In Peel v. Attorney Disciplinary Commission of Illinois, 496 U.S. 91 (1990), a sharply divided Supreme Court determined that Illinois could not censure an attorney for truthfully stating that he was certified as a trial specialist by the National Board of Trial Advocacy. The case reaffirms the general First Amendment principle favoring the disclosure of information.
Peel was censured for truthfully stating he was a “trial specialist”
Gary E. Peel, an Illinois attorney, obtained certification as a civil trial specialist from the private organization National Board of Trial Advocacy in 1981. In 1983 he changed his letterhead to reflect his certification, along with the fact that he was licensed to practice law in Illinois, Missouri, and Arizona.
The Illinois Attorney Registration and Disciplinary Commission contended that Peel’s letterhead violated a provision of the Illinois Code of Professional Responsibility that states that “no lawyer may hold himself out as ‘certified’ or a ‘specialist.’ ” The Commission recommended a public censure, which the Illinois Supreme Court affirmed.
The state high court rejected Peel’s First Amendment arguments, reasoning that the letterhead was misleading in several ways. The court determined that the certification implied that Peel provided higher-quality legal services than other attorneys. The court also agreed with the Commission that the letterhead improperly implied that Illinois had sanctioned a formal program of certification.
Supreme Court ruled in favor of Peel
On appeal, the U.S. Supreme Court reversed, ruling in Peel’s favor in a 5-4 decision. Writing for the plurality, Justice John Paul Stevens determined that the letterhead was not misleading but stated a verifiable fact — that Peel had earned the certification. Stevens also wrote that the public could distinguish between private certification by a private group like the National Board of Trial Advocacy and official licensing by the state. Stevens acknowledged the outcome could be different if the state could show the certification was a “sham” and that the state may be able to require a disclaimer about the certification process. He concluded that the state had not rebutted “the constitutional presumption favoring disclosure over concealment [of information].”
Justice Thurgood Marshall wrote that Peel’s letterhead was “potentially misleading” because many members of the public could believe that the National Board of Trial Advocacy was a governmental agency; nevertheless, he concurred because he ruled the constitutional response from the state was not to ban completely the statement but to add “additional information” explaining the certification.
Dissenters thought Peel, not the state, should clean up the misleading advertising
In dissent, Justice Byron R. White agreed that Peel’s letterhead was “potentially misleading” but reasoned that it should be Peel’s responsibility “to clean up his advertisement so as to eliminate its potential to mislead.”
Justice Sandra Day O’Connor — joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia — also wrote a dissent, criticizing the plurality for failing to give the states sufficient latitude to regulate attorneys. She pointed out that 19 states and the District of Columbia banned certification claims by attorneys. She believed the letterhead was “inherently misleading.”
The decision has had considerable impact on the legal profession because the American Bar Association in its model rules of professional conduct and various state rules generally permit lawyers to state that they are specialists and certified by private organizations that have met state regulatory requirements.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.