In re PRB Docket No. 2002.093

Annotate this Case

In re PRB Docket No. 2002.093 (2003-519); 177 Vt. 629; 868 A.2d 709

2005 VT 2

[Filed 11-Jan-2005]

ENTRY ORDER

2005 VT 2

SUPREME COURT DOCKET NO. 2003-519

JUNE TERM, 2004

In re PRB Docket No. 2002.093 } APPEALED FROM:
}
}
} Professional Responsibility Board
}
}
} DOCKET NO. PRB 2002.093

In the above-entitled cause, the Clerk will enter:

¶ 1. We review, sua sponte, a Professional Responsibility Board
Hearing Panel decision that respondent attorney placed a misleading
advertisement of professional services, in violation of Rule 7.1 of the
Vermont Rules of Professional Conduct, and should be privately admonished
as a consequence.(FN1) We affirm the hearing panel's finding and penalty
recommendation.

¶ 2. The facts, as stipulated by the parties and found by the
hearing panel, may be briefly summarized. Respondent placed an
advertisement in the Yellow Pages describing his law firm-in large capital
letters placed at the top of the advertisement-as "INJURY EXPERTS." Below
this description was a list of the firm's attorneys and a second, smaller
caption reading: "WE ARE THE EXPERTS IN" followed by three enumerated areas
of law. A complaint concerning the advertisement was filed with the Board,
resulting in the firm's decision to revise the advertisement the following
year by removing the quoted language.

¶ 3. Based on respondent's and disciplinary counsel's joint
recommendation, the hearing panel concluded that respondent had violated
Rule 7.1(c), by placing an advertisement that implicitly compared his
firm's services with those provided by other lawyers in a way that can not
be "factually substantiated." The panel noted that the phrase "the experts"
was "an implicit statement of superiority" as compared with other firms,
and had a "serious potential to mislead the consumer, since there is no
objective way to verify the claim." The panel further concluded that the
alternative description of the firm as "injury experts" was not "likely to
create an unjustified expectation about results the lawyer can achieve,"
and therefore was not misleading under Rule 7.1(b). In response to
disciplinary counsel's subsequent motion, however, the panel amended its
decision, ruling that the phrase "injury experts" was "likely to create an
unjustified differentiation and expectation among those reading the
advertisement about the results which can be achieved by a lawyer claiming
to be an expert" that could not be objectively substantiated, and therefore
was a violation of the Rule. We ordered review on our own motion, under
A.O. 9, Rule 11(E), to address an issue of substantial and continuing
import to the bar and the public at large.

¶ 4. On review by this Court, a disciplinary hearing panel's
findings, "whether purely factual or mixed law and fact, are upheld if they
are clearly and reasonably supported by the evidence." In re Sinnott, 2004
VT 16, ¶ 10, 15 Vt. L. W. 63, 845 A.2d 373 (internal citations omitted).
Similarly, while we retain ultimate authority over the decision as to
sanctions, we nevertheless give deference to the panel's recommendation.
In re Anderson, 171 Vt. 632, 634, 769 A.2d 1282, 1284 (2000) (mem.).

¶ 5. Lawyer advertising is not a subject that we have previously
addressed in the disciplinary context, although the last several decades
have witnessed substantial regulatory changes both nationally and in many
states-including our own-resulting in large measure from a series of
seminal United States Supreme Court cases. Bates v. State Bar of Arizona,
433 U.S. 350, 383 (1977) is the landmark decision in which the high court
held that lawyer advertising is a form of commercial speech protected by
the First Amendment and therefore not subject to "blanket suppression."
The Supreme Court recognized, however, that states may adopt regulations to
ensure that advertising is not "false, deceptive, or misleading." Id.
Thus, while holding that truthful statements regarding lawyer fees-the
precise issue in Bates-were permissible, the Court was careful to
acknowledge that

because the public lacks sophistication concerning legal
services, misstatements that might be overlooked or deemed
unimportant in other advertising may be found quite
inappropriate in legal advertising. For example, advertising
claims as to the quality of services-a matter we do not
address today-are not susceptible of measurement or
verification; accordingly, such claims may be so likely to be
misleading as to warrant restriction.

Id. at 383-84 (footnote omitted).

¶ 6. The high court refined its analysis of attorney advertising
several years later in In re R.M.J., 455 U.S. 191, 205 (1982), holding that
the use of truthful, nondeceptive terminology to describe an attorney's
field of practice that was not on the state's approved list ("property"
instead of "real estate" law) could not be prohibited. Echoing Bates,
however, the Court again cautioned that "claims as to quality . . . might
be so likely to mislead as to warrant restriction." Id. at 201. The
"quality" issue was directly joined in Peel v. Attorney Registration &
Disciplinary Comm'n of Ill., 496 U.S. 91 (1990). The issue there was
whether a state could discipline a lawyer for truthfully advertising that
he was a "Certified Civil Trial Specialist by the National Board of Trial
Advocacy" under a rule prohibiting lawyers from advertising themselves as
"certified" or as "specialists" except in limited circumstances. Id. at
96-97. A plurality of the Court, noting that the advertisement was
truthful and objectively verifiable, held that it was neither inherently
nor potentially misleading and therefore could not be prohibited. Id. at
110-11. Justice Marshall, in a concurring opinion joined by Justice
Brennan, observed that the statement had the potential to mislead
nonlawyers unfamiliar with the certifying agency, and suggested that rather
than banning such statements, states could require supplemental "warning[s]
or disclaimer[s]" explaining, for example, that the National Board of Trial
Advocacy is a private organization not sanctioned by the state or federal
government, to assure that the consumer was not misled. Id. at 117
(Marshall, J., concurring).

¶ 7. The American Bar Association Model Rules of Professional
Conduct (Model Rules), which many states, including Vermont, have adopted,
have been amended a number of times largely to conform to the high court's
decisions. See In re Gadbois, 173 Vt. 59, 63, 786 A.2d 393, 397 (2001)
(noting that Vermont adopted the Model Rules as of September 1, 1999); see
generally Note, Lawyer Certification and Model Rule 7.4: Why We Should
Permit Advertising of Speciality Certifications, 5 Geo. J. Legal Ethics
939, 940-42 (1992) (tracing case law development and model rule changes).
Thus, Vermont's general rule on attorney advertising, Rule 7.2, permits
lawyers to advertise their services through such public media as telephone
directories, newspapers, television, and radio, subject to the requirements
of Rules 7.1 and 7.3. Rule 7.1 prohibits "false or misleading"
communications about the lawyer or the lawyer's services, and Rule 7.3
regulates direct client contact and solicitation. In addition, Rule 7.4
specifically regulates communications concerning a lawyer's area of
practice, providing that a lawyer may communicate the fact that he or she
"does or does not practice in particular fields of law." Under Rule
7.4(c), however, a lawyer may not "state or imply that the lawyer has been
recognized or certified as a specialist in a particular field of law"
except in limited circumstances involving patent and admiralty lawyers, or
where the lawyer has been certified as a specialist by a "named
organization," provided that the advertisement contains a disclaimer
stating that there is no procedure in Vermont for approving certifying
organizations.(FN2)

¶ 8. Considered in light of the foregoing decisional and
regulatory framework, we have little difficulty here in affirming the
panel's findings. As the case law and rules make clear, in the area of
communications concerning attorney "quality" or "specialization" the
underlying principle is that consumers should be free to infer for
themselves an attorney's level of quality or expertise so long as the
information conveyed is truthful, objectively verifiable, and not otherwise
misleading. Direct claims of expertise that are not truthful and factually
verifiable, however, may be prohibited or restricted as unduly misleading.
See, e.g., Spencer v. Honorable Justices of the Sup. Ct. of Pa., 579 F. Supp. 880, 887 (E.D. Pa. 1984) (rejecting constitutional challenge to
attorney advertising regulation because "[c]laims using such terms as
'experienced,' 'expert,' 'highly qualified,' or 'competent' are difficult
for a layman to confirm, measure, or verify"); Office of Disciplinary
Counsel v. Furth, 754 N.E.2d 219, 225, 231-32 (Ohio 2001) (attorney's web
site claiming to be "passionate and aggressive advocate" violated rule
prohibiting unverifiable self-laudatory statements); Medina County Bar
Ass'n v. Grieselhuber, 678 N.E.2d 535, 537 (Ohio 1997) (lawyer's yellow
pages advertisement claiming "We Do It Well" violated rule against
communication of claims that could not be verified). Plainly, therefore,
respondent's advertisement proclaiming his firm to be "injury experts" and
"the experts" in certain enumerated fields of law falls squarely within
that category of qualitative advertising claims that are not susceptible of
measurement or verification. Thus, as the panel found, they are "likely to
create an unjustified expectation and differentiation among those reading
the advertisement about the results which can be achieved by a lawyer
claiming to be an expert," in violation of Rule 7.1.

¶ 9. Respondent does not challenge the panel's finding that the
description of his firm as "the experts" in certain enumerated areas of
practice was an implicit comparison with other lawyers' services that was
not factually verifiable, in violation of Rule 7.1(c). He asserts,
however, that his use of the phrase "injury experts" was permissible under
the rules because it was merely the equivalent of describing the firm as
"injury specialists." Respondent notes, in this regard, that the official
Comment to Rule 7.4 indicates that "[a] lawyer is generally permitted to
state that the lawyer is a 'specialist,' practices a 'specialty,' or
'specializes in' particular fields, but such communications are subject to
the 'false and misleading' standard applied in Rule 7.1 to communications
concerning a lawyer's services." Vt. Rules of Prof'l Conduct, R. 7.4 cmt.
We find the argument to be unpersuasive for two reasons. First, the terms
"specialist" and "specialty" are employed in the Comment to Rule 7.4 to
refer solely to the subject of the Rule, i.e., the communication of "the
fact that the lawyer does or does not practice in particular fields of
law." Id. at R. 7.4 (emphasis added). Nothing in the Comment suggests
that it was intended to sanction the use of such qualitative terms as
"expert" or "expertise."

¶ 10. Furthermore, to the extent that the term "specialist" may
imply expertise, as well it might to the lay consumer (FN3), we note that
the Comment expressly subjects such communications to the "false and
misleading" standard of Rule 7.1. Accordingly, while the issue is not
directly raised, we take the opportunity to observe that any attorney
advertisement using the term "specialist" or "specialty" in this sense
should be qualified by a disclaimer that the attorney has not been
certified as a specialist by any recognized organization, in order to avoid
potential confusion to the consumer and to comport with Rule 7.1's
prohibition against misleading communications. See R.M.J., 455 U.S. at 201
(noting that "a warning or disclaimer might be appropriately required . . .
in order to dissipate the possibility of consumer confusion or deception");
Mezrano v. Ala. State Bar, 434 So. 2d 732, 734-35 (Ala. 1983) (upholding
rule requiring disclaimer in attorney advertising stating that "[n]o
representation is made about the quality of the legal services to be
performed or the expertise of the lawyer performing such services")
(quotations omitted); Miss. Bar v. Attorney R., 649 So. 2d 820, 822 (Miss.
1995) (upholding requirement that attorney advertisement listing areas of
practice include disclaimer that it "does not indicate any certification or
expertise therein"); Walker v. Bd. of Prof'l Responsibility of the Sup. Ct.
of Tenn., 38 S.W.3d 540, 548-49 (Tenn. 2001) (upholding requirement that
attorneys who advertise with regard to any area of law but are not
certified in that area include disclaimer that they are "[n]ot certified as
a . . . specialist").

¶ 11. Finally, both respondent and disciplinary counsel accept
the panel's recommendation, based on the parties' stipulation, that we
impose a private admonition. In arriving at this sanction, the panel
looked to A.O. 9, Rule 8(A)(5)(b), which authorizes an admonition in cases
of minor misconduct, when there has been little or no injury to a client,
the public, the legal system, or the profession, and when there is little
likelihood of repetition by the lawyer. The panel also considered the
American Bar Association Standards on Imposing Sanctions § 7.4, which
provides that admonitions are appropriate when a lawyer has engaged in an
isolated instance of negligence with little or no resulting harm to the
client, the public, or the legal system. The panel determined that the
conduct in this case met these criteria, and we discern no basis to
question the panel's findings or to impose a different or additional
sanction.

Affirmed.

BY THE COURT:

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice

_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned

Note: Chief Justice Amestoy was present when the case was submitted on the
briefs but did not participate in this decision.

----------------------------------------------------------------------------
Footnotes

FN1. Rule 7.1 provides as follows:

A lawyer shall not make a false or misleading communication about the
lawyer or the lawyer's services. A communication is false or misleading if
it:

(a) contains a material misrepresentation of fact or
law, or omits a fact necessary to make the statement
considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about
results the lawyer can achieve, or states or implies that the
lawyer can achieve results by means that violate the Rules of
Professional Conduct or other law; or

FN2. The disclaimer is not required if "the named organization has been
accredited by the American Bar Association to certify lawyers as
specialists in a particular field of law." Rule 7.4(c).

FN3. See, e.g., Fla. Bar v. Herrick, 571 So. 2d 1303, 1307 (Fla. 1991) ("By
characterizing himself as a specialist, an attorney does more than merely
indicate that he practices within a particular field. The term
'specialist' carries with it the implication that the attorney has special
competence and expertise in an area of law."); In re Robbins, 469 S.E.2d 191,193 (Ga. 1996) (upholding State Bar's assertion that use of the term
"specialist" is misleading based on evidence that "a substantial percentage
of the public expects lawyers claiming to be 'specialists' to have certain
qualities which non-specialists in the same field do not have, and to do a
better job") (quotations omitted).

---------------------------------------------------------------------------
55 PRB

[Amended 19-Nov-2003]
[4-Jun-2003]

STATE OF VERMONT
PROFESSIONAL RESPONSIBILITY BOARD

In re PRB File No. 2002.093

AMENDMENT TO Decision No. 55

In Decision No. 55 filed June 4, 2003, this Panel considered a
complaint regarding a law firm's Yellow Pages advertisement. The Panel
found that a statement identifying the attorneys as "the experts" in
enumerated areas of law violated Rule 7.1(c), which prohibits any
advertisement or other communication that "compares the lawyer's services
with other lawyers' services, unless the comparison can be factually
substantiated." The Panel declined, however, to find that use of the
phrase, "injury experts," violated Rule 7.1(b), which prohibits any
advertisement or other communication that "is likely to create an
unjustified expectation about results the lawyer can achieve."

Disciplinary Counsel has filed a Motion to Reconsider the second
portion of our decision, and we have done so.

In making our initial decision, we were influenced by two factors.
The first of these is the historical evolution of the entire issue of
attorney advertising. In a relatively short time the Bar has gone from an
absolute ban on advertising to liberal rules which allow many types of
advertising. The other evolution which affected our decision is that of
the consumer. Sophisticated advertising has become pervasive in our
culture, and the consumer today has likewise become much more sophisticated
and discerning in his or her approach to advertising.

In her Motion to Reconsider, Disciplinary Counsel has asked us to
consider two advertisements -- the first stating that a lawyer practices
"personal injury law," and the second indicating that a lawyer is an
"injury expert." Disciplinary Counsel has persuaded us that the use of the
term "expert" in this context is likely to create an unjustified
differentiation and expectation among those reading the advertisement about
the results which can be achieved by a lawyer claiming to be an expert.
Moreover, factually substantiating a claim that one is an "expert" is
problematic.

The Panel is troubled by the ramifications if its previous decision
leads lawyers to conclude that they can label themselves, to continue the
example, as "injury experts" without violating the Rule. Other
practitioners in the field would then have to choose between also claiming
to be "experts," or risk placing themselves at a competitive disadvantage.
Upon reflection, we are persuaded that use of the term "expert" in this
context benefits neither the Bar nor the consumer.

Conclusion

We therefore amend Decision No. 55 to find a violation of 7.1(b) of
the Vermont Rules of Professional Conduct on the facts of the case
presented, for the use of the term "injury experts" in the subject Yellow
Pages advertisement. For this violation, for the reasons set forth in its
previous opinion, the Panel approves the imposition of an ADMONITION by
Disciplinary Counsel.

Dated: November 19th, 2003

HEARING PANEL NO. 1

/s/
______________________________
Barry E. Griffith, Esq., Chair

/s/
______________________________
Martha M. Smyrski, Esq.

/s/
_____________________________
Stephen Anthony Carbine

-------------------------------------------------------------------------------
55 PRB

[4-Jun-2003]

STATE OF VERMONT
PROFESSIONAL RESPONSIBILITY BOARD

In re: PRB File No. 2002.093

Decision No. 55

This matter comes before us on a stipulation of facts, a joint
recommendation that the Hearing Panel conclude that Respondent violated
Rule 7.1 of the Vermont Rules of Professional Conduct, and a joint
recommendation that the Hearing Panel approve a private admonition by
Disciplinary Counsel, pursuant to Rule 8(A)(5)(a) of A.O. 9. The Hearing
Panel accepts the facts. The recommended conclusion is accepted in part.
The recommended sanction is also accepted.

The Hearing Panel directs that Respondent be admonished by
Disciplinary Counsel for placing an advertisement in the Yellow Pages,
stating that the lawyers in the firm were "the experts in . . ." enumerated
areas of law (emphasis supplied). We find that this statement to be in
violation of Rule 7.1(c) of the Vermont Rules of Professional Conduct,
which prohibits any advertisement or other communication which "compares
the lawyer's services with other lawyers' services, unless the comparison
can be factually substantiated." We do not find the remaining portion of
the ad to be in violation of Rule 7.1. The facts and a discussion of our
conclusion appear below.

Facts

Respondent's firm placed an advertisement in the Yellow Pages
advertising the services of the firm. The advertisement stated that the
lawyers in the firm were "injury experts" and that they were "the experts
in..." three enumerated areas of law. A complaint was made to the
Professional Responsibility Program. After the complaint was filed, but
before the matter was prosecuted by Disciplinary Counsel, the firm revised
their ad for the following year by removing the quoted language. Their
current advertisement does not violate the Rules of Professional Conduct.
There was no evidence presented that anyone had been misled or deceived by
this advertising, nor was there any evidence presented of the firm's lack
of experience in the advertised areas.

Conclusions of Law

Our decision is made under Rule 7.1 of the Rules of Professional
Conduct, which provides as follows:

A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer's services. A communication
is false or misleading if it:

(a) contains a material misrepresentation of fact or
law, or omits a fact necessary to make the statement
considered as a whole not materially misleading;

To place the Rule in context and to properly apply it, we have found
it appropriate to consider the evolution of opinion about lawyer
advertising by the courts, the practicing bar and the public. That
evolution is traced, inter alia, in Wolfram, Modern Legal Ethics (1986) at
776-780.

While it may initially have been viewed as unseemly or vulgar, it was
not until the early twentieth century that bar associations began to enact
regulations declaring that lawyer advertising was unethical. These
prohibitions tended to be strictly enforced until the 1970's, when
challenges began to be raised on antitrust and free expression grounds.

State bar rules strictly prohibiting lawyer advertising were declared
unconstitutional by the United States Supreme Court in Bates v. State Bar
of Arizona, 433 U.S. 350 (1977). Bates involved a lawyer's newspaper
advertisement offering "very reasonable fees" and listing fees for various
matters, such as uncontested divorces. The Supreme Court held that such
advertising is commercial speech, entitled to protection under the First
Amendment. The decision was a narrow one and did not reach the issue of
advertising that speaks to the quality of the legal representation. In his
opinion Justice Blackman stated "[f]irst, we need not address the peculiar
problems associated with advertising claims relating to the quality of
legal services. Such claims probably are not susceptible of precise
measurement or verification and, under some circumstances, might well be
deceptive or misleading to the public, or even false." 433 U.S. 366. Thus
the Court did not close the door on all quality advertising, only that
which is deceptive or misleading.

The Bar made two different responses to the Bates decision. The
Model Code solution was to state in narrow terms what was permitted. The
second approach, adopted by the Model Rules, to prohibit false or
misleading advertising. Although Vermont at the time followed the Code of
Professional Responsibility, our Supreme Court's response to the Bates
decision was to adopt the language of the Model Rule, now incorporated in
Rule 7.1, which we apply to this case.

In addressing the instant case, it is helpful to review
one of the core arguments raised by the State Bar in the
Bates case, and the Court's response. The Bar argued that
advertising does not give enough information to the public to
enable it to make an informed decision and is therefore
inherently misleading. The Court's response is basically
that some information is better than none, and that the
public is able to evaluate advertising claims.

Moreover, the argument assumes that the public is not
sophisticated enough to realize the limitations of
advertising, and that the public is better kept in ignorance
than trusted with correct but incomplete information. We
suspect the argument rests on an underestimation of the
public. In any event, we view as dubious any justification
that is based on the benefits of public ignorance. Although,
of course, the bar retains the power to correct omissions
that have the effect of presenting an inaccurate picture, the
preferred remedy is more disclosure, rather than less. If
the naiveté of the public will cause advertising by attorneys
to be misleading, then it is the bar's role to assure that
the populace is sufficiently informed as to enable it to
place advertising in its proper perspective. Id. at 374-75.
(Citations omitted)

Rule 7.1 indicates three ways in which an advertisement or other
communication can be false or misleading. Clearly, a material
misrepresentation of fact or law would qualify, but it is not suggested
that provision applies here. Rather, we agree with the parties that the
advertising claim that the lawyers in Respondent's law firm were "the
experts" in enumerated fields of law violates Rule 7.1(c), which prohibits
comparisons of the lawyers services with others unless such comparisons can
be "factually substantiated." We find this is an implicit comparison and
an implicit statement of superiority which violates the Rule. It is quite
likely that even members of the bar would have difficulty identifying the
expert in any given area of law. Such claims we believe do have a serious
potential to mislead the consumer, since there is no objective way to
verify the claim.

We now consider that portion of the ad which claimed that Respondent's
firm were "injury experts." The Hearing Panel has given consideration to
whether the cited advertisement violates Rule 7.1(b), which prohibits
statements "likely to create an unjustified expectation about results the
lawyer can achieve."(FN1) As pointed out by Disciplinary Counsel, there
is authority to the effect that any use of the terms "expert" or
"experience" is misleading per se. A decision advocating this position is
Spencer v. Justices of the Supreme Court of Pennsylvania, 579 F. Supp. 880
(E.D.Pa.1984). Here the court upheld discipline in the case of a lawyer
who, in his legal advertising, stated that he was an experienced pilot.
The court stated that "a lawyer may describe the quality of his legal
services only through the use of objective, verifiable terms such as the
number of cases handled in a particular legal field or the number of years
in practice." 578 F. Supp. at 888. See also Capoccia v. Comm. on
Professional Standards, 59 U.S.L.W. 2445 (N.D.N.Y. 1990) (advertisement
that attorney is a "smart, tough lawyer" who can get "fast, fair cash
compensation" for auto accident victims is not false or misleading, given
the state's no-fault law).

While realizing that the majority opinion in this area may be to the
effect that any claims of expertise are inherently misleading and therefore
in violation of the disciplinary rules, the Panel is not persuaded that the
original intent of the Bates decision is to prohibit all such claims. Like
Justice Blackmun, we believe that the public is savvy enough to sort
through such claims and that, especially in a state as small as Vermont, it
is probably no less difficult to determine a lawyer's general reputation
for competency than it is to determine how many cases of a certain type the
lawyer has handled. Also, as Justice Blackmun suggested, the remedy for
this perceived problem should be education by the Bar rather than
prohibition by way of the disciplinary rules.

It is important to keep in mind the fact that Disciplinary Counsel in
this case and courts in other jurisdictions have found a violation merely
because of the potential to deceive or mislead the public. There is no
evidence that anyone was actually misled by the ad in question, nor is
there any claim that it was in fact untrue. Disciplinary Counsel concedes
in her memorandum that attorneys in Respondent's firm do have substantial
experience in the advertised areas. This is a fact that is not impossible
for the consumer to discover.

We believe this case can be distinguished from the earlier Vermont
advertising cases. In In re Anonymous Attorney, PCB Decision No. 38 (File
No. 1990.052), a sole practitioner did business under the firm name
"[Respondent] & Associates." Unlike the present case, this was not a claim
of quality or experience. It was a public representation of something that
was untrue and, while the Board held it to be misleading, it was so because
it was false.

The 1995 case, In re Anonymous Attorney, PCB Decision No. 88 (File No.
1995.022), in which the lawyer advertised as "specializing in divorce and
family law" can also be distinguished. The disciplinary rule in force at
that time prohibited claims of specialization except in limited
circumstances. The present rule on specialization, Rule 7.4, is much
broader than the old rule and there is a distinct difference between the
claim of being an "expert" and that of being a "specialist." The latter
has always implied some certification or special training in addition to
mere experience.

The Panel is also persuaded by the arguments raised in an article by
Bernadette Miragliotta in the Annual Survey of American Law entitled "First
Amendment: The Special Treatment of Legal Advertising." 1990 Ann. Surv.
Am. L. 597, (1991). The author reviews the history of judicial response to
legal advertising since the Bates decision. She concludes that advertising
is of benefit to the consumer, and argues for reducing restriction on
quality claims. As she points out, lawyers are competing in the economic
marketplace in the same way as other providers of goods and services. No
advertising can present a complete picture of the nature and quality of
services, and the public's skills at sorting out quality claims in other
consumer areas can be applied equally to the interpretation of lawyer
advertising. If we recognize the ability of the consumer to make judgments
about advertising, our response should be to encourage rather than restrict
the amount of information flowing to the public. The author also makes the
point that advertising provides a source of information to the poor and the
disadvantaged who have fewer peers who are consumers of legal services, and
are thus less able to obtain referrals through word of mouth. (Page 631).

For these reasons we find that the claim that the attorneys were
"experts" is not a violation of Rule 7.1 and that portion of the charge is
dismissed.

Sanctions
Administrative Order No. 9.

Rule 8(A)(5)(a) of Administrative Order No. 9 provides that an
admonition may be imposed with the consent of the Respondent and the
approval of the Hearing Panel when there is little or no injury to a
client, the public, the legal system, or the profession, and where there is
little likelihood by repetition by the lawyer. The conduct in this case
meets these criteria.

Prior Vermont Cases

In both of the Vermont opinions cited above the sanction was
admonition. Here, as in those cases, there is no evidence of injury to the
public or intent to violate the advertising rules. In addition, this is a
case of first impression in Vermont under the present rule, Rule 7.1(c).

ABA Standards

Section 7.0 of the ABA Standards for Imposing Lawyer Sanctions
addresses the appropriate sanction for attorneys who violate "duties owed
as a professional," such as the duty to abide by the advertising rules.
Violation of these duties is considered less likely to cause injury to a
client, to the public, or to the administration of justice, and
accordingly, lesser sanctions are appropriate. ABA Standards, §7.0. Under
the ABA Standards, §7.4 "admonition is generally appropriate when a lawyer
engages in an isolated instance of negligence in determining whether the
lawyer's conduct violates a duty owed to the profession, and causes little
or no actual or potential injury to a client, the public, or the legal
system." There was no evidence of intent to violate the disciplinary
rules. There is no evidence of harm, and based upon Respondent's prompt
revision of the advertisement, there is little likelihood of further
violations.

Conclusion

For the reasons stated, the Panel APPROVES the imposition of an
ADMONITION by Disciplinary Counsel.

Dated: June 4, 2003
FILED: June 4, 2003

PRB HEARING PANEL NO. 1

/s/
__________________________
Barry E. Griffith, Esq. Chair

/s/
__________________________
Martha M. Smyrski, Esq.

/s/

__________________________
Stephen Anthony Carbine

---------------------------------------------------------------------------
Footnotes

FN1. It was suggested to the Hearing Panel that the subject advertisement
"might create an unjustified expectation about the results the law firm
could achieve." There is a significant difference between saying that a
given statement might be misleading, and establishing that the
communication is likely to mislead, which is the standard of Rule 7.1(b).

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