Bar Advertising

In Bates v. State Bar of Arizona (1977), the Supreme Court decided that lawyer advertising was commercial speech protected by the First Amendment. States cannot prohibit all lawyer advertising, but the Court left open the boundaries of permissible regulation for case‐by‐case development. Regulators of lawyers have tried to retain maximum control, while entrepreneurial lawyers have continued to challenge these efforts. This has provoked many Supreme Court decisions. States may prohibit clearly misleading advertising but not potentially misleading techniques when the information could be presented accurately. States may ban in‐person solicitation but not personal letters to potential clients. States may not ban newspaper advertisements giving legal advice, but they may require that advertising of contingent‐fee services disclose that clients must pay the costs of unsuccessful lawsuits. Lawyers may assert on letterheads that they are certified by the National Board of Trial Advocacy, a private group.

Despite rhetoric and advocacy in the guise of social science, the impact of lawyer advertising is unclear. Proponents such as the Federal Trade Commission assert that advertising lowers prices, promotes efficiency, and increases access to justice. However, bar association leaders argue that lawyers, who are forced to offer services at advertised prices, will cut the quality of their work. The major Federal Trade Commission study of lawyer advertising rests on a questionable sample and ignores all indications in its own data that advertising regulation has little impact on lowering fees.

A few lawyers have used expensive television ads, but these lawyers had to pay to reach many viewers who had no need for legal services. Most lawyers have advertised in less costly telephone‐directory Yellow Pages. Many lawyers advertise a free initial consultation, and this may attract clients who fear high fees. Few lawyers unqualifiedly advertise particular services for specified fees. Without such specific advertising, prices are unlikely to drop. Moreover, potential clients may be skeptical of cut‐rate lawyering. Debate about lawyer advertising may divert attention from ways of avoiding or solving problems without lawyers. Many routine services sometimes advertised at low prices could be performed by paralegal workers, other professionals, or client self‐help.

See also Commercial Speech.

— Stewart Macaulav