The Law Protects Us From Professionals Who Mislead The Public
Submitted February, 2004
Attorneys, accountants, dentists and physicians, like others who sell services to the public often seem to have an inflated opinion of themselves and their services. Sales "puffery" or "puffing" has been part of the market place since the beginning of time and is not outlawed. Advertising that as a matter of fact the professional has skills or credentials which are not in fact present, on the other hand, is not an exaggerated opinion, but in most communities a violation of the jurisdictions "truth in advertising" laws. This note analyzes a very recent federal case which does a remarkable job of summarizing the subject as to professional advertisers. The factual setting was straight forward. California specifically enacted legislation to prevent physicians who had been "board certified" in their specialties by "bogus boards", that is organizations which failed to properly test and credential members. One such entity asserted the statute violated their rights to free, albeit, commercial, speech.
At first blush, American Academy of Pain Management (infra) may not seem like a landmark decision but perusal reveals the most articulate analysis and summary to date of the Law of Specialization Regulation.
The court did its' own best summary. "The State of California, in regulating the advertising of the (medical) profession, sought to give a consistent meaning to the term 'board certified'- -. Such consistent usage informs the medical community and the general public that - -(those) advertising that they are "board certified" have met a certain standard- - (They) are not precluded from advertising that they limit their practice to certain fields or that they are members of, or have had special education from, nonqualified boards or associations. The screening process adopted by California is constitutional."
The ninth circuit's decision in American Academy of Pain Management v Joseph DC No CV-96-02108-LKK, 2004 DJDAR75 was decided January 2, 2004. The court affirmed the district court's finding that the state's limitation of professional use of the term "board certified" in advertising was constitutionally implemented by the appropriate regulatory board. The state permits professional ads which say that practice is limited to certain fields but use of the term "board certified" is restricted to organizations who qualify with state standards.  The restrictive statutes were part of "truth in advertising" legislation based on evidence that for every legitimate, nationally recognized medical specialty board, there were four "self-designated boards" requiring only applications and fees for certification.
The plaintiff organization seeking to enjoin statutory application had failed to qualify for the state's equivalency (to national standards) requirements for examinations, postgraduate training et. al. The court noted that the vast majority of its members were "grandfathered" with no examination at all. Plaintiff's broadside arguments relied on the First amendment's guarantee of free speech and association, that the regulatory enactment was "over broad" as well as denial of due process. Plaintiff's principal argument was that the district court misapplied standards for permissible regulation of commercial speech as defined in Central Hudson Gas & Elec. Corp v Pub. Serv. Comm'n. 447 U.S. 557 (1980). The Ninth Circuit found that the elements of advertising a specific product for economic purposes met the standard since the advertiser was soliciting patients which was analogous to regulation of lawyer's advertisements in In re RMJ 455 U.S. 191, 194 (1982).
The court then applied the judicial analysis required to determine whether or not particular commercial speech is entitled to constitutional protection. In order to secure protection the ad must concern a lawful activity and not be misleading. When "advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive" the analysis ends and government may ban it whereas if only "potentially misleading" the regulation has to satisfy other constitutional safeguards to pass muster.  The court noted that California had followed the Peel statutory screening "suggestion" not mere medical board discretion. 
The District Court's holding, after its in depth analysis, was concise: "Plaintiff's Use of "board certified" is inherently misleading, it is not protected speech." The court need not have gone further but continued its analysis as if professional misuse of the designation was only potentially misleading.  The court's dicta relied on the legislative history of the statute citing the fact that: "Doctors who advertise as "board certified" can have authentic credentials, or they may claim credentials from a "bogus board," and the unsuspecting consumer would have a very difficult time differentiating one from the other. A "bogus board" credential can be obtained by mail for a fee, or by taking a weekend course in the subject,"  The court quickly dispatched over-broad or vague contentions based on Bates v Arizona 433 U.S. 350, 381 (1977) where it was found to be an inapplicable doctrine to apply to professional advertising. Freedom of association got even less space citing medical and legal precedent. Absence of due process was meritless.
 California's Truth in Advertising statutes specifically prohibit any "professional association or state agency (or) state board" from prohibiting any ad by any "professional person" which does not violate statutory restrictions of false and misleading statements. CA Business & Professions Code 17500.1. Although B&P section 17500 is the general restrictive statute, the statute in present case is B&P section 651 (h) (5) (B) which states that a physician's ad "may include a statement that he or she limits his or her practice to specific fields, but shall not include a statement that he or she is certified or eligible for certification by a private or public board or - - association - - unless that board or association is (i) an American Board of Medical Specialties member board, (ii) a board or association with equivalent requirements approved by that physician and surgeon's licensing board, or (iii) a board or association with an Accreditation Council for Graduate Medical Education approved postgraduate training program that provides complete training in that specialty or subspecialty. A physician - - who is certified by (any other) organization shall not use the term "board certified"- - -."
 The court noted that when Gary Peel, esq., advertised as a nationally certified specialist the Illinois Supreme Court argued that his ad incorrectly implied that their state had formally recognized the national specialty therefore it was inherently misleading. In Peel v Attorney Registration & Disciplinary Commission of Illinois, 496 US 91 (1990) the Supreme Court held it was neither actually nor inherently misleading therefore the Illinois Bar rule not permitting "an attorney to hold himself out as certified by any board as a specialist" was an unconstitutional absolute ban. The Peel court noted that "to the extent that potentially misleading statements of private certification could confuse consumers, a state might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of the specialty."
 Unrelated to this case, California's Rule of Professional Conduct 1-400 (D) (6) limits use of the term "certified specialist" to its own Board of Legal Specialization "or any other entity accredited by the State Bar to designate specialists- -" Such rules are not statutory. CA B&P section 6158.2 (b) provides that electronic media advertising which informs of a lawyer's "fields of practice, limitation of practice, or specialization" is presumed to be in compliance with electronic media ads so long as 'the message as a whole is not false, misleading, or deceptive" . Section 6157.1 prohibits any false, misleading or deceptive advertising by lawyers who are also bound by the basic truth in advertising restrictions of section 17500.
 Not content with its holding the court's dicta continued the constitutional analysis on the hypothetical basis that plaintiff's use of "board certified" was only potentially misleading "because the public may assume that these organizations employ the same standards as (authorized certifying boards, so) consumers may mistakenly believe the advertiser possesses the same level of training and qualification as " (properly certified professionals). "California has a substantial interest in protecting consumers from misleading advertising by medical professionals." The rationale is that used in the RMJ case supra, "the public's comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the 'product' renders advertising for professional services especially susceptible to abuses that the States have a legitimate interest in controlling." The court cited Fla. Bar v Went For It, Inc. 515 (U.S. 618, 625 (1994) for the premise that "States have a compelling interest in the practice of professions within their boundaries, and - - -as part of their power to protect the public - - -they have broad power to establish standards for - - - regulating the practice of professions."
 The dicta continue with a finding that the restriction was not more extensive than needed to serve governmental interests because Peel leaves it up to the legislature to define the scope of achieving its objective. Plaintiffs urged that disclaimer alone would suffice and for that reason California's statute went too far. For California lawyers the professional conduct advertising standards set by its bar prior to June, 1997 permitted the use of the term "certified specialist" so long as the certifying organization was given in the ad. Plaintiff in present matter recognized "diplomates", "fellows" and "clinical associates" and CA Medical Board concedes that physicians could advertise those titles so long as the term "board certified" is not used. The court found that the legislation was "a reasonable fit between the legislature's ends and the means chosen to accomplish those ends."
About the Author: Phillip Feldman is a "Board Certified Specialist" Legal & Medical Malpractice (California, American Bar Association, American Board of Professional Liability Attorneys).
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