1982 Supreme Court case overturned restrictive lawyer advertising rules
By Heather Cole
The Daily Record Newswire
ST. LOUIS, MO — Richard M. Jacobs helped make it possible for lawyers nationally to advertise the way they wanted to. He put his law license at risk to do it.
But while the St. Louis-area lawyer’s rebellious streak created a case that soared to U.S. Supreme Court success, that same streak also forced his legal career into a nose dive. He lost his law license for reasons unrelated to the advertising case less than three years after his 1982 high court victory.
Jacobs appears to have died early this month: An obituary notice for a St. Louis man who has the same first and last names and middle initial recently was published in the St. Louis Jewish Light and St. Louis Post-Dispatch.
The 76-word obituary indicated Richard Mark Jacobs was 72 when he died June 7. It listed family members and directed memorial donations to the Massachusetts-based Harold Grinspoon Foundation, which donates to Jewish educational programs.
It did not say that Jacobs was the R.M.J. in In re R.M.J., the case that in 1982 overturned the restrictive lawyer advertising rules imposed by the Missouri Supreme Court and that expanded attorney advertising rights nationally. But listed survivors’ names indicate he was.
The Missouri Supreme Court had decided the advertising discipline case would bear only R.M.J.’s initials, but a 1981 American Bar Association Journal article said “R.M.J.” stood for Richard Jacobs. Several lawyers involved in the case confirmed the name.
Alan Howard, an attorney in the R.M.J. case, said Diane Jacobs Kopp was the sister of the Richard Jacobs in the case. The obituary doesn’t mention the names of any siblings, but it lists Jacobs’ sons as Robert and Daniel. A 2007 obituary in the Jewish Light for Sydney Alden Jacobs, the father of Kopp and Richard Jacobs, lists grandchildren named Rob and Danny.
Jacobs’ birthdate in the obituary was listed as March 27, 1943. That’s inconsistent, however, with a birth year listed in some records connected to Richard M. Jacobs: 1945.
Kopp did not return a phone call to her office by press time. Daniel Jacobs could not be reached. Robert Jacobs refused to say whether his father was R.M.J., citing what he said his father’s wishes would have been and saying that it wouldn’t be helpful in the immediate aftermath of his death. He might be willing to talk about his father in a few years, Robert Jacobs said.
‘A fighter’
The Richard Jacobs of the R.M.J. case didn’t place himself in the limelight. Howard said he wasn’t sure Jacobs attended the U.S. Supreme Court arguments where Charles B. Blackmar argued for him. Howard didn’t remember Jacobs joining his lawyers at the celebratory lunch afterward.
“I actually never ever met Richard,” though he became friends with his sister, said Howard, a Saint Louis University School of Law professor emeritus with a First Amendment focus.
Jacobs was fighting other battles the year the U.S. Supreme Court heard arguments in the advertising case. He faced two criminal charges in 1981, according to a 1990 Missouri Supreme Court opinion on the former lawyer. In December 1984, Jacobs surrendered his license as part of a plea agreement on the charges, which prosecutors then dropped. The nature of the charges couldn’t be determined.
Roy D. Simon, then a professor at Washington University School of Law, represented Jacobs as he tried to get back the right to practice law.
Jacobs was “a fighter,” Simon said. Simon is professor emeritus of legal ethics at New York state-based Hofstra University’s Maurice A. Deane School of Law.
“He fought for his rights as he saw them, and sometimes he won,” Simon said in an email. “His victory in … In re R.M.J., was one of the major turning points in the history of lawyer advertising in this country. The case established a lot of rights for lawyers that have not been seriously questioned since then.”
‘License on the line’
A 1977 U.S. Supreme Court ruling in Bates v. State Bar of Arizona said that yes, indeed, lawyers had a First Amendment right to advertise. But advertising outside what was allowed by the Missouri Supreme Court attorney ethics rules in 1978 required more than the normal allotment of nerve.
The state’s ethics rules banned lawyer advertising before the Bates ruling. But Bates hadn’t addressed direct mailing, and 30 states, including Missouri, still used the ABA-recommended “laundry list” approach of limiting the terms lawyers could use to describe their practice, according to the 1981 ABA Journal article.
In Missouri, the committee charged with establishing post-Bates rules for advertising operated under the assumption that disciplinary authorities’ permission still was required, Charles B. Blackmar said in a 1982 Missouri Law Review article. (Blackmar, who argued for Jacobs in the Missouri and U.S. supreme courts, was appointed a state high court judge shortly before the article was published. He died in 2007.)
In addition to the “laundry list,” the rule change approved by the high court said attorneys couldn’t send direct mail to strangers and couldn’t advertise on electronic media.
An attorney who sought a declaratory judgment that he had a constitutional right to advertise that he practiced “Social Security Disability Law” was rebuffed by a Jackson County Circuit Court judge. The judge found “there was no actual controversy until the advertisement had been published,” according to Blackmar’s article.
“The court’s holding meant that a lawyer could not obtain a test of the rule except by putting his license on the line,” Blackmar wrote.
A ‘test case’
Jacobs, who graduated law school in 1973 and spent “a short stint with the Securities and Exchange Commission,” according to the U.S. Supreme Court opinion, became the attorney to force that test. (The name of his law school isn’t included in either of the high courts’ opinions).
He did it by mailing announcements and placing advertisements in newspapers and a phone directory about the solo St. Louis office he opened in 1977.
In November 1979, an ethics advisory committee filed a discipline document called an “information” in the Missouri Supreme Court that said Jacobs violated ethics rules. Among other things, he diverged from approved terms, listed the jurisdictions in which he was admitted to practice — including the U.S. Supreme Court — and sent direct mail announcements to people he didn’t know.
The Missouri Supreme Court a little over a year later voted 5-2 to issue a private reprimand against Jacobs.
“We are aware, of course, that this is a ‘test’ case and that respondent’s violation of Missouri’s Code of Professional Responsibility is minimal,” then-Judge Robert Donnelly wrote for the majority.
The Missouri rule was intended to ensure that lawyers never used false or misleading advertisements, as prohibited by the U.S. Supreme Court, Howard said.
Jacobs essentially said that those approved terms were more confusing and arguably deceptive, Howard said. For example, lawyers were required to refer to one practice as “tort law.” How would you expect someone who’s not legally trained to understand what a tort lawyer is?
“Personal injury — now that they understand,” Howard said.
The U.S. Supreme Court agreed with Jacobs in January 1982, unanimously finding the Missouri rules were too restrictive. States can regulate commercial speech, but the First and 14th amendments require they do it carefully and no more than necessary, said the opinion written by Justice Lewis F. Powell Jr.
“The absolute prohibition on appellant’s speech, in the absence of a finding that his speech was misleading, does not meet these requirements,” the opinion said.
The ruling tossed out the ABA’s laundry-list approach to acceptable terms. It also used for the first time in a lawyer advertising case the four-part test a court must use to decide whether advertising regulations violate commercial free speech, Howard said.
The U.S. Supreme Court established the test in a 1980 opinion in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. Under the ruling, a court must decide if the speech is about a legal activity and isn’t misleading and whether the restrictions directly advance a “substantial” state interest and aren’t unnecessarily broad.
‘Rebellious by nature’
While Howard didn’t meet Jacobs, he heard about him from other people, he said. They said he was “rebellious by nature,” Howard said. Jacobs was not the type to submit to authority, but would do what he thought was right, and take his chances.
“In this case, it turns out he was correct,” Howard said of In re R.M.J. “A unanimous Supreme Court concluded he was correct.”
But the personality that allowed Jacobs to test advertising restrictions hurt him in a separate Missouri Supreme Court case that ended with the surrender of his license.
After prosecutors criminally charged Jacobs in 1981, his defense attorneys referred him to a psychiatrist for evaluation. He had his first of six meetings with her in April 1982, three months after the U.S. Supreme Court ruling in R.M.J., according to a chronology of events in the 1990 Missouri Supreme Court opinion.
Psychiatrist Dr. Maria Manion reported Jacobs tried to dictate the rules of the interview and was “controlling and defensive.” Though she said she didn’t have enough information for a definite diagnosis, Manion found he fit the “category known as narcissistic personality disorder.” Based on her report, Jacobs’ criminal defense attorneys negotiated an agreement that he would surrender his law license in exchange for dismissal of the felony charges.
But Jacobs was reluctant to add the report to his motion to surrender his license. Instead, he included his own psychologist’s report that said Jacobs was “suffering from an acute stress reaction arising from an adversarial relationship with the Missouri Bar Administration.” After finding out the license surrender was supposed to be connected to a plea agreement, the high court overruled it.
The court eventually accepted a second surrender motion that included Manion’s report, suspending Jacobs’ license “for medical reasons based on mental infirmity,” according to the opinion in In re Jacobs. Jacobs gave up his license Dec. 4, 1984. Sixteen days later, he filed a motion to reinstate it, the first of four attempts over four years.
The last attempt in August 1988 led to the appointment of a special master, who not only recommended that Jacobs’ license not be reinstated, but that disbarment proceedings start immediately.
Though Jacobs said in a motion to surrender his license that he suffered from a disabling mental or physical condition, evidence in the case showed that Jacobs didn’t believe it, according to the opinion.
He denied in his second motion that the surrender was part of an agreement to avoid criminal prosecution. The case also had evidence that Jacobs continued to practice while his license was suspended.
“While such evidence may form the basis of some future disbarment proceeding, it is not the basis for denying reinstatement,” the opinion said. “In this proceeding the conduct is noted only as a further demonstration of the accuracy of Dr. Manion’s observations regarding movant’s personality disorder.”
The seven judges, including a special judge, agreed to the opinion. Blackmar, who had been Jacobs’ attorney in the advertising case, sat out the reinstatement case.
The Missouri Supreme Court disbarred Jacobs by November 1994, according to online federal court records. The next month, the U.S. Supreme Court, which had given Jacobs a legacy victory that said he had a right to advertise his admission to practice there, suspended his practice in that high court.
