Lawyers in the United States have historically advertised their services, but before the end of the nineteenth century they had little need for mass-media advertising. Lawyers mostly attracted business through word-of-mouth referrals in the local community. The increasing size and diversity of the legal profession at the end of the century created the need in some cities for lawyers to use means of attracting clients other than enhancing their reputation.
The last few decades of the nineteenth century also witnessed the beginning of the organized bar movement. Elite lawyers were concerned that the country was awash in mediocre practitioners, many of whom were vigorously entrepreneurial, if only marginally competent. But the organized bar exercised relatively little control over the standards for entry to the profession, which was largely in the hands of local judges. Concerns about the quality of many newly licensed lawyers, as well as the competitive pressures created by these new entrants to the bar, is one plausible explanation for the antipathy toward advertising that arose around the beginning of the twentieth century.
The American Bar Association’s Canons of Professional Ethics, published in 1908, declared circulars, advertisements, and in-person solicitation of prospective clients to be reprehensible and offensive to the traditions of the bar. State regulations and the ABA’s Model Code of Professional Responsibility, adopted in 1969, were similarly restrictive. In general, lawyers were permitted to use unobtrusive, dignified signs, business cards, and professional announcements in newspapers, as long as they did not make any representations about the quality of their services, identify themselves as specialists in any field of practice, or otherwise make false, misleading, or deceptive claims. State rule makers and professionalism committees devoted considerable energy to policing the line between dignified announcements and prohibited hucksterism.
Starting with the Bates decision, the Supreme Court has significantly restricted the latitude of states to regulate advertising (Bates v. State Bar of Arizona). Consistent with the First Amendment, a state may prohibit deceptive or misleading claims but may not prohibit the provision of truthful information, including information about fees charged by the lawyer, areas of specialty, and the lawyer’s willingness to represent clients in particular types of cases. Some states have read Bates more narrowly than others and continue to enforce regulations designed to ensure that advertisements are tasteful and dignified. In-person solicitation of prospective clients may be limited in circumstances in which the contact poses a risk of undue influence or intimidation by the lawyer (Ohralik v. Ohio State Bar Association).
Supporters of continued restrictions on lawyer advertising believe it diminishes the public’s respect for the legal profession. The Supreme Court has appeared receptive to this argument in some situations and has upheld a state rule imposing a thirtyday waiting period before lawyers may contact accident victims (Florida Bar v. Went For It, Inc.) Opponents of advertising restrictions emphasize the role of advertising in providing information about legal services to unsophisticated potential clients.
W. BRADLEY WENDEL
References and Further Reading
- Andrews, Lori B., Lawyer Advertising and the First Amendment, American Bar Foundation Research Journal 1986 (1986): 967–1021.
- Friedman, Lawrence M. A History of American Law. 2nd Ed. New York: Touchstone, 1985.
- Hazard, Geoffrey C., Russell G. Pearce, and Jeffrey W. Stempel, Why Lawyers Should Be Allowed To Advertise: A Market Analysis of Legal Services, NYU Law Review 58 (1983): 1084–1113.
- Wolfram, Charles W. Modern Legal Ethics. St. Paul, MN: West, 1986.
Cases and Statutes Cited
- Bates v. Arizona State Bar, 433 U.S. 350 (1977)
- Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)
- Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978)
- ABA Model Rules of Professional Conduct, Rules 7.1–7.5 (2002)