Oring v. State Bar of Cal.

PETITIONER:Oring
RESPONDENT:State Bar of Cal.
LOCATION:Highway 395, Inyo County, California

DOCKET NO.: 87-1224
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: Supreme Court of California

CITATION: 488 US 590 (1989)
ARGUED: Jan 10, 1989
DECIDED: Jan 23, 1989

ADVOCATES:
Diane C. Yu – on behalf of the Respondent
Theodore A. Cohen – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – January 10, 1989 in Oring v. State Bar of Cal.

William H. Rehnquist:

We’ll hear argument next in No. 87-1224, Mark Oring versus The State Bar of California.

Mr. Cohen, you may proceed whenever you’re ready.

Theodore A. Cohen:

Mr. Chief Justice and may it please the Court:

Mark Oring, a lawyer, was disciplined by the State Bar of California for presenting a testimonial radio communication which was never found to be false, misleading, or deceptive.

In fact, the State Bar of California stipulated that the advertisement was true.

The basis for the discipline was a presumption that testimonial advertisement is presumed to be false, misleading, or deceptive.

Under this Court’s prior decisions, such a presumption placing the burden on the speaker to prove the protected nature of the speech, thus effectively banning any testimonial advertisement, is unconstitutional.

The constitutional ground rules governing this area we believe to be crystal clear.

Again last term in Shapero versus Kentucky Bar, this Court reiterated the well-established standard that state rules designed to prevent the potential for deception and confusion may be no broader than reasonably necessary to prevent the perceived evil.

We feel that the State Bar itself has recognized that its legitimate goal of preventing deceptive advertising can in fact be met by a less stringent and restrictive rule.

To bring the case up to date, in November, or on November 28th of 1988, the California Supreme Court adopted the State Bar’s proposed rule, which we have set forth in our briefs and in our appendix.

So the California Supreme Court has now formally adopted the State Bar’s proposed rule which removes that presumption so long as the advertisement or testimonial advertisement contains a disclaimer which states that it is not a guarantee or prediction regarding the outcome of the potential client’s case.

In your view, is that a constitutional rule?

Does that comport with the First Amendment?

Theodore A. Cohen:

Well, I would say that I think that it at least meets the objections or, not objections rather, but at least meets the standards that I think this Court suggested in Bates and in R.M.J.–

Well so, in your view, for purposes of our argument we can assume that that is a constitutional requirement?

Theodore A. Cohen:

I don’t say at this point that I think even requiring a disclaimer would be constitutional because I don’t know that testimonial advertisements should be treated any differently than advertisements in general.

Apparently the Federal Trade Commission doesn’t feel that they have to be treated any differently, and they feel sufficiently secure that they can test each ad on its own merits.

You don’t think the disclaimer ads to the truth of the statement?

Theodore A. Cohen:

I don’t.

As a matter of fact, there has been a law review article, I believe in the Buffalo Law Review… I hope we’ve set it forth in our brief… by Professor Devine indicating that disclaimers may tend to be more confusing.

Why wouldn’t it add to the truth of the statement?

I mean, it’s surely true that if you had somebody saying, this was one pleased client, of course this doesn’t necessarily mean that you’ll be pleased or that all clients are always pleased, that ads to the truth of it, doesn’t it?

I should think your argument is that you have no right to require somebody to add to the truth.

Isn’t that your basic argument, that you can’t require somebody to put in something he doesn’t want to say?

Theodore A. Cohen:

Yes.

That the First Amendment prevents making somebody say something, as well as preventing somebody from saying something?

Theodore A. Cohen:

That is correct, Your Honor, Justice.

Mr. Cohen, I hope before you’re through you will tell us why you haven’t stipulated your case away.

Theodore A. Cohen:

Yes, if I may address that, Your Honor.

Theodore A. Cohen:

I think very clearly… and we’ve set these forth in both our opening and reply briefs… the agreement initially made with the State Bar was for an admonition.

That is what we stipulated to, an admonition.

What the State Bar imposed upon Mr. Oring was a public reproval.

Now, a public reproval is a more–

I thought your client stipulated to take whatever discipline his partner got.

Theodore A. Cohen:

–He agreed to take whatever discipline.

And I think that was really a word of art that we used during the State Bar hearings to indicate a lid on what should happen to Mr. Oring.

The intention of everyone… and I would like to quote if I may from the actual reporter’s transcript here, where I think Mr. Markle, who represented the State Bar, himself clearly understood that, in the event that the entire stipulation were not accepted, that it would be of no force or effect.

But I think that we placed a cap on the discipline so that Mr. Oring’s and Mr. Grey’s case could be litigated.

And since they had been partners and since it was just a single advertisement that had been run by both of them, we didn’t want one body or one group of referees to perhaps impose one form of discipline on Mr. Grey and then a different form of discipline on Mr. Oring.

So I think it was everyone’s intent that both should receive the same discipline.

However, the discipline that was stipulated to was an admonition, and our opening brief is wrong insofar as it sets forth that we stipulated to a public reproval, because we did not stipulate to a public reproval.

I suppose it might have been implicit you stipulate to the same discipline, provided it could be legally imposed.

Theodore A. Cohen:

Yes, we certainly did not stipulate that discipline which was not imposed according to constitutional standards should just be non-appealable and non-reviewable.

As a matter of fact, the State Bar in its letter of reprimand to Mr. Oring not only enclosed a copy of the rules governing appeals to the Supreme Court, but specifically stated that this may be appealed to the Supreme Court.

But you didn’t challenge the action below on the ground that it exceeded the stipulation, did you?

Theodore A. Cohen:

We challenged the action below… that is in the petition to the California Supreme Court?

Yes.

Theodore A. Cohen:

We challenged the action below on the grounds that the statute was unconstitutional.

But not that the stipulation was exceeded.

Theodore A. Cohen:

I don’t believe that that was raised in the brief.

I do not believe that that was raised in the brief.

Because the California Supreme Court–

You see, you put us in the position of stipulating that you’ll follow the other case, and then the other case is one in which these issues are not raised and it’s not before us.

Theodore A. Cohen:

–Your Honor, I think that what we stipulated to was that no greater discipline should be imposed upon Mr. Oring than upon Mr. Grey, because Mr. Oring, having left the case, was not in a position to participate in the Grey case, and we wanted to receive no greater discipline.

If I may, I’ll go to the record.

But essentially, you stipulated on the merits that you’d be bound by the first case.

Theodore A. Cohen:

No, we did not.

We stipulated on the merits that we would be bound by the discipline, degree of discipline that would be imposed.

But a stipulation as to degree of discipline or as to facts is not a stipulation that we do not have rights to review.

Well, as you understand the stipulations then, if the discipline had been the same you would still have been entitled to bring an argument on the merits here?

Theodore A. Cohen:

Yes, we would have been able to bring an argument on the merits, because under California law the stipulation as to facts, as to facts only–

Is there some place in the record, to which perhaps you were going, where we can actually see what was stipulated to?

Theodore A. Cohen:

–Yes.

As a matter of fact, Your Honor, in the reporter’s transcript, which is… it’s page 3, I believe.

The joint appendix?

Theodore A. Cohen:

Of the joint appendix.

At page 4, by Mr. Markle, if I may quote:

“In the event that the Hearing Panel makes a finding of culpability– “

Where are you reading from?

Theodore A. Cohen:

–I’m reading from on page 4 of the joint appendix.

It’s a statement by Mr. Markle, representing the State Bar.

Okay.

Thank you.

Theodore A. Cohen:

“In the event that the hearing Panel makes a finding of culpability, then it’s the position of the parties, in particular the State Bar, Mr. Cohen, and Mr. Oring, that the stipulation that we would lodge tonight would then become effective as the parties’ stipulated recommended disposition, which obviously the Hearing Panel can approve or disapprove. “

And then he goes on.

“In the event that this Hearing Panel finds that there is no culpability, then it’s the parties’ understanding that the stipulation would have no force and effect whatsoever. “

Now, the Hearing Panel found no culpability, and we submit that therefore that stipulation is of no force or effect.

The three-member Hearing Panel found that there was no culpability because the presumption was unconstitutional.

And therefore, by the State Bar’s own statement, we submit that that stipulation was no longer of any force or effect.

As a matter of fact, the preliminary hearing referee initially who first heard this matter dismissed the matter on constitutional grounds.

What you’re saying to me, Mr. Cohen… you know, usually a stipulation, in fact usually any contract, there’s something in it for both sides.

And what you’re saying, you’ve told us what was in it for your client.

That is, your client couldn’t get any sentence higher than the one given to the other attorney.

Theodore A. Cohen:

Yes, Your Honor.

What was quid for that quo?

Or they just gave you that?

Theodore A. Cohen:

Well, I can say, and perhaps I may be going outside the record, Mr. Oring just did not have the wherewithal at that point in time to litigate something that we felt would be litigated by Mr. Grey.

If that was the case, then he simply wouldn’t have litigated the second one.

But a stipulation usually means you have agreed to one thing in exchange for the other party agreeing to something else.

I read the stipulation to mean that you agreed to be bound by the factual determination, in exchange for which they promised, won’t give you any higher sentence.

Theodore A. Cohen:

By the factual determination, Your Honor, not by the legal determination.

Because under California rules as I understand them to be, a stipulation as to facts and discipline is always reviewable by the California Supreme Court.

We cannot stipulate away the right to review, because Mr. Oring did not know at the time of entering into this stipulation what the discipline would be.

You see, we might have stipulated to nothing higher than an admonition.

Well, maybe I misspoke.

What were the facts in dispute that you were stipulating to?

Theodore A. Cohen:

There were no facts in dispute whatsoever.

So in fact, the other side got nothing from this stipulation?

Just out of the goodness of their heart, they promised that your client wouldn’t get any higher?

That doesn’t make sense to me.

It seems to me you were–

Theodore A. Cohen:

Well, it was the same radio advertisement that was involved, and really there was nothing more to be added to the case–

–Exactly.

Theodore A. Cohen:

–By having two parties litigate it.

So the stipulation makes no sense to me unless you agreed to be bound by the outcome of the earlier case, not just factual.

Theodore A. Cohen:

If I may, Justice Scalla, the stipulation doesn’t say that at all.

It says that we agree to be bound by the factual determination and we agreed to an admonition.

Now, an admonition is not a matter of record.

It doesn’t blemish the lawyer’s record.

It doesn’t prevent him from perhaps receiving a judicial appointment later on.

Whereas, the State Bar ultimately did not impose this admonition.

It went further and it imposed a public reproval, which is a blemish on Mr. Oring’s record.

In any event, whatever the stipulation meant, it disappeared once the Hearing Panel found no culpability.

Theodore A. Cohen:

That’s my understanding, because that was even Mr. Markle’s statement to the Hearing Panel, that the stipulation was going to be of no force or effect if the Hearing Panel found no culpability.

And indeed, the Hearing Panel found no culpability.

Yes, but it wasn’t just a stipulation of facts.

It was a stipulation as to recommended discipline.

Theodore A. Cohen:

As to recommended discipline, which was not followed by the State Bar.

And we submit that therefore on that ground also–

There’s another thing that puzzled me about this.

I don’t have it in front of me, but I thought the Hearing Panel at some stage of the case, they’d advised your client that the case was over and that they would just stipulate to dismiss it, and your client insisted, or maybe it was his partner, that the matter be reviewed at a higher level.

Theodore A. Cohen:

–No, I don’t know that that was the case, Justice Stevens.

Initially it came before Referee Craig, who dismissed it on constitutional grounds.

The State Bar did nothing for about 20 months.

Right.

Theodore A. Cohen:

And then Mr. Grey went to the California Supreme Court, and the court ordered that the bar either proceed or dismiss.

But who initiated that request after 20 months?

Theodore A. Cohen:

Mr. Grey.

Mr. Grey is the partner of your client?

Theodore A. Cohen:

Yes, former partner of Mr. Oring.

So he was the one that was not satisfied with the victory.

He was a total victor at that point.

Theodore A. Cohen:

Well, no.

He was… you see, the sword was hanging over his head for 20 months.

He didn’t know whether he could go ahead with advertising or not go ahead with advertising, apparently.

In other words, the case–

He kind of wanted a declaratory judgment.

Theodore A. Cohen:

–It was still lying there and, yes, he wanted to know whether it was over or not; and apparently not being able to get any definitive word on that, asked the California Supreme Court, who then ordered the bar to either proceed or dismiss.

See, that preliminary hearing determination was not binding.

As a matter of fact, the State Bar contended, I believe in the Grey case–

Well, it was binding in the sense, as I understand you, that’s what terminated the stipulation, the fact that he prevailed at that hearing.

Theodore A. Cohen:

–Well, no.

What we feel terminated the stipulation was the three-member panel which found no culpability, because it was before that three-member panel that Mr. Markle on behalf of the State Bar stated that that stipulation would be of no force or effect if that panel found no culpability, and they did find no culpability.

We feel that equally offensive to the First Amendment principles that this Court has elaborated in cases which we feel are analogous to this one is the presumption under the regulation that communications are false, misleading, or deceptive.

The general rule from Speiser versus Randall and Friedman versus Maryland, under those cases the speaker may not be allocated the burden of proving the protected nature of the communication.

Mr. Cohen, do you agree that it is possible under the First Amendment for the State Bar to prohibit advertising that it believes is misleading?

Theodore A. Cohen:

That it believes is misleading.

I think, yes, I think of course the State Bar has an obligation, and I think that we lawyers expect the State Bar to prohibit advertising that is misleading.

Indeed, this Court–

Do you think that a testimonial which focuses, of course, as it did here, only on one client’s experience, without explaining the nature of the cause of action or the fact that it was just her individual experience under a bad faith claim… it wasn’t even explained that it was a bad faith claim, apparently… was somehow misleading–

Theodore A. Cohen:

–I don’t, Justice O’Connor.

–to the average listener?

Theodore A. Cohen:

If I may, number one, I don’t think that the general public would… I think it would be more misleading to use the word “bad faith” in an ad addressed to the general public.

We lawyers may know what that means, but I don’t think the public does.

I think that what this ad did, and I think why an ad in this type of a case differs from a general advertisement, is that the advertisement here did not seek retention of the law firm.

And unlike an ad for the sale of a product, it didn’t ask the listener or viewer to go to the store and buy the soap or makeup without further–

But the ad didn’t further explain.

The testimonial did not explain the nature of the claim for which relief was obtained or the circumstances, just a broad statement that, I got relief and I’m happy.

Theodore A. Cohen:

–No, if I may, Justice O’Connor, the ad said specifically:

“I was rear-ended on the San Diego Freeway and my medical bills were piling up. “

So it did, I believe, state the nature of the cause of action and what had happened to this individual.

Well, my impression is that it may have been quite misleading in not explaining the nature of the cause of action and the relief.

And I wonder whether the First Amendment doesn’t permit a state bar to just prohibit testimonials in general.

Theodore A. Cohen:

In general?

We feel that the Federal Trade Commission… and we’ve cited those matters in our brief… the Federal Trade Commission doesn’t feel that testimonials ought to be treated any differently than any other form of advertising.

We believe that the public is not–

Do you think that attorneys occupy any special role in the professions and in the hierarchy, and so that we ought to be a little more concerned–

Theodore A. Cohen:

–I think so.

–about their advertising?

Theodore A. Cohen:

Yes, and I think lawyers have always been regulated perhaps a little more strictly than the other businesses or trades.

Wasn’t there a finding here that this advertisement was misleading?

Theodore A. Cohen:

Never, sir.

There was never a finding anywhere in this case that the ad was misleading, false, or deceptive.

Was there some indication that it was not?

Theodore A. Cohen:

I believe that a stipulation that the ad was truthful would at least lend some inference to the belief that it was not false or misleading.

I think that once an advertisement has been shown to be truthful, what more could the lawyer establish?

But in any event, there was no finding that it was misleading or that anybody else thought it was?

Theodore A. Cohen:

At no time, and it did not arise out of a complaint by any consumer.

This was a State Bar-initiated complaint.

Theodore A. Cohen:

I feel also that what this–

Excuse me, excuse me.

There was no finding that anything special about this testimonial made it deceptive.

But isn’t there inherent in the State Bar decision that all testimonials are deceptive?

That was the basis of their decision, right?

Theodore A. Cohen:

–The basis for creating the presumption was the belief that all testimonials were inherently misleading.

So they effectively find that this is deceptive because it’s a testimonial.

Theodore A. Cohen:

They have found all testimonials.

That’s right.

So it’s no more deceptive than all testimonials.

But they have found this, being a testimonial, is deceptive.

Theodore A. Cohen:

That is correct.

And that’s sort of the issue, isn’t it, whether testimonials are deceptive?

Theodore A. Cohen:

I may say that that finding… there has been absolutely no basis shown for that finding.

It was in our opinion just a bald conclusion, not based upon any evidence at all.

But that finding, if that’s the basis for their rule, it’s also a finding that there can’t be any testimonial that is not misleading.

Theodore A. Cohen:

Yes, that is correct, Justice White.

As part of your answer, I believe, to Justice O’Connor, I thought you had indicated that there was no recommendation here that this firm be retained.

Is that what you were about to say?

Theodore A. Cohen:

Yes.

Well, if I may say it this way, what the ad said is that there is no fee for a consultation.

So I think that we have to take the conduct–

Well, but it concludes by saying:

“If I had any legal problem, car accident or anything, I would definitely go back to Greg & Oring. “

“I certainly do believe that. “

And they give the phone number twice.

You can’t really tell us that this wasn’t intended to be used to solicit the firm.

Otherwise, they were wasting their money.

Theodore A. Cohen:

–Well, of course it was meant to solicit the firm, surely, surely, Justice Kennedy.

I think–

Didn’t this rule really mean that anybody who is using a testimonial has the burden of showing that it is not misleading?

Theodore A. Cohen:

–That is correct.

And wasn’t the ultimate conclusion that your client failed to prove that it was not misleading?

Theodore A. Cohen:

That is correct, Justice.

And you say, I suppose, that shifting the burden like that violates the First Amendment.

Theodore A. Cohen:

Yes.

Is that your argument?

Theodore A. Cohen:

That is our position, Justice, that it ought to be the one who seeks to regulate the speech to have the burden of proof.

I think that when the client or potential client is advised that they may come in for a free consultation, I think that it is at that point that the lawyer has the obligation to answer any questions, to explain the law fully.

And it is at that point when time can be taken to go into the facts of the case and go into the law of the case.

I don’t believe that any type of an advertisement can completely tell all there is to tell.

And so because this ad did not solicit retention immediately… when I say it did not ask them to come into the office and then they would be charged for the consultation, it was a free consultation.

And I think at that point the client could ask any questions that they wanted to, and the lawyer I think was obligated as a lawyer to give truthful and full answers and supply full information.

I think if following that the lawyer did not act professionally, then he or she should be subject to discipline, but not by the mere fact of the ad itself.

Unless the Court has any further questions–

May I ask one other question that I may have missed earlier.

Under the rule they recently adopted, which requires a disclaimer in this kind of announcement, what exactly does the disclaimer have to say?

Theodore A. Cohen:

–The new rule, it says:

“A communication which contains testimonials about or endorsements of a member, unless such communication also contains an express disclaimer, such as, quote, this testimonial or endorsement does not constitute a guarantee, warantee or prediction regarding the outcome of your legal matter. “

If it doesn’t contain that, it is presumed, just as the old rule presumed, that the ad is false, misleading, and deceptive.

Thank you.

William H. Rehnquist:

Thank you, Mr. Cohen.

Ms. Yu.

Diane C. Yu:

Thank you, Mr. Chief Justice, and if it may please the Court:

Before I begin, I’d like to correct or clarify a few of the comments that have been raised in the context of this last discussion with my opponent.

First of all, the Federal Trade Commission, contrary to what he indicates, does in fact have a special standard for endorsements and testimonials.

Their regulations, Regulation No. 255.1 and 255.2, which are cited in our brief, do clearly indicate that they understand

“that an advertisement employing an endorsement reflecting the experience of an individual or a group of consumers on a central or key attribute of the product or service will be interpreted as representing that the endorser’s experience is representative of what consumers will generally achieve with the advertised product in actual, albeit variable, conditions of use. “

Therefore, unless–

What are you reading from?

Diane C. Yu:

–I’m reading from the Federal Trade Commission Regulation 255.2, which indicates they state that the advertiser, unless he or she can adequately substantiate these representations, should either clearly and conspicuously disclose what the generally expected performance would be or clearly and conspicuously disclose the limited applicability of the endorser’s experience to what consumers may generally expect to achieve.

So in fact the Federal Trade Commission does recognize that testimonials and endorsements carry with them special risks in terms of misleading or deceiving the public, and the answer is disclosure and disclaimer in order to solve that problem and eliminate the deception or misleading content.

That is what we have been saying all along.

A second point that was raised were the stipulations, and I can certainly understand some of the confusion.

We contend that the two stipulations should be read in context with the colloquy which is found in the joint appendix, pages 4 to 6.

There are two written stipulations–

Diane C. Yu:

That’s correct.

–somewhere in the record?

Diane C. Yu:

They’re in the jurisdictional statement, appendixes D and E.

If you read those two stipulations together, nowhere, contrary to what Appellant says, does it say, if the Hearing Panel finds no culpability, Mr. Oring is scot-free or he is off.

In fact, what it says, it understands that these stipulations are subject to approval by the review department, which is our appellate level in the State Bar court, and also the California Supreme Court.

Moreover, in the discussion before the Hearing Panel, which Mr. Cohen himself participated in and in fact was active in producing the stipulations that are before you, he states in page 5 of the joint appendix:

“In other words, our intent is that whatever happens to Mr. Grey would happen to Mr. Oring. “

And he later goes on to say that he understands there is a possibility that the discipline might be increased, because he says:

“For example, supposing, which this doesn’t apply, but supposing there were a situation where it was a stipulated suspension of 30 days. “

“What we’re saying is that would not go into effect with respect to Mr. Oring any sooner than it would go into effect for Mr. Grey. “

He later says:

“In other words, we will leave Mr. Grey and his able counsel to litigate. “

So in response to your question, Justice Scalla, what the State Bar go out of this, we thought, was that he… we were closing the case against Mr. Oring, and we were going to let Mr. Grey and the State Bar litigate.

In other words, Mr. Grey was going to be the designated litigator, Mr. Oring would take a back seat, and when discipline was officially and finally imposed against Mr. Grey, if any, it would be imposed against Mr. Oring.

That’s how I read it, too.

But how do you explain the colloquy on page 4, the statements of Mr. Markle on page 4 that Mr. Cohen brought to our attention?

Diane C. Yu:

It’s definitely true there are a number of confusing and somewhat irregular items in this particular record.

That’s an understatement, I’m sure.

With respect to what Mr. Markle is stating, he understood that the Hearing Panel was going to rule in effect on the constitutionality, and that is what the parties believed was going to happen in the Grey matter.

I think it’s clear that the intent, notwithstanding his comments about the culpability aspect, is not borne out at all by the stipulations themselves, but that the comments of Mr. Cohen, who drafted the stipulation as to force and effect of the first stipulation… it’s very clear that he understood that his client would, if disciplined at all, would not receive a greater discipline than Mr. Grey, and that he was backing out.

They were leaving the case to Mr. Grey to take over.

So that is… it is somewhat–

But where does that leave us in terms of the stipulation?

What do we have before us now?

Diane C. Yu:

–Well, under California law–

Is the Petitioner out of court?

Diane C. Yu:

–Under California law, our position is that the stipulations take him out of the as-applied category and that all he has is a facial attack.

It is somewhat unusual, and we understand that the California Supreme Court in denying him review in effect has upheld the decision in the State Bar and is holding him to the stipulations.

And we would certainly urge this Court not to free him from his obligations, because that would have impact far greater than this one discipline case, if parties can so readily back out of agreements they make and other parties have relied upon in good faith.

You don’t think it’s a permissible reading of the stipulation that he would simply accept the discipline imposed by the State Bar, cut retain leave to appeal perhaps to the Supreme Court of California or at least to this Court if he thought it were unconstitutional?

Diane C. Yu:

That was not our understanding.

The understanding was Mr. Grey was going to take the ball and run with it.

Mr. Grey did.

He lost.

The discipline was imposed against him.

And Mr. Oring, we understood and thought, was also going to accept that.

Mr. Grey I take it could have appealed to this Court had he so chosen.

Diane C. Yu:

That’s correct.

He did file and certiorari was denied as to his case.

Ms. Yu, let me take one more stab at it.

I don’t want to prolong this thing too long, but it is sort of a jurisdictional problem.

That statement of Mr. Markle on page 4,

“In the event that this Hearing Panel finds. “

–this is the problematic one…

“this Hearing Panel finds that there is no culpability, then it’s the parties’ understanding that the stipulation would have no force and effect whatever, and that whatever decision the Hearing Panel reaches, that decision would apply, if the decision included a finding of no culpability, that decision would apply to both Mr. Oring and Mr. Grey. “

Diane C. Yu:

Right.

That is irregular, because Mr. Markle I guess we should say should have understood… everybody understood, although it’s not expressed here, that the Hearing Panel is not the final word on the discipline of an attorney.

It goes automatically from the Hearing Panel to the review department.

Even if the Hearing Panel finds no culpability?

Diane C. Yu:

That’s correct.

The review department has authority to review the matter on its own, which in fact it did.

And in this case, the State Bar did apply to the review department for review.

And the decision of the Hearing Panel was overruled there and the decision later of the California Supreme Court in denying review upheld the review department’s determination that there was culpability and there ought to be discipline imposed.

Thank you, Ms. Yu.

I give up.

Did you say a while ago that there is some part of this case that is fairly before us or not?

Diane C. Yu:

We understand as before us would be the constitutionality of the presumption.

Well, why is that even before us?

Diane C. Yu:

Well, that is actually a question we have wondered about.

But we’ve briefed it.

We understand that there is some concern on the part of the Court with respect to lawyer advertising and where it’s going.

In fact, we welcome this opportunity to urge the Court to draw a line.

So you say at least the facial validity of this rule is before us, is that it?

Diane C. Yu:

That would be correct.

Well, but I really don’t understand that.

If this man has stipulated to the discipline and the ultimate outcome is giving the discipline regardless of what we decide on the constitutionality, it’s just like somebody walking in off the street and saying, I’d like to have you rule on the facial validity of this rule.

Diane C. Yu:

As I said, we feel he doesn’t have the right personally to benefit from whatever ruling might come from this Court.

It’s a classic case of no case or controversy.

Diane C. Yu:

Well, I hesitated to raise that, but we did have some concern about how this case and why this case is here.

But as I said, we are prepared to answer any questions that you have about it.

I did want to also–

Are you standing on the stipulation?

You’re not waiving the stipulation?

Diane C. Yu:

–No, we’re not waiving the stipulation, and we certainly are not conceding any of the factual points that he raised, including the fact that we think this testimonial is misleading and deceptive, as all testimonials are, although the State of California does have a provision that, if you can show the testimonial is not deceptive and misleading, that the attorney may run it.

We think that’s a fair balance between the competing interests at stake.

We think it’s a reasonable and constitutional way to get at the very serious problem of deceptive and misleading advertising in the lawyer context.

There was another point I believe Justice Scalla raised with respect to whether the State Bar could require an attorney to present more information than he or she might be inclined to do.

And I would understand that the ruling from the Zauderer case would suggest that in some instances even truthful statements may carry with them inherently deceptive or misleading impressions or connotations with them, such that the State may permissibly require them to disclose more than they might initially be inclined to state.

Do you take the position that all testimonial ads are inherently misleading?

Diane C. Yu:

Yes.

We also believe that the reasons for that are well-known and sound.

They have four components that make them inherently misleading and deceptive.

They constitute claims as to quality, which this Court in Bates has indicated is not protected… is not something that can be verified or measured in any real way.

They also constitute promises or inferences that certain results will obtain, and that’s what the FTC regulations are aiming at.

Diane C. Yu:

This particular ad also contains material omissions of fact, half-truths, in it, were such that you have a truthful statement which is nonetheless–

Yes, but what if it didn’t?

What if it just said, what if the testimonial merely said that they have a very fine-looking office and a polite receptionist who answers the telephone courteously and you will receive courteous treatment if you come into our office, and everybody who ever went to the office qualified that way?

What would be misleading about that?

Diane C. Yu:

–Those sorts of client satisfaction testimonials would be unlikely to produce the kind of investigation that this one did.

Yes, but it would be a violation of your rule.

Diane C. Yu:

But we have the presumption that says an attorney may show that those statements are in fact not just true, but also not deceptive or misleading.

In that case, if he could meet his burden fairly readily, he would be allowed to run that type of advertisement, because those are the kinds of things–

But isn’t the presumption irrational as applied to that kind of a testimonial?

Diane C. Yu:

–No, we feel that the form of advertising itself carries with it such inherent capabilities for abuse that–

Even the ad I described?

Diane C. Yu:

–Pardon me?

Even the ad I described?

Diane C. Yu:

Well–

It gives very limited information, but everything it says is easily verifiable, 100 percent true, and experienced by every client or potential client who ever went into that office.

Diane C. Yu:

–My response would be simply that the form of advertising itself is what is dangerous, because it has an emotional appeal and it is not relying on the content of the message, but the credibility of the speaker.

So I think we would say the presumption would fairly operate there.

But we also would concede in that particular case, where the client is testifying as to things he or she can observe and can in fact be verified, that we don’t have the same problem we do here, where the testimonial misrepresents entirely the basis of a cause of action for bad faith.

We find it quite amazing that–

Well, why does it misrepresent?

It said the insurance company was giving her a hard time, was harassing her, bills were piling up.

That’s the elements of bad faith.

Diane C. Yu:

–Not entirely.

We find it quite amazing that he does say he’s trying to educate the public, because never once in the ad are the words “bad faith”, “insurance bad faith claim”,

“breach of covenant of good faith– “

Well, the words “tort” and “contributory negligence” aren’t used, either, because those put people to sleep.

[Laughter]

Diane C. Yu:

–Well, in this particular instance mere harassment or not liking the way your insurance company treats you may not at all form the basis for a bad faith claim.

What is misleading here in addition to the failure to mention those items is the fact that the double recovery doesn’t come from the auto accident, even though that keeps being stressed, as, if I have a problem with an auto accident, if you have an auto accident you need a lawyer.

The clear intent of this particular testimonial is to imply that from a simple fender-bender you may get a double recovery if you don’t happen or your lawyer, this lawyer, doesn’t happen to like your insurance company.

Diane C. Yu:

And that simply is not true.

But in any event, if you want to publish any testimonial you have to get consent in advance.

Diane C. Yu:

Well, we don’t have a procedure for pre-screening, if that’s what you–

So you just have to take your risk?

Diane C. Yu:

–That’s correct in some respect, although we think in this case that is an important point to make, because here he seems to make a virtue of the fact–

So there’s no way, there’s no way for him to get permission in advance, or not?

Diane C. Yu:

–We don’t currently have the resources to do that.

With 120,000 lawyers, it’s somewhat difficult.

But we do have, as I was going to say, we do have here the representation that it is somehow a virtue that he didn’t–

Well, would you be making the same argument if, instead of this being a testimonial ad by some client, the lawyer himself says, I had this case where there was this, one of my clients had this kind of an experience?

He just said the same thing on his own behalf.

Would you still be making this kind of an argument, that it was misleading?

Diane C. Yu:

–Well, it certainly could be, because it could still be truthful and yet deceptive.

I could tell you in all candor, I have never lost a drunk driving case.

But if the facts were I had only tried one and fortunately won, it would be true, but it would be very misleading.

Would you think a State Bar rule that says that every ad like this, where it’s the lawyer himself saying what happened, is misleading, would that be constitutional, the lawyer advertising?

Diane C. Yu:

It’s not entirely before you.

I would imagine that it may have some of the same problems.

In fact, the American Bar Association condemns most of these self-laudatory ads, whether the lawyer said it or whether the client is saying it.

Well, it may be the American Bar did, but how about the constitutionality?

Diane C. Yu:

If it has the same elements of deceit and misleading information in it, it would still violate our rule.

So I would say that we would believe it would be constitutional to regulate that type of speech.

It is important that in this particular case the Appellant says almost as a virtue that he didn’t have anything to do with the writing of this ad, that it was his client’s statements.

Well, that belies his contention that he was trying to educate the public.

If he were trying to educate the public about the nature of bad faith claims, he wouldn’t have a lay person try to explain what had happened to her.

That simply doesn’t make sense.

In other words, he abdicated his role as a professional to try to ensure that the information that got out to the public was truthful and not deceptive.

We feel that this particular advertisement by itself is misleading under any context, and that it is inherently misleading because of these results that are being promised, the misrepresentations as to information about the basis of the cause of action, the quality claim that she’s not in a position to judge and cannot be measured.

You seem to be arguing it as an as-applied challenge.

I thought you said all that was before us was the facial challenge.

Diane C. Yu:

We are prepared to argue on all of these bases.

We do feel, though, that the stipulation takes him out.

But should the Court be entertaining a view that it may wish to look at the presumption and its validity, we felt that we had to prepare for any questions that you had.

But why in dealing with the presumption would we distinguish between an as-applied challenge and a facial challenge?

Diane C. Yu:

Well, it would be entirely with respect to the facts that he claims or the situation that applies to him in terms of any relief he may get.

I mean, if the statute, which we believe ought to be accorded proper deference, is in fact constitutional, then he obviously has no recourse or relief.

But do you see the stipulation as distinguishing between as-applied and facial–

Diane C. Yu:

Yes.

–Why?

Diane C. Yu:

Because he himself, he and the State Bar have already negotiated and settled whatever their agreements and understandings were about how his case was going to be handled.

We feel that he doesn’t now have the opportunity to bring it before you on the merits.

But why should he have any more opportunity to bring a facial challenge before us on the merits than an as-applied challenge?

Diane C. Yu:

Because of some of the unusual aspects of the case, which the record may reflect in terms of the challenge he brought in the California Supreme Court and then coming here on appeal, it does create a somewhat irregular context for the case.

But we were prepared, as I said, to deal with it.

As we said, we feel that this presumption is a reasonable accommodation between the competing interests that the Court has indicated, the need for the public to get appropriate, informative information… this advertisement does not give that type of informed information.

It has half-truths in it, it has omissions, and therefore it has a misleading impression for the public, who is not going to understand the difference between a bad faith claim and how that could produce a recovery, let alone a double recovery, and a simple car accident claim.

We also feel that the advertisement by itself standing alone, with or without the presumption, is misleading and ought to have been regulated.

And we feel that certainly the stipulation should take him out of this case altogether.

Finally, we would like to make an argument that the professionalism and public needs of the community do demand that a strong stand be made with respect to the types of forms of advertising, such as this testimonial, which have inherently misleading and deceptive qualities to them.

This is a time when the public is demanding more and not less truth and candor, more and not less ethical behavior on the part of lawyers.

With 120,000 lawyers in California and a very serious discipline problem, we take our job, we take it very seriously.

And we do hope that the ruling that comes from this Court will speak out in favor of allowing misleading and deceptive advertising in the form of testimonials to be regulated in a reasonable way.

But you just a minute ago told us we didn’t have anything.

Diane C. Yu:

Well, as I said, this is an unusual case, and the situation as to how it got here is quite exceptional.

May I ask one other question about the amended rule that now requires a disclaimer.

Is it your understanding that that was adopted in more or less a contingent fashion, depending on the outcome of this case?

Or is that part of the rule no matter what we do?

Do you know?

Diane C. Yu:

It has been adopted by the California Supreme Court.

It would be operative on May 27th of 1989.

Diane C. Yu:

Obviously, a ruling from this Court that had a direct bearing on it would cause us to revisit it.

But it will otherwise go into effect.

So that are there a whole backlog of discipline cases that are backed up awaiting the outcome of this case, or is this the only one that really is pending under the old rule?

Diane C. Yu:

We don’t have a real specific count on the number of testimonial cases.

See, what seems to me is we may be deciding the facial validity of a rule that doesn’t apply to anybody except for the litigant here, who has no interest in the outcome because he stipulated the case away.

Diane C. Yu:

Right.

That in fact has occurred to us.

It’s really a big case, in other words.

Diane C. Yu:

Right, a very weighty case.

Well, that has occurred to us.

In fact, this new rule doesn’t even help the Appellant, because he didn’t have a disclaimer of any kind.

I understand.

Diane C. Yu:

In short, I appreciate your attention and thank you.

William H. Rehnquist:

Thank you, Ms. Yu.

Mr. Cohen, you have six minutes remaining.

Theodore A. Cohen:

Thank you.

May it please the Court:

At the outset, I’d like to say that I don’t take credit for the creation of that stipulation at all.

I think it occurred before Ms. Yu was employed by the State Bar and I don’t take credit for the creation of that.

What Mr. Oring bargained for was an admonition, and he received something more horrendous.

Supposing he had bargained for an admonition and the review department determined to disbar him.

Well, but the stipulation said the Supreme Court of California can increase the discipline.

Theodore A. Cohen:

Exactly, and that is why exactly one cannot… we claim that one cannot stipulate away the right to review before we even know what is going to happen.

I don’t know why you can’t.

I don’t know why you can’t agree you’ll be bound by somebody else’s outcome.

It happens all the time.

Theodore A. Cohen:

I think that the intent of everyone, and it’s evidenced by Mr. Grey than was imposed on Mr. Oring.

That was at least the intention as I understood it to be.

If we rule the way you want, what benefit will that be to the law in California, the United States, or anyplace else?

Theodore A. Cohen:

Well, I think, Your Honor, what it would say is that the State Bar must use the least onerous means.

Theodore A. Cohen:

This Court has said that.

Now, I think that the claim that the State Bar makes that it doesn’t have the resources to permit pre-submission of this ad as the Kentucky Bar did is really not well-founded.

The State Bar of California to my understanding is spending $35 million for discipline this year.

Their dues I believe are the highest in the country.

I’m sorry, Your Honor.

That doesn’t speak too well of the bar.

Theodore A. Cohen:

It doesn’t, Your Honor.

And I don’t argue with the fact that they need to do those things.

I think all of us in the legal profession are concerned with the quality of–

Will this case stop that?

Theodore A. Cohen:

–Pardon me, Your Honor?

If we rule with you on this case, will that stop what they’re doing now?

Theodore A. Cohen:

Well, I hope it would.

I hope that the State Bar of California would–

Will this decision in this case benefit anybody but your client?

Theodore A. Cohen:

–I think it would, Your Honor.

How?

Theodore A. Cohen:

Well, of course I don’t know what the Court is going to hold or what dicta may be in the Court’s opinion.

But I think that any decision from this Court, of course, benefits all of us in the legal profession because we get guidance on how to proceed, and I think that the State Bar would receive guidance from this Court.

What in particular would it do?

Theodore A. Cohen:

In this case?

Yes.

Theodore A. Cohen:

As to anyone except Mr. Oring?

Yes.

Theodore A. Cohen:

I suppose that it would determine, and I hope it might determine, whether or not a disclaimer would be permissible, or whether there was some less onerous method of dealing with this situation.

That would deal with the procedure in California?

Theodore A. Cohen:

Yes, or whether a testimonial may be–

Which doesn’t interest us at all.

Theodore A. Cohen:

–I would say, Justice Marshall, that perhaps the decision would determine whether testimonials might be treated differently than any other.

But you feel that you have been aggrieved and you just want to have something done about it.

Theodore A. Cohen:

Well, that is the reason that Mr. Oring is here.

And I just don’t know what you want.

Theodore A. Cohen:

I think what happens is that we have a man who bargained for an admonition which does not affect his record publicly and he received something which now is a blemish upon his record.

I think that’s why he came here, of course.

But I think that the State Bar’s position really doesn’t meet with the requirements that this Court laid down in its previous lawyer advertising cases, to use the least heinous means available.

California could have provided for pre-submission of this ad.

I don’t feel that a lawyer ought to risk his license without knowing ahead of time whether what he is doing is permissible.

Is that involved in this case?

Theodore A. Cohen:

I believe it is, I believe it is, because, they had to run the ad.

He’s going to lose his license?

Theodore A. Cohen:

Well, it’s not lose his license, but he–

That’s what you said.

Theodore A. Cohen:

–Yes, but Your Honor, under the presumption as it existed a lawyer could risk losing his license, because we don’t know what discipline would be imposed.

So the lawyer must risk the discipline in order to find out whether the ad is permissible or not.

I still don’t know what you want.

Theodore A. Cohen:

Well, of course we would want a reversal of the case, Your Honor, and a determination–

Just say the case is reversed, period?

We have to write an opinion, do we?

Theodore A. Cohen:

–I suppose so, Your Honor, if you choose to.

Or could we dismiss it as improvidently granted?

Theodore A. Cohen:

Yes, I suppose this Court could do that.

You think we could do that?

Theodore A. Cohen:

I think this Court could do whatever it chooses to do, Your Honor.

[Laughter]

We would feel that the issue before the Court is not a question of whether the state can prohibit or punish false and misleading advertisements by lawyers.

Of course it can.

But we feel that the issue here is whether the state can relieve itself of the burden of showing that an ad is constitutionally protected, by enacting a presumption, as it did here, that all testimonials are presumed to be false and misleading and thereby making the person exercising the right of free speech to bear the burden of proving that the speech is in fact constitutionally protected.

It says that in First Amendment cases you can’t shift the burden to the defendant to prove a justification?

Theodore A. Cohen:

Well, I believe the Speiser versus Randall case indicates that, Your Honor, and the Friedman case.

Are those your closest cases?

Theodore A. Cohen:

Those are some of them, Your Honor.

William H. Rehnquist:

Thank you, Mr. Cohen.

The case is submitted.