Attorney ads are everywhere, featured on television, the Yellow Pages,
direct-mail solicitation letters, billboards, Web sites, and the backs of
bus-stop benches. They flood the marketplace, informing consumers of their
choices of legal counsel. “Protect Your Rights,” “We’ll Fight for You,” and
“Don’t Settle for Less” have become familiar refrains.
Such was not always the case. For most of the 20th century, attorney
advertising was forbidden by bar associations. For many years, the only form of
permissible advertising was business cards. In fact, the American Bar
Association’s first ethics code, adopted in 1908, allowed just printed
cards.
Though restricting advertising obviously infringes on the freedom of speech,
for a long time the U.S. Supreme Court found no First Amendment violation in
such restrictions. In its 1942 decision Valentine
v. Chrestensen, the Court wrote: “We are equally clear that the
Constitution imposes no such restraint on government as respects purely
commercial advertising.”
It was not until the 1970s that the Court ruled that so-called commercial
speech — or speech that does no more than propose a commercial transaction — was
entitled to some degree of First Amendment protection.
In 1976, the Court struck down a Virginia law forbidding pharmacists from
advertising prescription drug prices. In Virginia
State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
Justice Harry Blackmun wrote that “the free flow of commercial information is
indispensable.” He added that “[a]s to the particular consumer’s interest in the
free flow of commercial information, that interest may be as keen, if not keener
by far, than his interest in the day’s most urgent political debate.”
Bates v. State Bar of Arizona
The very next year the Court
first determined that attorney advertising was a form of commercial speech
entitled to some degree of First Amendment protection in Bates v.
State Bar of Arizona. The dispute in Bates began when two Arizona
attorneys placed an ad in The Arizona Republic newspaper. The ad quoted
prices for certain routine legal services.
This action violated an attorney disciplinary rule that provided: “A lawyer
shall not publicize himself, or his partner, or associate, or any other lawyer
affiliated with him or his firm, as a lawyer through newspaper or magazine
advertisements, radio or television announcements, display advertisements in the
city or telephone directories or other means of commercial publicity, nor shall
he authorize or permit others to do so in his behalf.”
The president of the Arizona bar filed a complaint against the two lawyers,
who argued that the ban on attorney ads in newspapers violated the First
Amendment. The case eventually reached the U.S. Supreme Court. The Court sided
with the attorneys: “Like the Virginia statutes (at issue in Virginia State
Bd. of Pharmacy and Bigelow
v. Virginia), the disciplinary rule serves to inhibit the free flow of
commercial information and to keep the public in ignorance.”
The Arizona bar made several arguments against the attorney newspaper ads,
including that they:
- Would have an “adverse effect on professionalism” in the legal profession.
- Were "inherently misleading."
- Would stir up litigation.
- Would drive up prices.
- Would lead to a decrease in the quality of legal services.
- Would be too difficult to regulate.
The Supreme Court rejected all of these arguments by a 5-4 vote. The majority
found “the postulated connection between advertising and the erosion of true
professionalism to be severely strained.” It also described the historical
aversion to attorney ads as a “rule of etiquette” rather than a “rule of
ethics.”
The Court reasoned that “the prohibition of advertising serves only to
restrict the information that flows to consumers” and that “advertising is the
traditional mechanism in a free-market economy for a supplier to inform a
potential purchaser of the availability and terms of exchange.”
Though it ruled in favor of the attorneys, the majority cautioned that not
all advertising by attorneys should receive First Amendment protection. False,
deceptive or misleading attorney advertising is unprotected, the Court said.
Warnings or disclaimers may be required in some attorney ads. The Court also
noted that restraints on in-person solicitation may be appropriate.
The Bates decision led to an increase in attorney advertising. Then,
in a series of later cases, the Supreme Court struck down even more
restrictions. From 1977 until 1995, the only time the Court upheld a restriction
on attorney speech, it involved a ban on in-person solicitation.
In Ohralik
v. Ohio State Bar Assn. (1978), the Court distinguished between
in-person solicitation from a newspaper ad, finding that the former was far more
coercive. “Unlike a public advertisement, which simply provides information and
leaves the recipient free to act upon it or not, in-person solicitation may
exert pressure and often demands an immediate response, without providing an
opportunity for comparison or reflection,” the Court wrote.
In other decisions, however, the Court sided with attorneys in advertising
cases. Prominent First Amendment scholar Rodney Smolla has written: “Despite the
decision in Ohralik, the broad trend by the Supreme Court has been to favor
freeing the speech of lawyers.”
The Court has struck down:
However, in 1995, the Court sided with Florida State Bar officials and upheld
a 30-day ban on attorney solicitation letters in Florida
Bar v. Went For It, Inc. The Court noted that Shapero dealt with
a total ban on solicitation letters, while the Florida rule only prohibited such
letters for 30 days after an accident. In the Went For It case the Court
also placed greater emphasis on the privacy concerns of accident victims and
their families. Finally, the majority relied on a 106-page survey done by the
Florida bar that contained much anecdotal evidence of public dissatisfaction
with attorney advertising.
The Went For It decision emboldened bar regulators across the country
to pass similar 30-day bans on attorney solicitation letters. Legal commentator
John Phillips has referred to this pattern as a “continual erosion of First
Amendment rights.”
Restrictions in era of greater commercial-speech
protection
Ironically, the Went For It decision and other
regulations on attorney speech have occurred during a time when the U.S. Supreme
Court has more searchingly scrutinized restrictions on commercial speech in
general. Though the majority of the Court still accords commercial speech less
protection than other forms of noncommercial speech (like political speech),
some of the justices have expressed dissatisfaction with the second-class status
of commercial speech. Justice Clarence Thomas spoke forcefully on the issue in
his concurring opinion in a liquor-ad case (44
Liquormart, Inc. v. Rhode Island) in 1996: “I do not see a philosophical
or historical basis for asserting that ‘commercial’ speech is of ‘lower value’
than ‘noncommercial’ speech. Indeed, some historical materials suggest to the
contrary.”
Though the Court has struck down many restrictions on commercial speech, “Bar
regulators seem unwilling to get with the free speech program,” says Smolla.
“Ignoring the broad movement and driving philosophy behind modern commercial
speech jurisprudence, they look instead for loopholes.”
Smolla’s prediction appears to be prescient. A prime example arose recently
when the Florida Bar cited two attorneys for using pit bulls in their
advertisements. The bar contended that the use of the pit-bull image was
degrading to the legal profession and could be regulated. The Florida Supreme
Court agreed with the Bar in Florida Bar
v. Pape. The state high court wrote that the ads “demean all lawyers and
thereby harm both the legal profession and the public’s trust and confidence in
our system of justice.” The two lawyers, assisted by Smolla, sought Supreme
Court review, but the U.S.
Supreme Court denied certiorari on March 27, 2006.
Other states are grappling with the issue of lawyer advertising that uses
client testimonials. Supporters contend such testimonials provide more
information to potential clients, while detractors say testimonials are
potentially misleading to consumers by implying certain positive results for
clients.
The New Jersey Supreme Court is currently considering whether to allow
attorneys to advertise in Super Lawyers magazine. In July 2006, the
Committee on Attorney Advertising in New Jersey ruled that it was impermissible
for attorneys to communicate their selection in the magazine or to participate
in Super Lawyers surveys. However, in June 2008, a “special master”
issued a detailed report to the New Jersey Supreme Court that contradicted many
of the findings by the advertising committee. (A special master is someone appointed by a court to carry out a task.) The New Jersey Supreme Court is
expected to rule in 2009 on the issue.
Meanwhile, states must also grapple with the question of attorneys
advertising online. Expect more controversies and cases in this contentious area
in the future.
Smolla writes that “if commercial advertisers are First Amendment
step-children, lawyers come closer to abandoned orphans.” It will take future
litigation to determine whether lawyers will receive the same level of
commercial-speech protection as other advertisers.
Updated December 2008
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