Why Care About Attorney Advertising Rights?

I am occasionally asked why I spend so much time focused on the tension between lawyer advertising regulation and the free speech rights of attorneys.  The perhaps-too-obvious answer is that my employer, Avvo, is built upon attorney advertising, and I’ve got a vested interest in seeing that attorneys continue to be able to advertise.

And it’s certainly true that working at Avvo has colored how I think about attorney advertising – but perhaps not in the way one might think.  For while I certainly do have a vested interest in seeing that attorneys continue to be able to advertise, that particular fight has long been over.  Attorneys can advertise, attorneys will continue to be able to advertise, and attorneys will pay good money to advertise for the foreseeable future.

For that, Avvo (and I) thank them.

But what I’ve discovered in 7+ years at Avvo is that the state Rules of Professional Conduct governing lawyer advertising are a sloppy mess, doing a disservice to lawyers and consumers alike.

Since Bates v. Arizona was decided nearly 40 years ago, it’s been settled law that the RPCs can’t stop lawyer advertising, or even limit those ads deemed to be beneath the dignity of the profession. Some might argue that this is a bad thing.  But that’s like trying to stop the tide. In the years since Bates, the Supreme Court has greatly solidified the commercial speech doctrine, with the First Amendment clearly protecting the right of businesses to engage in non-deceptive advertising.  Absent an abrupt, 180-degree reevaluation of how the First Amendment relates to commercial speech, this is not going to change.

Unfortunately, rather than regroup in the aftermath of Bates and devise more streamlined, meaningful rules, the bars simply kept their existing frameworks and bolted on begrudging exceptions for attorney advertising.

The result? Now attorneys have to parse the rules to understand whether they are participating in a “referral program,” or doing something that might be considered “solicitation,” or having the temerity to suggest they might “specialize” in an area of law. There are any number of ordinary means of communicating with other human beings that might technically run afoul of the bar’s advertising rules – particularly as means of communication proliferate.

Thanks to Bates, we’ve now got ever-more-ridiculous attorney television and billboard ads.  Yet at the same time, attorneys ponder whether they can respond to inquiries posted on Twitter, or highlight on their websites feedback from clients.  Where straightforward advertising is clearly allowed, other, more direct forms of communication – which are often far more valuable – exist in a legal gray area.  In this way, the uncertainty of the rules acts as a tax on lawyer communications, making it much harder than it should be for consumers to get information about legal services.

Some lawyers might think that’s a feature, not a bug.  After all, less direct communication means less opportunity for lawyers to deceive clients.  But that condescending viewpoint hardly gives clients – or lawyers, for that matter – the credit they deserve.  In most things speech-related, America has chosen the “more speech solution” as the preferred approach.  Rather than censoring speech, we’ve determined that it’s preferable to let competing voices hash things out in the marketplace of ideas.

Unfortunately, in the marketplace of ideas around legal services, we’ve got the screeching of the Law Hawk and the “life’s short” lady – and a whole lot of attorneys who are going around not communicating with potential clients out of fear of ending up on the wrong side of the Bar.

That’s messed up.  And that’s why I care about restoring attorney free speech rights, and scaling back the reach of the advertising regulations so that they are properly focused only on false and misleading advertising – and not on a clutch of outdated, picayune concerns.

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