Ted F. Walker v. The Board of Professional ( 2001 )

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
January 3, 2001 Session
TED F. WALKER v. THE BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
Appeal from the Chancery Court for Hamilton County
No. 98-0504 Jeffrey F. Stewart, Chancellor
No. E1999-002338-SC-R3-BP - Filed February 20, 2001
The Code of Professional Responsibility requires attorneys who advertise with regard to any area of
law but who are not certified in that area to include the following disclaimer in their advertisements:
“Not certified as a (area of practice) specialist by the Tennessee Commission on Continuing Legal
Education and Specialization.” DR 2-101(C)(3). The appellant was not certified as a civil trial
specialist (which when this case arose covered the area of divorce law) yet he specifically mentioned
divorce law in certain ads, and in another ad he did not adhere to the exact wording of the required
disclaimer. The Board of Professional Responsibility brought a disciplinary action against the
appellant and, finding him in violation of DR 2-101(C)(3), issued a private reprimand. The appellant
sought review of the Board’s action in Chancery Court, which upheld the sanction. He now seeks
further review in this Court, arguing for the reversal of the sanction on the ground that DR 2-
101(C)(3) violates the First Amendment to the United States Constitution. We hold that this
disclosure rule is constitutional and that the private reprimand may stand. We therefore affirm the
Chancery Court. We also affirm the Chancery Court’s holding that the appellant may be held
responsible for the costs of this disciplinary action.
Tenn. S. Ct. R. 9 Direct Appeal; Judgment of the
Chancery Court Affirmed; Case Remanded to the Board of
Professional Responsibility for Assessment of Costs
FRANK F. DROWOTA, III, J., delivered the opinion of the court, in which, E. Riley Anderson, C.J.,
Adolpho A. Birch, Jr., Janice M. Holder, and WILLIAM M. BARKER, JJ. joined.
Charles P. Dupree, Chattanooga, Tennessee, for the appellant, Ted F. Walker.
Jesse D. Joseph and Stacy Eugenia Gibson, Nashville, Tennessee, for the appellee, The Board of
Professional Responsibility of the Supreme Court of Tennessee.
OPINION
Ted F. Walker (Walker), the plaintiff/appellant, is an attorney who maintains a divorce law
practice in Nashville, Memphis, and Chattanooga. His practice focuses on uncontested divorces in
which both parties agree to a settlement. Walker is not certified as a specialist in civil trial practice
(which included divorce law)1 by the Tennessee Commission on Continuing Legal Education and
Specialization. Certification, while not required to practice a particular area of law, is intended to
enhance both the skills of attorneys licensed in Tennessee and “the ability of the citizens . . . to
identify attorneys with special competence in particular areas of practice.” S. Ct. R. 21 § 10.02(a);
see generally S. Ct. R. 21 § 10 (describing the certification process).
Over the years Walker has advertised his services by placing short ads in local newspapers.
The Board of Professional Responsibility of the Supreme Court of Tennessee (Board), the
defendant/appellee, became aware of these ads, believed they violated provisions of the Code of
Professional Responsibility, and filed two petitions for discipline against Walker. Walker claims
that the Board’s disciplinary action cannot be maintained because the provisions of the Code on
which it is based violate the First Amendment to the United States Constitution. Before analyzing
this claim we describe the factual and procedural history leading up to this appeal.
PROCEDURAL HISTORY
First Petition
In February 1995, Walker placed an advertisement for divorce services in the Chattanooga
News Free Press TV Magazine. The ad was published over the week of February 12 through 18,
1995 and states in its entirety: “DIVORCE, BOTH PARTIES SIGN, $125 + COST, NO EXTRA
CHARGES, Ted Walker, [address & telephone number].” On March 29, 1995, the Board’s
Disciplinary Counsel filed a complaint against Walker alleging that this advertisement listed divorce
as a specific area of practice but did not include the disclaimer required by DR 2-101(C) of the Code
of Professional Responsibility. This rule provides:
A lawyer who publishes or broadcasts a communication with regard to any area of
law in which the lawyer practices shall: . . . (3) [i]f the lawyer has not been certified
as a specialist by the Tennessee Commission on Continuing Legal Education and
Specialization in an advertised area in which certification is available, state with
respect to each such area, “Not certified as a (area of practice) specialist by the
Tennessee Commission on Continuing Legal Education and Specialization.”
DR 2-101(C)(3) (emphasis added). In his response to the complaint, Walker argued that his
advertisement fully complied with the United States Supreme Court’s decision in Bates v. State Bar
of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977) and that “the law, as set out by
the United States Supreme Court, is governing over a conflicting law by the Tennessee Supreme
1
At the time this case arose the civil trial practice designation covered the area of divorce law. As
of December 20, 1999, however, there is a separate family law designation which includes the specialty of
divorce law.
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Court.” After an exchange of correspondence with the Disciplinary Counsel, Walker apparently
agreed to change his advertisement to add the required disclaimer.
On March 29, 1996, the Board issued an Informal Admonition and stated that the file would
be closed; however, the Board’s letter stated that Walker could request a formal hearing on the
matter within twenty days after receipt of the admonition. On April 3, 1996, Walker sent a letter to
the Chief Disciplinary Counsel asking that the proposed discipline be vacated and that a formal
proceeding be initiated pursuant to Rule 9 (“Disciplinary Enforcement”) of the Supreme Court Rules.
As a result, the Disciplinary Counsel filed a petition for discipline on October 31, 1996 alleging that
Walker had violated DR 1-102, which prohibits the violation of any of the disciplinary rules, in this
case DR 2-101(C).
Second Petition
The Board filed a “Supplemental Petition for Discipline” on July 21, 1997. The
supplemental petition alleged that a complaint file had been opened pertaining to two advertisements
placed in The Chattanooga Times on February 9, 1997: one in the Chattanooga TV Guide and one
in the Business Directory Section of the classified ads. The TV guide ad stated: “DIVORCE, BOTH
PARTIES SIGN, $90.00 + COURT COSTS $89.50, No ‘Extra’ Charges, TED WALKER, [phone
number], Not certified as a specialist by the TN Commission on Certification and Specialization.”
The ad in the Business Directory Section was similar but did not contain the “not certified”
statement. The Board’s supplemental petition alleged that the ad in the Chattanooga TV Guide did
not use “the precise language required by the Tennessee Supreme Court in quotation marks within
Tenn. R. S. Ct. 8, DR 2-101(C) (2) (3), with no variations or abbreviations, an interpretation adopted
by the Board in Tennessee Formal Ethics Opinion 95-F-137.” The supplemental petition also
alleged that the advertisement in the Business Directory Section “include[d] no mandatory disclosure
of specialty certification whatsoever, as is required under DR 2-101(C)(3).” The petition further
alleged that Walker did not comply with DR 2-101(F) (pertaining to filing copies of advertisements
within three days of their publication) as to either of the ads.
Proceedings Before the Hearing Committee
The petitions were set for a hearing before a Hearing Committee of the Board. On February
2, 1998, the parties conducted a conference call to discuss a possible settlement. Based on an
agreement reached during that conference call, the Hearing Committee entered an “agreed judgment”
on March 24, 1998 in which Walker entered a “no contest plea” to both the Petition for Discipline
and the Supplemental Petition for Discipline. The agreed judgment provided that Walker
is privately reprimanded for his newspaper advertising as set forth in both Petitions
for Discipline, inasmuch as respondent has violated DR 2-101(C)(3) & (F), which
also results in a violation of DR 1-102(A)(1) of the Code of Professional
Responsibility. Respondent failed to properly state in such ads his lack of
certification as a civil trial specialist by the Tennessee Commission on Continuing
Legal Education and Specialization, and he failed to deliver to the Board a copy of
such advertising within 3 days after its initial publication.
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The agreed judgment also provided that Walker would have the right to appeal the judgment
“to attack the constitutionality of DR 2-101(C) et seq.” The judgment entered by the Hearing
Committee provided that if Walker did not appeal the judgment “in a timely fashion, he shall pay
to the Board the costs of this proceeding amounting to $2,096.90, pursuant to Tenn. R. Sup. Ct. 9,
§ 24.3.” This rule states:
In the event that a judgment of disbarment, suspension, public censure, private
reprimand, temporary suspension, disability inactive status, reinstatement, or denial
of reinstatement results from formal proceedings, the Board shall assess against the
respondent attorney the costs of the proceedings . . . the expenses of the hearing
committee in the hearing of the cause, and the hourly charge of disciplinary counsel
in investigating and prosecuting the matter. S. Ct. R. 9 § 24.3.
After entry of the agreed judgment, Walker filed a motion to set aside or obtain relief from
the judgment. In his motion, Walker stated that he and the Assistant Disciplinary Counsel had
negotiated a settlement of the case prior to the hearing but had not discussed any costs for which he
would be responsible. Because he had not agreed to pay costs, Walker asserted that the judgment
did not accurately reflect the parties’ agreement. The Hearing Committee denied Walker’s motion.
Walker filed a petition for certiorari review in the Chancery Court of Hamilton County. After
a hearing on July 7, 1999 the Chancellor denied the petition, thereby affirming the Hearing
Committee’s judgment. Walker then filed his notice of appeal with the Court of Appeals. Pursuant
to Rule 17 of the Tennessee Rules of Appellate Procedure and Rule 9 section 1.3 of the Supreme
Court Rules, the Court of Appeals properly transferred Walker’s appeal to this Court. We now
consider both the constitutionality of the disclaimer rule Walker was sanctioned for having violated
and whether he can be held responsible for the costs of this disciplinary action.
ANALYSIS
Standard of Review
This case requires us to evaluate the constitutionality of a provision of the Code of
Professional Responsibility. As this is a question of law, our standard of review is de novo, without
a presumption of correctness of the Chancery Court’s judgment. See Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
Attorney Advertising and the First Amendment
Since Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,
96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976) the United States Supreme Court has accorded First
Amendment protection to commercial speech, and since Bates v. State Bar of Arizona, 433 U.S. 350,
97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977) the Court has extended this protection to attorney
advertising. The Court has given substance to the Bates holding through a series of attorney
advertising commercial speech cases over the past quarter century. See generally Mason v. Florida
Bar, 208 F.3d 952 (11th Cir. 2000) (a recent court of appeals case discussing this body of Supreme
Court case law); Ficker v. Curran, 119 F.3d 1150 (4th Cir. 1997) (same). In the most recent attorney
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advertising case the Court stated, “It is now well established that lawyer advertising is commercial
speech, and as such, is accorded a measure of First Amendment protection.” Florida Bar v. Went
For It, Inc., 515 U.S. 618, 623, 115 S. Ct. 2371, 2375, 132 L. Ed. 2d 541 (1995). In the case before
us we must determine how much protection, and how to apply that level of protection when
evaluating the constitutionality of DR 2-101(C)(3).
We have never before addressed lawyer advertising, but we have squarely addressed a similar
regulation of another profession. In Douglas v. State, 921 S.W.2d 180 (1996) we upheld the
constitutionality of an administrative rule requiring dentists who are not certified specialists but who
advertise that they offer specialty services like orthodontics to disclose that their services “are being
provided by a general dentist.” Douglas is, of course, similar to the case before us, all the more so
because the case law does not make distinctions among the professions. For example, in Ibanez v.
Florida Dep’t of Bus. & Prof’l Regulation, 512 U.S. 136, 114 S. Ct. 2084, 129 L. Ed. 2d 118 (1994)
the United States Supreme Court relied heavily on attorney advertising cases although the regulation
before it involved advertising by Certified Public Accountants (CPAs) and Certified Financial
Planners. See also Edenfield v. Fane, 507 U.S. 761, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993)
(involving the regulation of CPAs). Our opinion in Douglas also relied heavily on attorney
advertising cases. Since the commercial speech standards recently discussed in Douglas apply here,
and since the United States Supreme Court has not decided a “regulation of professions”
commercial speech case after Douglas, we find that case to be highly relevant authority.
The validity of commercial speech regulations is subject to what has been termed
intermediate – as opposed to strict – scrutiny, according to a test announced in Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). See
Douglas, 921 S.W.2d at 184 (discussing Central Hudson). The test is as follows:
For commercial speech to come within that provision [the First Amendment], it at
least must concern lawful activity and not be misleading. Next, we must ask whether
the asserted government interest is substantial. If both inquiries yield positive
answers, we must determine whether the regulation directly advances the government
interest asserted, and whether it is not more extensive than is necessary to serve that
interest.
Central Hudson, 447 U.S. at 566, 100 S. Ct. at 2351. This test is used to analyze the validity of
regulations that prohibit or limit commercial speech. See, e.g., Greater New Orleans Broad. Ass’n,
Inc. v. United States, 527 U.S. 173, 119 S. Ct. 1923, 144 L. Ed. 2d 161 (1999) (striking down a
federal regulation prohibiting broadcast advertisements of private casino gambling where such
gambling was legal); Florida Bar, 515 U.S. 618, 115 S. Ct. 2371 (upholding a Florida regulation
prohibiting targeted direct-mail solicitation of accident victims and their relatives for thirty days
following an accident); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S. Ct. 1495, 134 L.
Ed. 2d 711 (1996) (striking down a Rhode Island prohibition on advertisements that provided
accurate information about the retail prices of alcoholic beverages); Ibanez, 512 U.S. 136, 114 S. Ct.
2084 (reversing the Florida Board of Accountancy’s reprimand of an attorney who truthfully
advertised that she was a CPA and a Certified Financial Planner); Peel v. Attorney Registration and
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Disciplinary Comm’n, 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (1990) (reversing the Illinois
Supreme Court’s censure of an attorney whose professional letterhead truthfully advertised that he
was certified as a civil trial specialist by a national organization).
The regulation before us requires that whenever a lawyer advertises his services in a
particular area of law for which certification is available in Tennessee, he must disclose in the ad
whether he is certified. DR 2-101(C). Since Walker was not certified as a civil trial specialist
(which then covered the area of divorce law) yet he specifically mentioned divorce law in his ads,
the disciplinary rule mandates that his ads include the following language: “Not certified as a civil
trial specialist by the Tennessee Commission on Continuing Legal Education and Specialization.”
DR 2-101(C)(3). This regulation does not prohibit or limit speech; instead it requires more speech
by way of an explanatory disclaimer.
The fact that the regulation requires disclosure rather than prohibition tends to make it less
objectionable under the First Amendment. Recognizing that the “bar retains the power to correct
omissions that have the effect of presenting an inaccurate picture,” the Court in Bates specifically
noted that “the preferred remedy is more disclosure, rather than less.” Bates, 433 U.S. at 375, 97 S.
Ct. at 2704-05. See also Peel, 496 U.S. at 110, 110 S. Ct. at 2292 (“To the extent that potentially
misleading statements of private certification or specialization could confuse consumers, a State
might consider screening certifying organizations or requiring a disclaimer about the certifying
organization or the standards of a specialty.”) (emphasis added). In Douglas we addressed the
distinction between prohibition and disclosure. We discussed Zauderer v. Office of the Disciplinary
Counsel, 471 U.S. 626, 105 S. Ct. 2265, 85 L. Ed 2d 652 (1985), in which the United States
Supreme Court struck down an Ohio regulation prohibiting the use of illustrations in attorney ads,
but upheld that state’s regulation requiring an attorney who advertises her availability on a
contingent-fee basis to disclose that clients are responsible for court costs. See Douglas, 921 S.W.2d
at 185-86. We noted that the First Amendment analysis in Zauderer was more forgiving of
disclosure-type regulations and we quoted from that decision at length, parts of which we again
recite:
Appellant, however, overlooks material differences between disclosure
requirements and outright prohibitions on speech. . . . Ohio has not attempted to
prevent attorneys from conveying information to the public; it has only required them
to provide somewhat more information than they might otherwise be inclined to
present. . . . Because the extension of First Amendment protection to commercial
speech is justified principally by the value to consumers of the information such
speech provides, appellant’s constitutionally protected interest in not providing any
particular factual information in his advertising is minimal.
* * *
We do not suggest that disclosure requirements do not implicate the advertiser’s First
Amendment rights at all. We recognize that unjustified or unduly burdensome
disclosure requirements might offend the First Amendment by chilling protected
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commercial speech. But we hold that an advertiser’s rights are adequately protected
as long as disclosure requirements are reasonably related to the State’s interest in
preventing deception of consumers. Douglas, 921 S.W.2d at 186 (quoting Zauderer,
471 U.S. at 650-51, 105 S. Ct. at 2281-82 (internal citations omitted) (emphasis in
last sentence added)).
In Douglas a principal question was whether the United States Supreme Court repudiated this
disclosure analysis in Ibanez. The petitioner in Douglas pointed to language in Ibanez to support that
contention, but we held that Ibanez should be interpreted to harmonize rather than conflict with
Zauderer. We therefore held that the disclosure requirement in Ibanez was “unduly burdensome”
under the Zauderer standard – as opposed to some newly announced constitutional standard. More
important, we discerned that Ibanez’s central holding was that the state had failed to offer sufficient
proof justifying its regulation. See Douglas, 921 S.W.2d at 188 (“[I]t appears that the Court may
have simply concluded that Ibanez was ‘not a disclaimer case,’ and therefore focussed [sic] its
attention on the lack of proof in the record.”). Thus, under current law – as announced in Zauderer
– as long as the disclosure requirement is reasonably related to the state’s interest in preventing
deception of consumers, and not unduly burdensome, it should be upheld. Recent cases have also
applied the less rigorous Zauderer standard when confronted with government regulations requiring
disclosure of information. See, e.g., Commodity Trend Serv., Inc. v. Commodity Futures Trading
Comm’n, 233 F.3d 981, 994 (7th Cir. 2000) (“The government can impose affirmative disclosures
in commercial advertising if these are reasonably related to preventing the public from being
deceived or misled.”); Commodity Futures Trading Comm’n v. Vartuli, 228 F.3d 94, 108 (2d Cir.
2000); Consolidated Cigar Corp. v. Reilly, 218 F.3d 30, 54 (1st Cir. 2000). Of course, the state must
always meet its burden of justifying the need for regulation in the first place. See Ibanez, 512 U.S.
at 146-47, 114 S. Ct. at 2090-91; Mason, 208 F.3d at 958. The holding of Douglas simply
recognizes that the Board’s burden is lower than it would be had it prohibited Walker from
advertising truthful information.
The Constitutionality of DR 2-101(C)(3)
The Board argues that Tennessee’s interest in requiring non-certified attorneys who advertise
specialty services to include a disclaimer in their ads is substantial: protecting consumers of legal
services by allowing them to make informed judgments about which attorney to hire to handle their
legal needs. We agree that this interest is substantial. As one court has put it, “the state, as part of
its duty to regulate attorneys, has an interest in ensuring and encouraging the flow of helpful, relevant
information about attorneys.” Mason, 208 F.3d at 956; see also Peel, 496 U.S. at 110, 110 S. Ct. at
2293 (“Information about certification and specialties facilitates the consumer’s access to legal
services and thus better serves the administration of justice.”). See generally Florida Bar, 515 U.S.
at 625, 115 S. Ct. at 2376 (“States have a compelling interest in the practice of professions within
their boundaries, and . . . as part of their power to protect the public health, safety, and other valid
interests they have broad power to establish standards for licensing practitioners and regulating the
practice of professions.”) (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S. Ct. 2004,
2016, 44 L. Ed. 2d. 572 (1975)).
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Since the state’s interest is substantial, the question is whether DR 2-101(C)(3)
is reasonably related to promoting that interest. See Douglas, 921 S.W.2d at 186 (quoting Zauderer,
471 U.S. at 650-51, 105 S. Ct. at 2281-82). The record before this Court when the certification
disclaimer rule was considered in 1993 reveals that the Commission on Continuing Legal Education
(“Commission”), which petitioned this Court to adopt the rule, had the following concern: lawyers
who were advertising specialties were actually obtaining far fewer Continuing Legal Education hours
of training than leading practitioners in that specialty area who were not advertising. See
Commission on Continuing Legal Education, Attorney Specialization in Tennessee 5 (1992)
(reprinted in In re Petition to Amend Supreme Court Rules 8 and 21, No. 01S01-9304-OT-00066
(filed Feb. 26, 1993) (Ex. C)).2 This was problematic because an American Bar Association survey
indicated that the public expected a lawyer who advertised in a particular area of law to have greater
education in that area than other lawyers. See id. (citing ABA Specialization Desk Book, A Survey
on How the Public Perceives a Specialist (1990)). The Commission thought the public would be
better served if presented with a more accurate picture of an advertising lawyer’s level of education.
The disclaimer rule the Commission advocated and this Court ultimately adopted promotes
the Commission’s legitimate goal by clearly and succinctly providing the public with information
about the certification status of attorneys who advertise their services. This information will help
a consumer identify which lawyers may have more experience and education in a particular area of
law3 – knowledge which will help that consumer hire a lawyer to represent his interests. It is not
contended, of course, that the disclaimer rule by itself provides all the useful information the public
might wish to obtain; indeed, many attorneys advertise, and consumers will still have to make
choices among attorneys with a similar certification status. But the information required by DR 2-
101(C)(3) is one piece of information that will assist consumers in making those choices. The
required disclaimer is therefore reasonably related to promoting the substantial interest of helping
consumers to make informed judgments about which attorneys they should entrust with their legal
needs.
2
The Commission conducted a survey comparing the number of continuing legal education hours
earned per year by attorneys who advertised (Advertisers) with display ads in the yellow pages to hours
earned by attorneys recognized as leading practitioners (LPs) in four areas of law: bankruptcy, criminal
defense, domestic relations, and personal injury. See Commission, supra, at 13-14. The results were as
follows: (1) in bankruptcy the LPs averaged 14.6 hours and the Advertisers averaged 4.1 hours; (2) in
criminal defense the LPs averages 19.6 hours and the Advertisers averaged 2.2 hours; (3) in domestic
relations the LPs averaged 8.7 hours and the Advertisers averaged 1.9 hours; and (4) in personal injury the
LPs averaged 16.2 hours and the Advertisers averaged 6 hours. Id.
3
The Supreme Court Rules require that “[a]t a minimum, any certification standards established
by the Commission must provide a reasonable basis for the determination that the lawyer possesses special
competence in a particular field of law . . .” S. Ct. R. 21 § 10.03. Section 10.03 sets forth in general terms
the requirements that certification programs must meet before they are recognized by the Commission.
These requirements ensure that attorneys who are certified have demonstrated sufficient experience,
knowledge, and practice management skills, that they have good recommendations from other attorneys,
judges, and clients, and that they be re-certified at least every six years. Id.
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Next, we must determine whether DR 2-101(C)(3) is unduly burdensome. The United States
Supreme Court in Ibanez confronted a Florida Board of Accountancy rule that required a Certified
Financial Planner who included a specialist designation on an advertisement to disclose, among other
things, the requirements for recognition of the agency that certified her as a specialist. Ibanez, 512
U.S. at 146, 114 S. Ct. at 2090. Although the Court concluded that the disclosure requirement was
unconstitutional because the Florida Board had failed to justify the need for such regulation, it also
noted that the disclosure requirement was too burdensome: “The detail required in the disclaimer
currently described by the Board effectively rules out notation of the ‘specialist’ designation on a
business card or letterhead, or in a yellow pages listing.” Id., 512 U.S. at 146-47, 114 S. Ct. 2090-
91. In contrast to the detailed disclaimer in Ibanez, the disclaimer required by DR 2-101(C)(3) is
as short and free of burdensome detail as possible. It simply requires the following language: “Not
certified as a (area of practice) specialist by the Tennessee Commission on Continuing Legal
Education and Specialization.” This statement does not require an attorney who advertises his skills
to disclose anything more than the basic fact of his non-certification; no extraneous information or
lengthy detail is required. We hold that the disclaimer here satisfies the constitutional standard.
Finally, Walker argues that even if the disclosure rule is constitutional, the State cannot
require him to use the precise language listed in DR 2-101(C)(3). He argues that any statement that
conveys the same meaning as the specific language in the disciplinary rule is sufficient. He claims
that his disclaimer, which states that he was “not certified as a specialist by the Tennessee
Commission on Certification and Specialization,” meets this standard. Consequently, he argues that
no sanction against him is permissible on this ground. We will respond to this argument directly,
but we first note that Walker received one of the lighter sanctions, a private reprimand, and that this
sanction was fully justified by Walker’s failure to include any disclaimer on some of his ads.
Walker argues that the United States Supreme Court’s decision in In re R.M.J., 455 U.S. 191,
102 S. Ct. 929, 71 L. Ed. 2d 64 (1982) supports his position. We disagree. R.M.J. held that an
attorney could not be disciplined for deviating from the precise listing of areas of practice which a
Missouri disciplinary rule required him to follow when advertising his specialty skills. Id., 455 U.S.
at 205, 102 S. Ct. at 938. Specifically, the attorney advertised his skills in the area of “real estate”
instead of the required “property,” and he listed his skills in “contracts” and “securities” though no
such designations has been approved by the Missouri state board. Id. The Court’s rationale was that
“the listing published by the appellant has not been shown to be misleading, and...the [Missouri
Board] suggests no substantial interest promoted by the restriction.” Id.
Unlike R.M.J., where the attorney’s advertisements could not have been misleading, we think
that deviations from the specific wording of DR 2-101(C)(3) could lead to public confusion. The
required disclaimer statement was worded in the most simple, direct fashion so that the public would
have no difficulty understanding its meaning or comparing different attorney advertisements. This
goal might easily be thwarted if attorneys were allowed to write their own disclaimer statements.
Rather than focus on the intended message – that an attorney is not certified – a consumer would be
forced to parse the meaning of different disclaimer statements, attempting to understand without any
guidance why one attorney’s disclaimer was different than another’s.
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The Board’s interest in requiring uniform language is significant for another reason. Just as
the absence of uniformity would require a consumer to compare many different disclaimer
statements, so would the Board, and subsequently the courts, be forced to examine advertisement
after advertisement in an effort to determine which attorneys substantially complied with DR 2-
101(C)(3) and which attorneys fell somewhat short. This costly and inefficient task seems entirely
unnecessary in light of the ease of complying with a uniform rule – especially one which is as short
and free of burdensome detail as possible.
In upholding the requirement that lawyers who advertise adhere to the exact language in DR
2-101(C)(3) we note what the United States Supreme Court stated in Zauderer. Responding to the
appellant’s argument that the Ohio Supreme Court’s disclosure rule in that case was “unduly
burdensome,” the Court stated that “[t]he vagueness of the Ohio Supreme Court’s opinion regarding
precisely what an attorney must disclose in an advertisement mentioning a contingent fee is . . .
unfortunate.” Zauderer, 471 U.S. at 653 n.15, 105 S. Ct. at 2283 (suggesting that Ohio’s failure to
articulate the requirements of its disclosure rule would prohibit disbarment of an attorney who
violated the rule on due process and First Amendment grounds). In contrast, DR 2-101(C)(3) is
perfectly clear, and that clarity buttresses rather than undermines its constitutionality.
The Imposition of Costs
Having held that DR 1-201(C)(3) is constitutional, it is clear that the Board’s sanction against
Walker is justified. Therefore, according to Tennessee Supreme Court Rule 9, Walker is responsible
for the costs of the proceeding. See S. Ct. R. 9 § 24.3 (“[T]he Board shall assess against the
respondent attorney the costs of the proceedings . . . the expenses of the hearing committee in the
hearing of the cause, and the hourly charge of disciplinary counsel in investigating and prosecuting
the matter.”). Walker maintains, however, that the circumstances of the proceedings against him
warrant that he be absolved from having to pay these costs. He argues that he and the Assistant
Disciplinary Counsel negotiated a settlement of the case prior to the hearing without discussing the
issue of costs. Because he had not explicitly agreed to pay costs, Walker asserts that the agreed
judgment does not accurately reflect the parties’ agreement.
The Board responds that the Assistant Disciplinary Counsel forwarded Walker’s attorney a
copy of the proposed order which included the cost provisions discussed above on two separate
occasions, and that Walker’s attorney failed to respond. We need not resolve this dispute of fact,
however, because the application of the rule does not depend upon whether the attorney subject to
discipline received personal notice of its contents. Rather, the rule states that “the Board shall assess
against the respondent attorney the costs of the proceedings.” S. Ct. R. 9 § 24.3 (emphasis added).
This rule, which requires the imposition of costs in all disciplinary cases, is published as part of the
“Disciplinary Enforcement” section of the Supreme Court Rules. All attorneys subject to discipline
have the opportunity to read this section carefully. We therefore affirm the Hearing Committee and
the Chancery Court on this issue.
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Prior to this appeal the Board assessed costs against Walker in the amount of $2,096.90. We
remand this case back to the Board to determine the final costs for which Walker is responsible,
including the proceedings before this Court.
CONCLUSION
For the reasons discussed above, we affirm the Chancery Court’s ruling that the disclaimer
requirement of DR 2-101(C)(3) is constitutional and that Walker is required to pay for the costs of
this disciplinary action under Supreme Court Rule 9 section 24.3. We remand to the Board for a
determination of the total costs for which Walker is responsible.
FRANK F. DROWOTA, III, JUSTICE
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