Legal Advertising
Any advertising an attorney purchases or places in publications, outdoor installations, radio, television, or any other written or recorded media.
Legal advertising saw a large increase in the 1990s: $102 million was spent on TV ads in 1991, twenty times more than in 1980. The pros and cons of legal advertising have been widely discussed as the amount of advertising has increased. On the positive side, legal advertising makes the public aware of current legal issues and tells people that there are lawyers willing to assist them. Legal advertising also serves the practical purpose of informing people about the times when it may be necessary to consult a lawyer. Statistics show that two out of three people do not seek the services of a lawyer when they should. On the negative side, legal advertising can be manipulated into something that is more slick than informative. Guidelines and legislation have targeted that type of advertising.
The roots of legal advertising can be traced to England's legal system. However, today's standards are based on canon 27 of the American Bar Association's (ABA's) forty-seven canons of professionalethics. Originally written in 1908, these guidelines were for both state and local bar associations. Canon 27, which addressed legal advertising, said, "[S]olicitation of business by circulars or advertisements, or by personal communications, or interviews, not warranted by personal relations are unprofessional." In 1937 this rule was modified to allow attorneys to publish listings in legal directories and other publications that were solely for those in the legal community. The next year the ABA ruled that distinctive listings could also be placed in the white pages of public telephone directories. However, this ruling was overturned in 1951.
In 1969 the ABA reclassified the canons and created nine new ones with ethical considerations and disciplinary rules. These were updated to "represent the objectives toward which every member of the profession should strive" (Model Code of Professional Responsibility, Preamble and Preliminary Statement [1969]). The new guidelines, called the ABA Moral Code of Professional Responsibility, operate on the principle that lawyers may advertise to educate the public, not just to get publicity or gain monetary rewards. This is not an honor system; the ABA Model Rules of Professional Conduct govern and provide guidelines for legal advertising. The major requirement is that an advertisement must be truthful and not deceptive or misleading. Acceptable content includes the lawyer's and firm's names and their address, phone number, type of services offered, bases of fees, available credit arrangements, foreign language ability, references, and client names (with their prior consent). Acceptable media include newspapers, television, radio, phone and legal directories, outdoor installations, and other written or recorded media. Lawyers are required to keep records listing the use and content of each advertisement, as a tool of enforcement.
A set of specific guidelines set forth by the ABA limits the ability of lawyers to state or imply that they have special knowledge in a particular field of law, such as patent law or admiralty law. Because potential clients do not typically have a way to verify that a lawyer is a qualified specialist, this guideline protects them from deception. However, in In re R. M. J., (455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982), the Supreme Court ruled that lawyers have the right to advertise their area of practice if they use "unsanctioned, non-misleading language." Simply stating that they practice a specific type of law — for example, divorce law — is acceptable; stating that they are specialists in that type of law is not.
Although these guidelines have been helpful in establishing higher standards in legal advertising, several problems have arisen. The major problem is that the guidelines are the ABA's creation, and therefore the legal profession is responsible for enforcing them. As with any type of self-regulation, this has led to enforcement standards that are sometimes lax, and the resulting sometimes inadequate punishment only encourages other lawyers to engage in inappropriate or unethical behavior.
The second main problem is that because state associations can create their own legislation based on the ABA's guidelines, what is acceptable legal advertising in one state may be unacceptable in a neighboring state. This can lead to confusion and violation of ethics codes, as well as image problems for the legal profession.
Current regulations that have developed through the courts provide some constitutional protection for some types of legal advertising. These rulings have stated that blanket prohibition of the following subjects is not allowed: costs of routine services; general areas of practice; advice of people's rights and the attorney's willingness to help them, as in class action suits; direct-mail solicitation of people with a particular legal problem, such as impending foreclosure; and direct-personal solicitation if its purpose is political or ideological, not monetary. States are allowed to have regulations that require disclosures or disclaimers, and they can restrict the publication or broadcast of ads that they find to be deceptive, misleading, or false. The ABA has defined misleading advertisements as those that create unrealistic expectations of the lawyer's ability; compare the lawyer's service to the services of other lawyers; advertise the lawyer's win-loss record, or results the lawyer has obtained for clients; or contain client endorsements.
Several landmark cases have set the standards for today's legal advertisements. In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), the Supreme Court ruled that legal advertising in newspapers is protected by the First Amendment, and that state professional or disciplinary codes cannot prohibit it. However, reasonable restrictions can be placed on deceptive, false, or misleading advertisements.
The Supreme Court dealt with direct-mail solicitation in its next landmark case involving legal advertising, Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988). The Kentucky Bar Association had a statute that prohibited attorneys from using direct-mail solicitation to attract clients. The Supreme Court held that the law violated the First Amendment. The ensuing direct-mail standard was that truthful and nondeceptive ads could be targeted at people with known legal problems.
Continuing on the issue of solicitation, Ohralik v. Ohio Bar Ass'n, 436 U.S. 447, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978), involved in-person solicitation. An Ohio Bar Association regulation stated, "A lawyer shall not recommend employment, as a private practitioner, of himself, his partner or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer" (Ohio Code of Professional Responsibility, DR 2-103(A) [1979]). The Supreme Court ruled that in-person solicitation has very limited First Amendment protection, and therefore left its regulation up to the individual states.
