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Bates v. State Bar of Arizona, 433 U.S. 350 (1969)

2011-11-21 23:03:28

Two recent law graduates opened a law practice, which they called the ‘‘Legal Clinic of Bates and O’Steen.’’ The lawyers placed a print ad in a local newspaper, which asked ‘‘Do You Need a Lawyer?’’ and offered ‘‘Legal Services at Very Reasonable Fees.’’ The ad then listed the fees for certain routine legal services. The state bar brought a disciplinary proceeding against the two for violating a state rule of professional conduct that flatly prohibited any mass media advertising.

The Arizona Supreme Court upheld the sanction against the lawyers, reasoning that the advertising rule did not violate either federal anti-trust laws or the First Amendment (In re Bates and O’Steen). The U.S. Supreme Court agreed to review this decision, having decided in the previous term that a rule restricting the advertising of prescription drug prices was an unconstitutional limitation on the free flow of information about the availability and price of commercial services (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.).

The Court held that the protection for Commercial Speech applied to advertising by lawyers, and that the Arizona rule was unconstitutionally broad. Although the law is traditionally said to be a profession, not a ‘‘mere’’ business, there is no reason for lawyers to pretend that they are not interested in earning fees for their work. Moreover, advertising need not be inherently misleading or deceptive. Four dissenting justices argued that there should be some distinction between advertising for products, such as prescription drugs, and professional services.

W. BRADLEY WENDEL

Cases and Statutes Cited

  • Bates v. Arizona State Bar, 433 U.S. 350 (1977) 
  • In re Bates and O’Steen, 555 P.2d 640 (Ariz. 1976) 
  • Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) 

See also Commercial Speech; Lawyer Advertising; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)