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In re PRB Docket No. 2002.0931/11/2005
ENTRY ORDER
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. 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 th
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