Since Bates, the Supreme Court has issued nine decisions directly touching on attorney advertising. We’ll look briefly at each one. These cases provide a good look both at the development of the commercial speech doctrine, but also illuminate the special scrutiny the justices sometimes bring to bear on lawyer marketing. There are three broad-but-important conclusions to be drawn from these cases:
- As with all other industries, the state (in the form of attorney regulators at the Bar or state Supreme Court) can only regulate certain types of communications by attorneys. Attorneys do not cede their First Amendment rights when they obtain their bar cards.
- Even when it comes to marketing communications, the bar rules cannot be applied mechanically. They must be both necessary and narrowly drawn.
- But there’s a caveat: the Justices of the Supreme Court have displayed a tendency to hold legal services to a higher standard that that of other categories of goods and services. You’ll want to keep this in mind when considering close cases involving marketing communications by attorneys.