Oregon Advisory Opinions August 24, 1977: OAG 77-99 (August 24, 1977)

OAG 77-99.

The Oregon State Bar formulates rules of professional conduct, which have the force of law when adopted by the Oregon Supreme Court. ORS 9.490. Those rules now prohibit attorneys from advertising in all but very limited forms. DR 2-101, 2-102. Because of the recent Supreme Court decision in the Bates case, discussed below, the Oregon State Bar has suspended enforcement of those rules, and is in the process of formulating substitute regulations. We are asked whether the new rules can lawfully limit advertising to state publications. They cannot.

In Bates v. State Bar of Arizona ,___US___, 53 L Ed2d 810 (1977) the United States Supreme Court held that lawyers may not be prohibited from advertising basic truthful information about their prices and services. The lawyers involved had placed a newspaper advertisement for their legal clinic listing prices for routine legal services and claiming that the prices were "very reasonable." Their purpose was "to attract clients" and the court interpreted the advertisement as purely commercial. The Court summarized its holding as follows:

"The constitutional issue in this case is only whether the State may prevent the publication in a newspaper of appellants' truthful advertisement concerning the availability and terms of routine legal services. We rule simply that the flow of such information may not be restrained. . ." 45 USLW at 4904.

It has been suggested commercial speech should not be protected where an adequate alternate form of consumer information is available. This argument draws strength from the Court's reliance in commercial speech cases on the public's right to know and society's interest in the allocation of resources through informed consumer choice. In the Bates case and in Virginia Pharmacy Board v. Virginia Consumer Council , 425 US 748 (1976), invalidating price advertising prohibitions relating to prescription drugs, the Court noted the absence of

effective alternative sources of consumer information. In both cases the Court emphasized not the speaker's right to be heard, but the public's need to know what the speaker is communicating. If it is a public right at issue, then whether the information is available is far more important than where it is available. As a practical matter, however, it is difficult to envision a state publication as effective or efficient as the commercial print media in disseminating commercial messages.

We recognize that the degree of protection extended to commercial speech is substantially less than that afforded noncommercial communication. While a prohibition on advertising the superiority of a political candidate is plainly repugnant to the First Amendment, the Court stated in Bates :

". . . advertising claims as to the quality of [legal] services . . . are not susceptible to measurement or verification; accordingly such claims may be so likely to be misleading as to warrant restriction." 45 USLW at 4904.

But the state's power to regulate commercial speech does not extend to directly restraining its flow through commercial print media. A reading of the entire Bates opinion shows that the Court intended not merely to invalidate the specific state regulations involved, but to extend constitutional protection generally to commercial speech published in print media of the kind at issue in that case. The Court repeatedly stated that it was opting for or allowing the "free flow" of commercial speech, and that ". . . the bar will have a special role to play in assuring that advertising by attorneys flows both freely

and cleanly." These concepts conflict with rules permitting only the state to publish the protected communication.

The Court indicated that certain regulation of advertising would be permitted giving several examples: "false, deceptive, or misleading" advertising can be prohibited and the opinion does

". . . not foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the customer is not misled." 45 USLW at 4904.

As to newspaper advertising, the Court stated "the advertisement at issue is protected." In our opinion the state may not prohibit the publication of similar truthful advertisements in commercial print media.