Byte of Prevention Blog

by Jay Reeves |

Lawyers Mutual – and Lawyer Advertising – Turn 40 This Year

40th anniversary logoThis year Lawyers Mutual celebrates its 40th birthday – a milestone it happens to share with a blockbuster court ruling that changed the practice of law.

In 1977, the U.S. Supreme Court decided Bates v. State Bar of Arizona, the ruling that opened the door to lawyer advertising.

Forty years later, advertising has become just another aspect of practicing law, like bar dues and CLE seminars. But back then, the decision plowed controversial new ground.

It is worth remembering that the high court was sharply split on the case. Justice Harry Blackmun wrote the 5-4 majority opinion, which held that legal ads were commercial speech protected by the First Amendment. Three separate concurring and/or dissenting opinions were submitted.

Writing for the majority, Justice Blackmun downplayed the ruling’s likely impact.

“We suspect that, with advertising, most lawyers will behave as they always have,” he wrote. “They will abide by their solemn oaths to uphold the integrity and honor of their profession and of the legal system. For every attorney who overreaches through advertising, there will be thousands of others who will be candid and honest and straightforward. And, of course, it will be in the latter's interest, as in other cases of misconduct at the bar, to assist in weeding out those few who abuse their trust.”

But the dissenters – led by Justice Lewis Powell – feared the court was opening Pandora’s box.

“[T]oday’s decision will effect profound changes in the practice of law,” wrote Justice Powell. “Although the exact effect of those changes cannot now be known, I fear that they will be injurious to those whom the ban on legal advertising was designed to protect - the members of the general public in need of legal services.”

You can read the full opinion here.

Two Young Lawyers Hang a Shingle

The plaintiffs in Bates – John Bates and Van O’Steen – had been law school classmates at Arizona State University with stellar credentials. Bates was voted outstanding member of his class, and O’Steen graduated with honors.

After graduating, they worked for legal aid in Arizona before opening their own law clinic in Phoenix. Their plan was to serve clients who could not pay big fees. To do this, they accepted only routine, uncomplicated cases and kept costs low by using paralegals and standardized legal forms.

“We wanted to change the existing system, which favored existing law firms, who did not seek clients among the unserved,” Bates says here. “[A] huge number of people were being turned away. We wanted to offer affordable legal services.”

Quickly, though, they realized their practice was doomed unless they could get the word out to the general public.

And so they placed the following ad in the Arizona Republic:

Do you need a lawyer? Legal services at very reasonable fees.

· Divorce or legal separation — uncontested (both spouses sign papers) $175 plus $20 court filing fee

· Preparation of all court papers and instructions on how to do your own simple uncontested divorce $100

· Adoption — uncontested severance proceeding $225 plus approximately $10 publication cost

· Bankruptcy (non-business, no contested proceedings) – individual $250 plus $55 court filing fee; wife and husband $300 plus $110 court filing fee

· Change of name - $95 plus $20 court filing fee

Information regarding other types of cases furnished upon request Legal Clinic of Bates & O’Steen

The attorneys knew they were stepping into an ethical minefield. The disciplinary rules of Arizona banned all lawyer advertising, even in telephone directories. So Bates and O’Steen did what any nervous but sensible person would do: they went out and got themselves a good lawyer – in this case their friend and former ASU constitutional law professor William Canby.

Sure enough, the Arizona State Bar slapped them with a suspension, which the state Supreme Court upheld. The plaintiffs appealed directly to the U.S. Supreme Court, which struck down Arizona’s ban on First Amendment grounds.

“It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point,” the high court ruled. “And, at another, to assert that its members will seize the opportunity to mislead and distort.”

A behind-the-scenes account of Bates can be found on the website of the Newseum in Washington, DC.

Which brings us to today, with lawyer ads plastered on billboards, city buses and even urinals. One wonders what Justices Blackmun and Powell would think.

Sources:

· Cornell Law School https://www.law.cornell.edu/supremecourt/text/433/350 · Newseum http://www.newseuminstitute.org/2004/11/18/bates-participants-reflect-on-landmark-case/

· Business Insider http://www.businessinsider.com/some-of-these-lawyer-ads-are-just-outrageous-2012-5#spencer-and-associates-llc-will-make-cash-rain-from-the-sky-7 · Findlaw http://caselaw.findlaw.com/us-supreme-court/433/350.html

 

About the Author

Jay Reeves

jay.reeves@ymail.com | 919-619-2441

Jay Reeves practiced law in North Carolina and South Carolina. Over the course of his 35-year career he was a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms put more mojo in their practice through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations.

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