Commercial Speech. In 1983, Gary Peel, an Illinois attorney, began placing on his letterhead the following statement: "Certified Civil Trial Specialist/By the National Board of Trial Advocacy." In so doing, Peel violated Rule 2-105(a) of the Illinois

Question

Code of Professional Responsibility, which prohibits lawyers from holding themselves out as "certified" or "specialists" in fields other than admiralty, trademark, and patent law. The Attorney Registration and Disciplinary Commission (ARDC) censured Peel for the violation. The ARDC claimed that Peel's letterhead was misleading because it implied that Peel had special qualifications as an attorney, although in fact no such thing as a civil trial specialty existed in Illinois; because the word certified might be interpreted to mean "licensed," and the National Board of Trial Advocacy (NBTA) did not have the authority to license lawyers; and because, given the fact that not all attorneys licensed to practice in Illinois are certified by the NBTA, Peel's assertion might erroneously be construed by some readers to mean that those who are certified by that board are superior to those who are not. Peel argued that Rule 2-105(a) violated his constitutional right to free speech and appealed the ARDC's decision to the United State Supreme Court. What will the Court decide? Discuss.

Answer 1

Commercial speech
The Supreme Court of Illinois had held that Rule 2-105(a) did not violate Peel's constitutional right to free speech because the rule served a valid state interest—to protect the public from misleading advertising. The rule was also not overly broad in its restrictions. It did not prohibit attorneys or firms from designating areas in which their practices were concentrated or to which their practices were limited; it only prohibited claims that might deceive or confuse the general public. The Illinois court had concluded that in the case of Peel's letter, the public could be misled for all of the reasons cited by the Attorney Registration and Disciplinary Commission and affirmed Peel's censure. On appeal to the United States Supreme Court, this decision was reversed. The United States Supreme Court held that the attorney had First Amendment rights—under standards applicable to commercial speech—to advertise the NBTA certification. The Court pointed out that the attorney's statement was neither actually nor inherently misleading—the facts were true and verifiable and there was no finding of deception or misunderstanding. The Court reasoned that the public understands that that many certificates are issued by private organizations and it is unlikely that certification as a "specialist" by a na-tional organization would be confused with formal state recognition.