### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE January 3, 2001 S ession

TED F. WALKER v. THE BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Appeal from the Chancery Court for Ham ilton County No. 98-0504 Jeffrey F. Stewart, Chancellor

No. E1999-002338-SC -R3-BP - File d February 20, 2

001

The Code of Professional Responsibility requires attorneys who adve rtise with regard to any area of law but who are not

certified in that area to include the following disclaimer in thei

r advertisements : “Not certified as a

(area of practice) specialist by the Tennesse e 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) y et he specifically mentioned divorce law in certain ads, and in another ad he did not adhere to the exact wording of the required dis claimer. The Board of Pro fessional Respons

ibility broug

ht a disciplinary

action against th e 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 U nited States Constitu tion. We hold that this disclosure ruleis constitutional an d that the private

reprimand may stand. We therefore affirm the Chancery Court. We also affi

rm the Chancery

Court’s holding th

at the appellant ma

y be held responsible for the costs of this disciplinary action.

Tenn. S. Ct. R. 9 Direct Appeal; Judgment of the Chancery

Court Affir

med; Cas

e Remand

ed to the Bo

ard of Professional Responsibility for Assessment of Costs

F RANK F. D ROWOTA , III, J., delivered the opinion of the court, in which, E. Riley Anderson, C.J., Adolpho A. Birch, Jr., Janice M. Holder, and W ILLI AM M. B ARKER , JJ. joined.

Charles P. Dupree, Chattanooga, Tennessee, for the appellant, Ted F. Walker.

Je sse D . Joseph and Stacy Eugenia Gibson, Nashville, Tennessee, for the appellee, The Board of Professional Responsibility of the Supreme Court of Tennessee.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.

-2- OPINION Ted F. Walker (Walker), theplaintiff/appellant, is an attorney who maintains a divorce law practice in Nashville, Memphis, and Chattanooga. His practice focuses on uncontested div orces in which both parties agree to a settlement. Walker is not certified as a specialist in civil trial practice (which included divorcelaw) 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

en hance both the skills of attorn eys license

d in Tennessee an

d “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 Wa

lker has adverti

sed his services by placing short ads in local newsp

apers. The Board of Professional Responsibility of the Supreme Court of Tenn essee ( Board), the defendant/appellee, became aware of these ads, believed they violate d provisions of the Code of Professional Responsibility, and filed two petitions for discipline against Walker. Walker cl aims
t hat th e 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 desc

ribe the factua

l and procedura

l history lea

ding up to this appe

al.

PROCEDURAL HI

STORY First Petition In February 1995, Walker placed an advertisement

for divorce services in the Chattanoo ga News Free Press TV Magazine . The ad was published over the week of February 12 through 18, 1995 and states in it

s entirety: “

DIVORCE, BOT

H PARTIES SI

GN, $125 + COST, NO E XTRA CHARGES, Ted Walker , [address & telephone number].” On March 29, 1995, the Board’s Disciplinary

Counsel filed a co

mplaint 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 Re

sponsibility. T

his rule provides: A lawyer who publishes or broadcasts a communication with rega rd 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 Ten n essee Commission on Continuing Legal Education and Specializati on in an advertised ar ea in which cert

ification is avail

able, 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) (e

mphasis added). I

n his response to the

complaint, Walker a

rgued that h

i s 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
t he United States Supreme Court, is governing over a conflicting law by the Tennes see Suprem e-3-

Cour t.” After an exchange of correspondence with the Disciplinary Counsel, Walker ap parentl y 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 Walke r 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 for mal proceeding be initiated pursuant to Rule 9 (“Disciplinary Enforc ement”) of the Sup reme 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 disciplinar

y 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 pertainin

g to two advertis

ements 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’ Charge

s, 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 s imilar but did not contain the “not certified”
statement. The Board’s supplemental petition alleged that the ad in the Chattanooga TV Guide did
notuse “the precise language required by the Tennessee Sup

reme Court in quota

tion 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 supp lemental petition a

lso alleged that the advertise

ment in the Business D irectory Section “include[d] no mandatory disclosure of specialty certification wha tsoever, as is required under DR 2-101(C)(3).” The petition further alleged that Walker did not co mply with DR 2-101(F) (pertaining to filing copies of adver tisements within three day

s of their publica

tion) as to either o

f 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 parti es conducted a conference call to discuss a possible settlement. Based on an agreement

reached duri ng t hat conference call, the Hearing Committe e entered an “a

greed judgme

nt”

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 a s set forth in both Petitions f or Discipline, inasmuch as respondent has violated DR 2-101(C)(3) & (F), w hic h also results in a violation of DR 1-102(A)(1) o f the Code of Professional Respons ibi lit y. Respondent failed to properly state in such ads his lack o f certificationas a civil trial specialist by the Tenne sse e Commission on Continuing Legal Education and Specialization, andhe failed to deliver to the Board a copy of such advertising within 3 days after its initial publication.-4-

The agreed judgment also provided that Walker would have the right to appeal the judgment “to attack the co nsti tutionality 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 sha ll 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 s

tates: In the event that a judgment of disbarment, suspension, public cens ure, priv ate reprimand, temporary

suspension, disabil

ity inactive

status, reinstate

ment, or denial of reinstatement results from formal proceedings, the Board shall assess against the resp ondent

attorney the costs of the proceedings . . . the expenses of the hea rin g 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 judg ment. 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 didnot accurately reflect the parties’ ag reement. 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 J uly 7, 19 99 the Chancellor denied the petition, thereby affirming the Hear ing Committee’s judgment. Walker then filed his notice of appeal with the Court of Appeals. Pursuant
to Rule 17 of the Tenn

essee Rules of App

ellate Procedur

e and Rule 9 sectio

n 1.3 of the Supreme CourtRules, the Court of Appeals properly transferred Walker’s appea l 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 ac tion.

ANALYS IS Standard of Review This case requires us to evaluate the con stitutionalit y 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 S t ates Supreme Cour t has accorded F

irst 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 advertisi ng. The Court has given sub stance t o the Bates holding through a series of attorney advertising commercial spee ch cases over th

e past qua rte r cen tur y. See generally Mason v. Florida Bar
, 208 F.3d 952 (11th Cir. 2000) (a recen t court of appeal

s case discussing this bod

y of Supreme Courtcase

law); Ficker v. Curran , 119 F.3d 1150 (4th Cir. 1997) (same). In the most recent attorney-5-

advertising case the Court sta ted, “It is now well established that lawyer advertising is commercial speech, and as su

ch, 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 protecti

on, and how to apply

that l evel of protection when evaluating the constitutionality of DR 2-101(C)(3).

We have ne ver before addressed lawyer adver tising, but we have squarely addressed a similar regulationof another profe ssion. In Do uglas 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 of

fer 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 reg ulation before it involved advert ising by Cer

tified Public Acco

untants (C PAs) and Certified Financial Planners. See also Edenfield v. Fane , 507 U.S. 761, 113 S. Ct. 17 92, 123 L. Ed. 2d 543 (1993) (invo lving the regulation of CPAs). Our opinion in Douglas also relied heavily on attor ne y 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 o f pr ofessions” commercial speech case after Douglas , we find that cas e to b e hi ghly r ele van t au tho rit y.

The validity

of co mmercial 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. Publi

c 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 (d iscussing Central Hudson ). The test is as fo llows: 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 gove

rnment interest i s substantial. If both inquiries yield positive
answers, we m ust det erm ine whe the r th e reg ula tio n di rect ly a dvances the governme nt interest asserted, and wh

ether it is not more extensive

than is necessar

y to serve that interest.

Central Hudson , 447 U.S. at 566, 100 S. Ct. at 2351. This test is used to analyze t he validity of regulations that prohibit or limit commercial speech. See, e.g. , Greater NewOrleans Broad. Ass’n, Inc. v. United States , 527 U.S. 1 73, 119 S. Ct. 1923, 144 L. Ed. 2d 1 61 (1999) (s triking down a federal regulation prohibiting broadca st advertisements of private casino gambling where such gambling was legal); Florida Bar , 515 U.S. 618, 115 S. Ct. 2371 (upholding a Florida regulation proh ibiting tar gete d di rect -ma il s oli cit ati on o f acc ide nt v ict ims and the ir r ela tiv es f or t hir ty da ys following an accident); 44 Liquormart, Inc. v. Rhode Island
, 517 U.S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996) (str

iking down a Rhode

Island prohib

ition on advertise

ments that provided
accurate information about

the retail price

s of alcoholic bev

erages); Ibanez
, 512 U.S. 136, 114 S.Ct. 2084 (revers ing the Florida Boa rd of Accountanc

y’s reprima

nd of an attorney

who truthfully advertised

that she was a CPA and a Certified Financial Planner); Peel v. Attorney Registration and-6-

Disciplinary

Comm’n , 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (19

90) (reversing

the Illinois Supreme Court’s censure of an attorney whose professional letterhea d truthfully

advertised that he was certified as a civil trial specialist by a national organization).

The regulation bef

ore us requires t

hat whenever a l

awyer adv

ertise s his serv ices in a particular area of law for which certification is available in Tennessee, he must di sc lose in the ad whether he is certified. D

R 2-101(C). Si

n ce Walker was not

certified as a c

ivil trial speciali

st (which then covered the area of divorce law) y et he specifically

mentioned divorce

law in his ads, the disciplinary rule mandates that his ads include the following languag e: “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 r

equires disclosur

e rather than pr

ohibition tends to mak

e it less objectionable

under the First Amendment. Recognizing that the “ba r retains the power to correct omissions that have the eff ect of presentin

g an inaccura

te picture,” the Cou

rt in Bates specifically noted that “the preferred remedy is more disclosure, rathe r 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 th

e extent that potenti

ally misleading statements o

f priva te certificatio

n or specialization

could confuse co

nsumers, a State might consider screening certifying org anizations or requiring a disclaimer abou t the ce rtifying organization or the standards of a sp ecialty .”) (emphasis added). In Douglas we a ddre ssed the distinction between prohibition and disclosure. We discussed Zauderer v. Office of the Disciplinary Counsel
, 471 U.S. 62 6, 105 S. C t. 2265, 85 L. Ed 2d 652 (1985), in which the United States Supreme Court struck

down an Ohio regulation prohibiting the us

e of illustrations in

attorney a

ds, butupheld that state’s regulation requiri ng 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 anal ysis in Zaud erer was more forgiving of disclosure-type

regulati ons and we quoted f rom that decision a

t length, parts of

which we again recite: Appellant, however, over l ooks material differences between disclosure requirements

and outright prohi bi tions on speech. . . . Ohio has not attemp

ted to prevent attorneys from

conveying

information to the p

ublic; it has only required them
to provide somewhat more information than they might othe rwise be inclined to present. . . . Because the extension of First Am e ndment protection to commercial speechis justifi ed princ ipally by the value to consumers of the information such speechprovides, appella

nt’s constitutional

ly protecte

d interest in not providing any particular factual information in his advertising is minimal.

* * *

We do notsuggest that disclosure requirements do n

ot implicate the ad

vertiser’s Firs

t Amendment

rights at all. We r

ecognize that un

ju sti fied or unduly

burdensome di sclosure requirements might offend the First Amendment by chilling protect e d-7-

commercial speech. But we hold that an adv ertiser’s rights are

adequately protected as long as disclosure

requirements are

reasonably relate

d to the State’s intere

st in preventing deception of cons umers

. 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 ques tion was whether the U nited States Suprem

e Court repudiate

d this disclosure analysis in Ibanez

. The petitioner in Douglas pointed to language in Ibanezto support that contention, but we held that Ibanezshould be interp reted to harmonize rather than conflict with Zauderer

. We therefore held t ha t the disclosure requirement in Ibanezwas “unduly burdensome” under the Zauderer

standard – as opposed to some newly announced constitutional standard. More important, we discerned tha t Ibanez ’s central holdin

g was that the sta

te had failed to

offer sufficient proof justifying its regulation. See Douglas , 921 S.W.2d at 188 (“[I]t appears that the Court ma

y h ave sim ply concluded that Ibanezwas ‘not a disclai mer case,’ and t

herefore focu

ssed [sic] its attention on the lack of

proof in the record.”). Thus, under current law – as announced in Zauderer

–as long as t

he disclosure requirement is reasonably related to the state’s interest in preventing deception of consumers, an d not unduly bu

rdensome, it should

be upheld. Recen

t cases have also applied the less rigorou

s Zauderer

standard when co

nfronted 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 re lated to p reventing the public from being deceived or misled.”); Commodity Futu res Trading Comm’n v. Vartuli , 228 F.3d 94, 108 (2d Cir. 2000); Consolidated Cigar Corp. v. Rei lly , 218 F.3d 30, 54 (1st Cir. 2000). Of course, the st ate must alw ays meet its burden of justifying the need for regulation in the first place. See Ibanez , 512 U.S.
at 146-47, 114 S. Ct . a t 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 Bo ard argues tha

t Tennessee’s int

erest in requirin

g non-certifie

d attorneys

who adverti s e spe cialty 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 th

eir legal needs. We agree that th is interest is substa

ntial. As one court has put it, “the state, as part of its duty to regulate attorney s, 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 (“Inform atio n about certification and specialties facilitates the consumer’s access to legal services and thus better serves theadministration 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 pro

tect the public he

alth, safety

, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professi ons.”) (quo ting Goldfarb v. Virginia State Bar
, 421 U.S. 773, 792, 95 S. Ct. 2004, 2016, 44 L. Ed. 2d. 572 (1975)).2 The Commission conducted a survey compari

ng the number o

f continuing le

gal education h

ours

earne d per year by attorneys w ho advertised (

Advertisers) w

ith display ads

in the yellow pages to hours earned by attorneys recognized a s leading practitioners (LPs) in four areas of law: b ankruptcy, criminal defense, domestic relations, and personal injury. See Commission
, supra , at 13-14. The results were as follows: (1) in bankru

ptcy the LPs avera

ged 14.6 hour

s and the Adve

rtisers average

d 4.1 hours; (

2) in criminal defense the LPs averages 19.6 hours and the Advertisers averaged 2.2 hour s; ( 3) in domestic relations the LPs averaged 8.7 hours and the Advertisers avera ged 1.9 hours; and (4) in personal injury the LPs averaged 16.2 hours and the Adve rtisers averaged 6 hours. Id.

3 The Supreme C

ourt Rules req

uire that “[a]t

a minimum, any certification standards established by the Commissionmust provide a reasonable basis for the determination that th e lawyer possesses special competence in a particular field of law . . .” S. Ct. R. 21 § 10.03. Section 10.03 sets forth in gen eral terms the requirements that certification programs m ust meet before they are recognized by the Commission. These r equi rements ensure that attorneys who are certified have demonstrate d sufficient experience, knowledge, and practice management skills, that they h ave good re

commendations from other attorneys, judges, and clients, and that they be re-certified at least every six years. Id.

-8- 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 (quoti ng Zauderer
, 471 U.S . at 650-51, 105 S. Ct. at 2281-82). The record before this Court when the certifi catio n 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 specialti es were actually obtaining far fewer Continuing Legal Education hours of training than leading practitioners in that specialty area who were not ad vertising. See Commission on Continuing L egal E d ucation, Attorney Specialization in Tennessee 5 (1992) ( reprinted in In re Petition t

o Amend Supreme Cou

rt Ru les 8 an d 21 , No. 01S01-9304-OT-00066 (filedFeb. 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 Pu

b lic Perceives a Sp

ecialist (1990)). The Commission thought the public would be better served if presented with a more accurate picture of an advertising lawy er’s level of education.

The disclaimer rule the Commission advocated and this Court ultimately adopted promotes the Commission’s leg

itimate goal by cl

early and s

uccinctly p

roviding the publ

ic with information about the certificati

on status of attorn

eys who adv

ertise their services. This information wi ll help

a consumer identify which lawyer s may have more experience and education in a particular

area of law 3 – knowledge whic

h will help that consumer hire a lawy

er to represent

his interests. It is not contended, of course, that th e disclaimer rule

by itself provides all the useful info rmation the public might wish to obtain; indeed, many attorneys advertise, and c onsumers will still have to make choices among attorneys with a similar certification st

atus. But the information required by DR 2- 101(C)(3) is one piece of inf ormation that will a

ssist consu

mers in making those choices. The required disclaimer is ther

efore reasona

bly related to promoti

ng the substantia

l interest of helping

consumers to make informed judgments about which attorneys t

hey should e

ntrust with their

legal needs.-9-

Next, we must determine

whether DR 2-101(

C)(3) is unduly

burdensome. The United States Supreme Court in Ibanezconfronted a Florida Board of Accountancy rule that required a Certified Financial Planner who included a specialist designa tion on an advertisement to disclose, among other things, the requirements for recognition of the agency that certified her as a spec ialist. Ibanez , 512 U.S. at 146, 114 S. Ct. at 2090. Although the Court concluded that the disclosure requirement was unconstitutional because the Flo rida Board had f

ailed to justify

the need for suc

h regulation, it a

lso noted that the disclosure requirement was too burdensome: “The detail required in the disclaimer currently described b y the Board effectively rules out notation of the ‘specialist’ designation on a business card or letterh

ead, 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 fol

lowing langua

ge: “Not certified as a ( area of practice) specialist by the Tennessee Commission on Continuing Leg al Education and Specialization.” This statement does not require an attorney who advertises hi

s 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.

Final ly, Walker argues that even if the disclosure rule is constitutional, the State can no t require him to use the precise language listed in DR 2-101(C)(3). He argues that any statement that

con veys 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 Tennesse e 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 t his argu men t di rect ly, butwe first note that

Walker receive

d one of the lighte

r sanctions, a pri

vate 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) sup po rts 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 adve rtised his skills in the area of “real estate” instead of the required “property,” and he listed his ski

lls 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 coul d not have been mislead ing, we think that deviations from the

specific wording of DR

2-101(C)(3) could lead to public confusion. The required disclaimer state

ment was worded in

the most simple, dire

ct fashion so that th

e public would have no difficulty understanding its meaning or comparing different

attorney a

dvertisements. Th

is goal might easily be thwarted if attorney s were allowed to write their own d isclaimer s tatements. 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 wa s different than

another’s.-10-

The Board’s interest i n requirin g uniform la nguage is significant for another reason. Just as the absence of unifo rmit y would require a consumer to compare many different disclaimer
statements , so wo uld the Board, and subsequently the courts, be forced to examine advertisement after advertisement in a

n effort to determine which attorneys substantially complied with DR 2- 101(C)(3) and which attorne ys fell somew

hat short. This cost

ly and ineff

icient task seems e

ntirely 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 exac t language in DR 2-101(C)(3) we note what the United States Supre me Court stated in Zauderer . Responding to the appellant’s argum ent th at 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 a

dvertisement ment

ioning a conting

ent fee is

. . . unfortunate.” Zauderer , 471 U.S. at 653 n.15, 105 S. Ct. at 2283 (suggesting

that Ohio’s failur

e to

articulate the requirements of its disclosure rule would prohibit disbarment of an attorney who violated the rule on due process and First Amendment gro unds). In co ntrast, DR 2-101(C )(3) is perf ect ly cl ear, and tha t cl ari ty bu ttr ess es r ath er t han und erm ine s it s co nst itu tio nal ity.

The Imposition

of Costs Having held that DR 1-201( C)(3) is constitutio

nal, it is clear tha

t the Board’s s anction agains t Walker is justified. Therefore, ac cording to Tenne

ssee Supreme Cour

t Rule 9, Walker is re

sponsible for the costs of the proceeding. See S. Ct. R. 9 § 24.3 (“[ T]he Bo ard shall asse ss against the respondent

attorney th

e costs of t he 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 mat ter.”). Walker ma intains, however

, that the circumst

ances of the pro

ceedings aga

inst h i m warrant that he be a

bsolved from ha ving 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. B ecause h e had not e

xplicitly agreed to pay c osts, Wa lker asserts that the agreed judgment does not

accurately

reflect the par

ties’ agreeme

nt.

The Board

responds that the Assistant Dis cip lin ary C oun sel for ward ed W alk er’s att orn ey a copy of the proposed or der which included the cost p rovisions discusse

d above on two sepa

rate occasions,and that W alker’s attorney f ailed to respond. We

need not resolve

this dispute of fac

t, however, because the application of the rule does not depend upon whether the attorney subject to discipline received perso

nal notice of its co

ntents. Rather, the

rulestates 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 requ

ires the imposition o

f costs in all discip

linary cas es, is published as part of the “Disciplinary

Enforcement” se

ction of the Suprem

e 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.-11-

Prior to this appeal the Board assessed costs against Walker in the amount of $2,096.90. We remandthis case back to the Board to determine the final costs for which W alker is responsible, including the pro

ceedings befo

re 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 co

nstitutional and tha

t Walker is require

d to pay for the costs of this disciplinary action under Supreme C ourt 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