Attorney Advertising Rules
Debate Continues Despite Ruling in Bates-vs-The State Bar of Arizona
Mar 26, 2008
American lawyers have added websites and blogs to their multimedia promotion tools in recent years, fanning the debate over whether they should be allowed to advertise their services. Part of the new controversy is whether attorney blogs should be considered advertising.
In 1977 the U.S. Supreme Court ruled in the Bates-vs-the State Bar of Arizona case that attorneys had the right to advertise their services.
Until then, state bar associations limited most attorney promotion to the handing out of business cards. The associations, most of them led by attorneys in big prestigious legal firms, argued that advertising was below the profession’s standards and would damage the image of the profession.
Arizona Bar Association Said a Lawyer Shall Not Publicize Himself
The Arizona Bar Association reflected the opinion of most bar associations in the 1970s. In its argument before the Supreme Court, it said "a lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm."
In that written statement, the Arizona Bar said the ban should include newspaper and magazine ads, radio and television commercials and even display advertising in city and telephone directories.
For several years after the Supreme Court’s decision in the Bates case, lawyers remained under considerable peer pressure not to advertise. But slowly some of them began using the media, especially television, to promote their services, particularly in handling damage suits.
Since then they have used advertising to promote class action suits, to solicit personal injury cases, to offer assistance to Social Security applicants and to malpractice victims. The advertising has intensified criticism and political pressure against trial lawyers, the most active advertisers.
In 2006, the New York Office of Court Administration presented an appeals court a document summarizing consumer complaints against advertising by lawyers. It ran over 100 pages.
Public Citizen Opposed New York and Florida Restraints on Advertising
Stringent restrictions against attorney advertising were proposed in New York in 2006-07 and in Florida in 2008. Public Citizen, a national consumer advocacy organization, opposed the proposed advertising rules in both states, arguing that they would restrict the flow of information to consumers and violated the free speech amendment to the U.S. Constitution.
The proposed New York rules included advertising bans on the use of nicknames and mottos, Internet pop-up ads, the portrayal of judges, client testimonials and other attention-getting techniques.
Each of the above restrictions were voided by the U.S. District Court for the Northern District of New York in 2007. The court did allow New York to enforce a 30-day moratorium on lawyers contacting victims, their families or representatives. It also upheld New York’s ban on the use of deceptive domain names.
In Florida, Public Citizen filed a suit against the Florida Bar Association’s rules prohibiting attorneys to use background noises, slogans and statements about the quality of their service in advertising. A lawyer joined the suit so that he could continue using the phrase "don’t accept less than you deserve" in his advertising.
Public Citizen said in a news release that "it is nearly impossible to design an interesting or effective ad that complies with the (Florida) rules."
The Florida proposals were still under review in March 2008.
Individual states and their bar associations govern attorney advertising, which has resulted in a variety of rules across the nation, including pre-approval of ads by the associations. The growth of Internet advertising, websites and blogs have generated suggestions for federal rules on lawyer advertising. The Federal Trade Commission currently has authority over only false and misleading advertising.
Sources:
- First Amendment Center.org
- Public Citizen.org
- American Bar Association
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