In re R. M. J. , 609 S.W.2d 411 ( 1980 )

DONNELLY, Judge.

This is a disbarment proceeding wherein respondent questions the constitutionality of DR 2-101 of Rule 4 of this Court.

On June 25, 1974, this Court entered an Order appointing a Select Committee on Professional Ethics and Responsibility and charged it with the duty of reviewing Rule 4 of this Court and making such recommendations for revisions as deemed appropriate. The members of the Committee were: Robert L. Hawkins, Jr., Cole County, Chairman; James Ruddy, St. Louis County; David E. Blanton, Scott County; Meredith B. Turner, Greene County; Forrest M. Hemker, St. Louis City; R. Leroy Miller, Grundy County; Bertram W. Tremayne, Jr., St. Louis County; Martin J. Purcell, Jackson County; Donald L. Mason, Jackson County; and J. Andy Zenge, Jr., Lewis County.

One June 27, 1977, in Bates and O’Steen v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Supreme Court of the United States posited a confrontation between the traditional concern for attorney professionalism and the public need to know of the availability, nature and price of legal services and came down on the consumer side under the aegis of protecting attorneys’ rights to free flow of commercial speech.

On September 9,1977, the Hawkins Committee submitted a report to this Court which sought to implement the teachings of Bates and O’Steen, supra. On October 24, 1977, this Court promulgated DR 2-101, a copy of which is appended to this opinion. The effective date of DR 2-101 was January 1,1978. It can truthfully be stated that a constitutional study in depth was made before DR 2-101 was adopted. On October 24, 1977, there was every reason to believe that the good-faith efforts made by the Committee and this Court to follow Bates and O’Steen, supra, would pass constitutional muster.

However, on June 20, 1980, in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), a case in which commercial speech was at issue, the Supreme Court of the United States constructed a model:

“Writing for the majority, Justice Lewis F. Powell Jr. delineated a four-part analysis to determine the constitutionality of government clamps on commercial speech. To come within the ambit of the First Amendment, Justice Powell explained, commercial speech must concern lawful activity and not be misleading. Once this' demonstration is made, commercial speech may be restrained only if the government proves both that the restraints directly advance a substantial government interest and are not more extensive than necessary to serve that interest.”

Fein, Free Speech in Ads Wins Key Plug From Brethren, The National Law Journal, Nov. 17, 1980, at 15, col. 1.

We are urged now by respondent to follow the Central Hudson model. We respectfully decline to enter the thicket of attempting to anticipate and to satisfy the subjective ad hoc judgments of a majority of the justices of the United States Supreme Court. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (the compelling state interest test); and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (the imposition of the death penalty).

We recognize respondent’s right to press on in the courts authorized by Article III of the United States Constitution. If he exercises that right and obtains a favorable result there, we can then decide whether we will honor our duty to exercise “superintending control over all courts” in Missouri (Mo.Const. art. V, § 4) or will order DR 2-101 excised from Rule 4 of this Court.

We are aware, of course, that this is a “test” case and that respondent’s violation of Missouri’s Code of Professional Responsibility is minimal.

Respondent is ordered to pay the costs herein and is privately reprimanded. In re Sullivan, 494 S.W.2d 329, 334 (Mo. banc 1973).

RENDLEN, WELLIVER, MORGAN and HIGGINS, JJ., concur. BARDGETT, C. J., and SEILER, J., dissent in separate dissenting opinions filed.

APPENDIX

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 respecting the quality of legal services or containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.

(B) In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish, subject to DR 2-103, the following information in newspapers, periodicals and the yellow pages of telephone directories distributed in the geographic area or areas in which the lawyer resides or maintains offices or in which a substantial part of the lawyer’s clientele resides, provided that the information disclosed by the lawyer in such publication complies with DR 2-101(A), and is presented in a dignified manner:

(1) Name, including name of law firm and names of professional associates; addresses and telephone numbers;

(2) One or more particular areas or fields of law in which the lawyer or law firm practices if authorized by and using designations and definitions authorized for that purpose by The Advisory Committee;

(3) Date and place of birth;

(4) Schools attended, with dates of graduation and degrees;

(5) Foreign language ability;

(6) Office hours;

(7) Fee for an initial 30-minute consultation;

(8) Availability upon request of a schedule of fees;

(9) Credit arrangements for payment of fees will be given consideration;

(10)The fixed fee to be charged for the following specific routine legal services:

1. An uncontested dissolution of marriage;

2. An uncontested adoption;

3. An uncontested personal bankruptcy;

4. An uncomplicated change of name;

5. A simple warranty or quitclaim deed;

6. A simple deed of trust;

7. A simple promissory note;

8. An individual Missouri or federal income tax return;

9. A simple power of attorney;

10. A simple will;

11. Such other services as may be approved by The Advisory Committee; the description of which would not be misunderstood or be deceptive, provided that the statement discloses that the quoted fee will be available only to clients whose matters fall into the services described and that the client is entitled without obligation to a specific estimate of the fee likely to be charged in print size at least equivalent to the largest print used in setting forth the fee information.

(C) If a lawyer advertises a fee for a service, the lawyer must render that service for no more than the fee advertised.

(D) Unless otherwise specified in the advertisement if a lawyer publishes any fee information authorized under DR 2-101(B) in a publication that is published more frequently than one time per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication. If a lawyer publishes any fee information authorized under DR 2-101(B) in a publication that is published once a month or less frequently, he shall be bound by any representation made therein until the publication of the succeeding issue. If a lawyer publishes any fee information authorized under DR 2-101(B) in a publication which has no fixed date for publication of a succeeding issue, the lawyer shall be bound by any representation made therein for a reasonable period of time after publication but in no event less than one year.

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

(1) In political advertisements when his professional status is germane to the political campaign or to a political issue.

(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.

(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.

(4) In and on legal documents prepared by him.

(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.

(F) 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.