Recent Development by W. Thier
Gary E. Peel, an attorney practicing in Illinois, was certified as a civil trial specialist by the National Board of Trial Advocacy (NBTA) in 1981. In 1983, he changed his professional letterhead to reflect the certification. In 1987, the Administrator of the Attorney Registration and Disciplinary Commission of Illinois filed a complaint, alleging that Peel's use of the NBTA certification in the letterhead was in violation of Disciplinary Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility. Rule 2-105(a)(3) prohibited lawyers from designating themselves as certified legal specialists. The complaint also alleged that the use of the certification in the letterhead was misleading or deceptive, which was a violation of Disciplinary Rule 2-101(b). Peel asserted that his use of the certification on the letterhead was protected as commercial speech under the first amendment of the United States Constitution. The Commission rejected the claim and recommended censure for violation of Rule 2-105(a)(3). The Illinois Supreme Court accepted the recommendation, holding that the first amendment did not protect the use of the certification on the letterhead. The court found that the letterhead was misleading in three ways: it implied superiority in the quality of the attorney; the general public might believe that attorneys were licensed by the NBTA rather than the state; and the letterhead implied that the State of Illinois authorized the certification. In a plurality decision, the United States Supreme Court reversed; and held that Rule 2-105(a)(3), as applied, violated the first amendment because the letterhead was not actually misleading and the “possibility of deception . . . was not sufficient to rebut the constitutional presumption favoring disclosure over concealment.” Peel v. Attorney Registration & Disciplinary Commission, 110 S.Ct. 2281 (1990).
About the Author
W. Thier.
Citation
65 Tul. L. Rev. 687 (1991)