(concurring and dissenting).
I concur in the action taken by the Court in the main opinion, but take exception to those portions of Sections II, IV and V which rely upon the rationale that “dignity” provides an appropriate standard by which to regulate the commercial communications of attorneys. I do not agree with the suggestion in Part II that the interest of the State of Utah in “maintaining high standards of dignity” within the legal profession is the kind of “substantial interest” discussed in Matter of R— M. J— , - U.S. -, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). As Justice Oaks’ opinion notes, that decision does leave the door open for regulation of non-misleading communications where a substantial interest is shown and where the restrictions are so narrowly drawn as to be directly proportional to the interest served. However, although attorneys are officers of the court, and may be held by the courts themselves to certain standards in all of their relations with the courts, it is difficult to perceive how any interest of the public may be served by restrictions designed to enforce “dignity,” even assuming such restrictions could be properly drawn. Furthermore, while it is true that the Supreme Court has not specifically excluded “dignity” as a substantial state interest, its opinion in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), does not lend support to the proposition that such an interest will pass constitutional muster. The appellees in that case argued that an absolute advertising prohibition was needed to protect against “practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous,” and that “advertising is repugnant to the dignity of the profession. The ethics of the legal profession forbid that an attorney should advertise his talents or his skill, as a shopkeeper advertises his wares.” See Briefs and Appearances of Counsel, 53 L.Ed.2d 1261-1262. The following language in the Court’s opinion clearly suggests rejection of that “dignity” argument:
Moreover, the assertion that advertising will diminish the attorney’s reputation in the community is open to question. Bankers and engineers advertise, and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure to advertise creates public disillusionment with the profession. [Citations omitted.]
******
*998It appears that the ban on advertising originated as a rule of etiquette and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on “trade” as unseemly. Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. But habit and tradition are not in themselves an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow “above” trade has become an anachronism, the historial foundation for the advertising restraint has crumbled. [Citations omitted.]
433 U.S. 350, 369, 372, 97 S.Ct. 2691, 2701, 2703, 53 L.Ed.2d 810. It is true, of course, that the “dignity” argument was used in Bates in support of an overbroad, absolute ban on advertising. However, there is no language in Bates or later cases which suggests that the Court will have any more sympathy for dignity as a state interest even if the restrictions are narrowly drawn. In Ohralik v. Ohio State Bar, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), the Court pointed out that “... to the extent that the ethical standards of lawyers are linked to the service and protection of clients, they do further the goals of ‘true professionalism,’ ” thus implying the necessity of a direct relationship between any ethical restrictions and the needs of clients. It is difficult to articulate how clients or potential clients may be served by restrictions related to the subjective question of dignity in advertising.
Even assuming that the state may establish a legitimate and substantial interest in regulating advertising by a “dignity” standard, Matter of R— M. J— makes it clear that some kind of a factual record establishing the existence of abuse or potential abuse must exist and that any regulation must follow the least restrictive path necessary to prevent the harm. Once again, it appears unlikely that the question of “dignity” can be handled with the kind of narrow and clearly defined treatment which R— M. J— requires. There are many members of the profession who continue to believe that some of the practices specifically permitted in Bates and R— M. J— detract from the “dignity and professionalism” of those lawyers who undertake them, and from the public’s perception of the dignity of members of the Bar generally. In some instances, I share that view. It is unclear, then, how we may legitimately impose subjective standards for “dignity” in a fair, objective manner.1 In the notes to its proposed final draft of the Model Rules of Professional Conduct, the ABA’s Commission on Evaluation of Professional Standards commented as follows:
Rule 7.1 does not continue the requirement of DR 2 — 102(A) that communications about legal services be “dignified.” Whether a statement or its form is dignified is a matter of purely subjective judgment. Such a requirement serves no interest recognized by the Supreme Court as a legitimate basis for regulating advertising.
I agree with this analysis, and expect that those of us who would like to ensure that all of the communications of our professional colleagues comport with our own sense of “dignity” and “professionalism” are pursuing a chimeric and ultimately unconstitutional goal.
STEWART, J., concurs in the concurring and dissenting opinion of DURHAM, J.*999APPENDIX
PROPOSED CHANGES TO DISCIPLINARY RULES UNDER CANON 2 UTAH STATE BAR CODE OF PROFESSIONAL RESPONSIBILITY
DR 2-101: Publicity and Advertising.
(A) * A lawyer may advertise services through public communications media such as a professional announcement, telephone directory, legal directory, newspaper or other periodical, radio or television. A lawyer shall not make any false, fraudulent or misleading statement about the lawyer or the lawyer’s services to a client or prospective client. The foregoing shall be subject to the further provisions of this Rule 2-101 and the provisions of DR 2-102 through DR 2-105.
(B) A lawyer shall not use or participate in the use of any of the following forms of communication, by any medium of communication, for the purpose of advertising, publicizing, or promoting the services of the lawyer or of an affiliated lawyer:
(1) A statement which the lawyer knows or has reason to know
(a) contains a material misrepresentation of fact;
(b) omits to state aiiy material fact necessary to make the statement, in the light of all circumstances, not misleading;
(c) is either intended or likely to create an unjustified expectation;
(d) is either intended or is likely to convey the impression that the lawyer is in a position to influence improperly any court, tribunal, or other public body or official;
(e) is either intended or is likely to be deceptive in any other respect concerning the lawyer or the services described;
(f) contains statistical or other assertions concerning the past or the predicted rate of success of the lawyer whose services are advertised or promoted;
(g) contains a testimonial, endorsement, or other statement of opinion as to the quality of services of the lawyer or affiliated lawyer;
(h) makes any claim or self-laudatory statement concerning the absolute or relative quality of services of the lawyer or affiliated lawyer, which is either intended or likely to deceive or be misleading;
(i) contains material which seeks to attract clients by the use of garish or sensational format or language.
(2) A statement of fees for services which is intended or likely to be misleading.
(C) In addition to any other medium or form of communication which would be prohibited elsewhere in these Disciplinary Rules 2-101 through 2-105, either expressly or as applied, a lawyer, for the purpose of advertising, publicizing or promoting the services of the lawyer;_ shall not use or participate in the use of billboards, sound-trucks, flashing signs, flyers, circulars, promotional items such as matchbooks, telephone or address registry books, inscribed pencils or pens, and similar items. Permissible communications media are set forth in subparagraph (A) of this DR 2-101.
(D) A lawyer shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item. A paid advertisement must be identified as such unless it is apparent from the context that it is a paid advertisement. If the paid advertisement is communicated to the public by use of electronic broadcast media, a recording of the actual transmission in the form in which the advertisement is to be broadcast shall be first approved by the lawyer(s) authorizing it and a recording thereof retained by the lawyer(s).
(E) In addition to the further provisions of this DR 2-101 and the provisions of DR 2-102 through DR 2-105, fee advertisements and other publication of information as to fees, shall be subject to the following:
*1000(1) If a lawyer advertises a fee for a service, the lawyer must render that service for no more than the fee advertised.
(2) Unless otherwise specified in the advertisement if a lawyer publishes any fee information in a publication that is published more frequently than one time per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication. If a lawyer publishes any fee information in a publication that is published once a month or less frequently, he shall be bound by any representation made therein until the publication of the succeeding issue. If a lawyer publishes any fee information in a publication which has no fixed date for publication of a succeeding issue, the lawyer shall be bound by any representation made therein for a reasonable period of time after publication but in no event less than one year.
(3) Unless otherwise specified in the advertisement, if a lawyer broadcasts any fee information, the lawyer §hall be bound by any representation made therein for a period of not less than 30 days after such broadcast.
(F) A copy or record of an advertisement in its entirety shall be kept for one year after its dissemination.
(G) Every advertisement for legal services shall identify the name of the lawyer or law firm whose services are advertised.
(H) ** Except as permitted under DR 2-103 and 2-104, in-person, direct mail, and similar direct forms of contact with a prospective client by a lawyer for the purpose of soliciting business, are prohibited.
(I) Any form of communication by a lawyer referred to in this DR 2-101, by any medium of communication, for the purpose of advertising, publicizing, or promoting the services of a lawyer or of an affiliated lawyer shall comply with the limitations contained in paragraphs DR 2-101(A) and (B), as well as, where applicable, the provisions contained in DR 2-102 through DR 2-105.
DR 2-102: Professional Notices, Letterheads, and Offices.
(A) A lawyer or law firm shall not use or participate in the use of professional cards, professional announcement cards, office signs, letterheads, firm name, or other professional designation, notice or device that violates the provisions of DR 2-101(A) and (B), the provisions of this Rule or DR 2-105.
(B) *** through (F) [unchanged]
DR 2-103: Recommendation of Professional Employment.
(A) [unchanged in substance]
(B) through (E) [unchanged]
DR 2-104: Suggestion of Need of Legal Services.
[unchanged]
DR 2 — 105: Limitation of Practice.
(A) A lawyer may communicate the fact that the lawyer will accept employment in specified areas of practice. A lawyer whose practice is limited to specified areas of practice may communicate that fact. A lawyer shall not hold himself out publicly as a specialist and shall not indicate any certification or designation as a specialist, except as follows:
(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation; and
(2) In accordance with any plan regulating lawyer specialization approved and promulgated by the Utah Supreme Court.
DR 2-106: Fees for Legal Services,
[unchanged]
. The majority opinion cites Bishop v. Committee on Professional Ethics, Etc., 521 F.Supp. 1219 (1981), which discusses this issue briefly. Without analysis, the Iowa Federal District Court, in that case, dismissed a constitutional challenge for vagueness to a “dignified” standard in the Iowa rules by observing: “A lawyer should have little difficulty distinguishing a dignified advertisement from one that is undignified.” This “I know it when I see it” approach has as many pitfalls in the area of regulation of attorney advertising as have been exposed in connection with other kinds of regulation.
See opinion for changes to this section.
“Direct mail” deleted from this section. See opinion.
See opinion for comments on this section.