The legal profession has long restricted the ability of lawyers to market themselves. These restrictions have run the gamut from significant limitations on general advertising to outright prohibitions on many forms of in-person business solicitation.
Driving this regulation has been two broad themes: protecting the image of the profession and preventing undue influence by those trained in the art of persuasion when it comes to making a choice of counsel.
The rules relating to legal advertising can be traced back bar etiquette in 1800’s England. The “esquires” of that day saw themselves as part of a public calling, rather than members of a crassly commercial profession. And despite the aggressively mercantile nature of the new world, this attitude informed regulation of the American bar well into the twentieth century.
Until the late 1970’s, most states prohibited lawyers from advertising. This wasn’t simply out of tradition or a gentleman’s agreement not to seek publicity – the rules of professional conduct out-and-out barred attorneys from engaging in virtually any form of commercial publicity. No late-night TV ads, no billboards, no yellow pages pieces, no radio spots. Nothing.
That all changed with the 1977 U.S Supreme Court case of Bates v. Arizona. 1 Bates, besides being emblematic of the right of attorneys to advertise, also had two other features common to the clash between attorneys seeking to advertise and regulators seeking to keep them from doing so.
The first is that the plaintiffs ran a consumer-facing practice that marketed lower-end legal products to a broad consumer market. Such a business, regardless of industry, relies on volume to stay open – and getting volume requires advertising. At scale, such businesses can deliver tremendous consumer value by keeping prices transparent, predictable and low. Low-end products and services aren’t right for everyone, but they suffice for a great many. But again: those who provide them can’t afford to do so absent the scale offered by mass marketing.
The second factor? The complaint against the plaintiffs wasn’t filed by unhappy consumers, who had somehow been bilked by the attorneys and their legal clinic. It was brought by the bar itself. This wasn’t unusual. Complaints about attorney advertising are almost never brought by consumers, but by competing attorneys or the regulators themselves.
In striking down Arizona’s ban on attorney advertising, the court in Bates noted:
“The choice between the dangers of suppressing information and the dangers arising from its free flow was seen as precisely the choice that the First Amendment makes for us. “ 2
This is a critical point to keep in mind. Advertising may be loud and undignified. It is almost always incomplete and manipulative at some level. It is as far from a sober and thorough examination of the issues as a communications medium could be. But, when faced with the choice between choking off all advertising or running the risk endemic in full and unbridled speech, the First Amendment makes clear that the choice is on the side of more speech.
Or as Harry Blackmun put it, in writing the majority opinion in Bates:
“Advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision.” 3
But as we’ll see, many attorneys – and still too many attorney regulators – regard speech as something in need of careful constraint.