omitted.)

The Supreme Court of Kentucky concluded its opinion by stating: “Ample protection may be assured the public by promulgation of a rule which requires the attorney to mail a copy of such advertisements to the Association simultaneously with the mailing of one or more of them to members of the public.” Kentucky Bar Ass’n v. Stuart, supra, 568 S.W.2d at 934. Defendants could do the same.12

The Disciplinary Rules, insofar as they prohibit plaintiff from using direct mailing as a means of advertising, violate plaintiff’s First Amendment right of commercial speech.

The court finds plaintiff’s First Amendment challenge to the geographic limitations to be without merit. Those limitations are clearly “reasonable restrictions on the place of advertising.” Bates v. State Bar of Arizona, supra, 433 U.S. at 384, 97 S.Ct. at 2709.

VAGUENESS CHALLENGE

Plaintiff challenges the Disciplinary Rules’ requirement that lawyer advertising be in a “dignified” manner or form as unconstitutionally vague. The court does not agree. The word, in the context used, clearly denotes restraint. A lawyer should have little difficulty distinguishing a dignified advertisement from one that is undignified.

JUDGMENT AND INJUNCTION

IT IS THE JUDGMENT of the court that The Disciplinary Rules of the Iowa Code of Professional Responsibility for Lawyers limiting the means and content of lawyer advertising violate plaintiff’s First Amendment right of commercial speech insofar as they prohibit:

(1) Characterization of his rates or fees by verifiable truthful use of restrained adjectives such as “reasonable,” “very reasonable,” and “moderate.”

(2) Identification by words of his race or his associate’s race.

(3) Advertising in publications other than newspapers and periodicals of general circulation.

(4) Direct mailing of permissible advertising material.

IT IS THE FURTHER JUDGMENT of the court that in all other respects The Disciplinary Rules of the Iowa Code of Professional Responsibility for Lawyers limiting the means and content of lawyer advertising do not violate plaintiff’s First Amendment right of commercial speech.

IT IS ORDERED that defendants are hereby enjoined from enforcing the portions of The Disciplinary Rules of the Iowa Code of Professional Responsibility for Lawyers limiting the means and content of lawyer advertising that have herein been adjudicated to be violative of plaintiff’s First Amendment right of commercial speech.

STAY

IT IS ORDERED that the injunction hereinabove ordered be stayed until time for appeal has expired and during the pend-ency of an appeal if one is taken.

ATTORNEYS FEES

The court retains jurisdiction to entertain an application for attorney fees under 42 U.S.C. § 1988.

APPENDIX

CODE OF PROFESSIONAL RESPONSIBILITY

DISCIPLINARY RULES

DR 2-101 Publicity.

(A) A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use, or participate in the use of, any form of public communication which contains a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement, which contains any statement or claim relating to the quality of his legal services, which appeals to the emotions, prejudices, or likes or dislikes of a person, or which contains any claim that is not verifiable; nor shall he use or participate in the use of any form of public communication, calculated to attract clients, which contains any information not hereafter specifically permitted. In all communications under DR 2-101 and DR 2-102 the lawyer shall avoid all subjective characterizations of his rates or fees, such as, but not limited to, “cut-rate,” “lowest,” “reasonable,” “moderate,” “very reasonable,” “giveaway,” “below-cost,” “special”; and shall further avoid the use of all signs and symbols such as, but not limited to, logos, trademarks, graphics, design work, and pictures. Referred to in DR 2-101(1), DR 2-102

(B) The following information, in words and numbers only, may be communicated to the public in newspapers or periodicals of general circulation in the geographic area in which the lawyer maintains offices or in which a significant part of the lawyer’s clientele resides or in the classified advertising section of the telephone directory distributed in the geographic area in which the lawyer maintains offices or in which a significant part of the lawyer’s clientele resides or in reputable legal directories generally available in such area. The same information, in words and numbers only, articulated only by a single nondramatic voice, not that of the lawyer, and with no other background sound, may be communicated by radio. The same information, in words and numbers only, articulated by a single nondramatic voice, not that of the lawyer, and with no other background sound, may be communicated on television. In the case of television, no visual display shall be allowed except that allowed in print as articulated by the announcer. All such communications on radio and television, 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. Any such information shall be presented in a dignified manner:

(5) Schools attended, with dates of graduation, degrees and other scholastic distinctions;

Nothing contained herein shall prohibit a lawyer from 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. Referred to in DR 2-101(H), DR 2-105

(C) The following fee information, in words and numbers only, may be communicated to the public in newspapers or periodicals of general circulation which are published at least once each month and which are distributed in the geographic area in which the lawyer maintains offices or in which a significant part of the lawyer’s clientele resides or in the classified section of the telephone directory distributed in the geographic area in which the lawyer maintains offices or in which a significant part of the lawyer’s clientele resides. The same information in words and numbers only, articulated only by a single nondramatic voice, not that of the lawyer, and with no other background sound may be communicated by radio. The same information, in words and numbers only, articulated by a single nondramatic voice, not that of the lawyer, and with no other background sound may be communicated on television. In the case of television, no visual display shall be allowed except that which is allowed in print as articulated by the announcer. All such communications on radio and television, 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. Any such information shall be presented in a dignified manner:

(D) For purposes of this rule, the term “specific legal services” shall be limited to the following services:

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

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, 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 the Code, 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:

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.

(E) 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 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 into the described services. In that event or if a range of fees is stated, he shall render the service for the estimated fee given the client in advance of rendering the service.

(F) A lawyer shall not, on behalf of himself, his partners, associates or any other lawyer affiliated with him or his firm, use the public communication of fee information concerning specific legal services as an indirect means of attracting clients for whom he performs other legal services not related to the specific legal services publicized; nor may the term “clinic” or any similar term be used in any communication to the public unless the practice of the lawyer or his firm is limited to routine matters 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. , Whether or not it contains fee information, a lawyer shall preserve in his office a copy of each advertisement placed in a newspaper, the classified section of the telephone directory, or periodical and a tape of the radio or television 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 station upon which it was aired.

(G) A lawyer recommended by, paid by or whose legal services are furnished by, a qualified legal assistance organization may authorize or 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.

(H) This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:

(I) 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). [Court Order February 28,1977; February 17, 1978; July 24, 1979; May 6, 1980]

Referred to in DR 2-103

Referred to in Professional Ethics and Conduct Committee rules 5.1, 5.6

Referred to in “Definitions” at the end hereof

DR 2-102 Professional Notices, Letterheads, Offices and Signs

(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:

law firm may also give the names of members and associates, and names and dates related to deceased and retired members. A lawyer may be designated “Of Counsel” on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate. A lawyer or law firm may be designated as “General Counsel” or by similar professional reference on stationery of a client if he or the firm devotes a substantial amount of professional time in the representation of that client. The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession.

Referred to in DR 2-105

(B) A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or professional association may contain “P.C.” or “P.A.” or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name, the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm name or in professional notices of the firm.

(C) A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners.

(D) A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible public communications and listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.

(E) A lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.

(F) The text of a lawyer’s letterhead, office sign, professional card or other authorized notice or listing shall not violate the provisions of DR 2-101(A). [Court Order February 17, 1978; May 6, 1980; August 12, 1980]

Referred to in DR 2-101

DR 2-103 Recommendation of Professional Employment.

(A) A lawyer shall not, except as authorized in DR 2-101, recommend employment, as a private practitioner, of himself, his partner, or associate or a nonlawyer who has not sought his advice regarding employment of a lawyer.

(B) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client, except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D).

(C) A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except as authorized in DR 2-101, and except that:

(D) A lawyer shall not knowingly assist a person or organization that furnishes or pays for legal services to others to promote the use of his services or those of his partner or associate or any other lawyer affiliated with him or his firm, except as permitted in DR 2-101. However, this does not prohibit a lawyer or his partner or associate or any other lawyer affiliated with him or his firm from being recommended, employed or paid by, or co-operating with, one of the following offices or organizations that promote the use of his services or those of his partner or associate or any other lawyer affiliated with him or his firm if there is no interference with the exercise of independent professional judgment on behalf of his client:

(e) Any member or beneficiary who is entitled to have legal services furnished or paid for by the organization may, if such member or beneficiary so desires, and at his own expense, select counsel other than that furnished, selected or approved by the organization for the particular matter involved.

Referred to in DR 2-103(B), DR 2-104

(E) A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his services does so as a result of conduct prohibited under this disciplinary rule. [Court Order February 28, 1977; February 17, 1978]

Referred to in DR 2-101

DR 2-104 Suggestion of Need of Legal Services.

(A) A lawyer who has given in-person unsolicited advice to a lay person that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:

DR 2-105 Description and Limitation of Practice.

(A) A lawyer may hold himself out publicly as practicing in or limiting his practice to certain fields of law as follows:

phone directory listings, all as otherwise allowed by DR 2 — 102(A), and in newspapers, periodicals 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 Matters”, “Trademark Attorney”, “Trademark Lawyer”, or any combination of those terms on his professional card, letterhead, office sign, professional notice or announcement and telephone directory listing, all as otherwise allowed by DR 2-102(A), and in newspapers, periodicals 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 Matters” or combination thereof.

(b) If the lawyer is practicing primarily in his listed fields of law practice but he also accepts other types of legal matters, such listing of fields of law practice shall be preceded by the words “Practicing primarily in . ..

Referred to in Definitions

(B) A lawyer may communicate the name of state and federal courts in which he or she is currently permitted to practice on his professional card, letterhead, office sign, professional notice or announcement, and telephone directory listings, all as otherwise allowed by DR 2 — 102(A), and in newspapers, periodicals and legal directories, as otherwise allowed by DR 2-101(B).

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 DR 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 therefor shall be made on forms prescribed by the commission. Extensions of time within which to fulfill the 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. [Court Order February 17, 1978; October 11, 1978; March 5, 1979; May 29, 1979; December 31, 1979]

Referred to in DR 2-101, DR 2-102, EC 2-16

Referred to in Professional Ethics and Conduct rules 5.1, 5.6

Referred to in “Definitions”