Any advertising an attorney purchases or places in publications, outdoor installations, radio, television, or any other written or recorded media.
The pros and cons of legal advertising continue to be widely discussed as the amount and variety of advertising continues to increase each year. On the positive side, legal advertising makes the public aware of current legal issues and lets people know 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. 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) Canons of Professional Ethics. Originally written in 1908, these guidelines were established to act as model rules 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 the Model Code of Professional Responsibility. In 1983, in an effort to further codify standards of legal conduct, the ABA replaced the code with the Model Rules of Professional Conduct; Section 7 of the Model Rules deals specifically with lawyer advertising and solicitation. According to Section 7, advertisements must be truthful and not deceptive or misleading. 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, unless the facts can be substantiated; or contain any known misrepresentation. Acceptable content includes the lawyer contact information, including address and 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.
The ABA periodically amends the model rules to make adjustments for evolving norms and changes in technology. For example, in 1998, the ABA addressed the widespread use of the internet by lawyers to advertise their businesses. According to the ABA Commission on Advertising, "The use of the Internet by legal service providers creates a wide range of ethical issues."
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.
"Spamming" the Net
Legal advertising has found its way into the phone books and onto radio and television. With the growth of the internet as an information and communication resource, lawyers and law firms have established home pages on the World Wide Web to provide legal information and advertise their services. This has created new opportunities and new problems.
In April 1993 Laurence Canter and Martha A. Siegel, of the Phoenix, Arizona, law firm of Canter and Siegel, sent an e-mail message to thousands of Internet news groups, advertising their immigration law practice, in the hope of gaining new clients. News groups are electronic bulletin boards where people post messages concerning a very specific topic. They have millions of subscribers.
Canter and Siegel's direct mailing to the news groups cost them virtually nothing compared with the cost of a conventional hard copy mailing. In sending their advertisement, they used a process called spamming, which allows a message to be sent to every news group in existence, regardless of whether a particular group might be interested in the content of the message.
The spamming set off a tidal wave of protests from readers of news groups who were angry that the law firm had violated Internet etiquette. Canter and Siegel's Internet provider received thirty thousand messages, some of which were death threats. The law firm claimed to have received over twenty thousand positive responses and to have gained some new clients.
Though the Internet community and members of the legal community voiced their displeasure at the spamming, Canter and Siegel's advertisement was legal. Their action was analogous to placing an advertisement in a newspaper and hoping a person would read it.
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 some critics to claim that enforcement standards are sometimes lax, and that 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.
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 addressed the issue of in-person legal solicitation in Ohralik v. Ohio Bar Ass'n, 436 U.S. 447, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978). 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) ). The Supreme Court ruled that in-person solicitation has very limited First Amendment protection, and therefore left its regulation up to the individual states.
Should Legal Advertising Be Restricted?
Despite a series of rulings by the U.S. Supreme Court that lawyers may advertise their services, the issue of legal advertising remains controversial. Proponents of advertising contend that it provides to consumers information about their legal rights and allows those in need of legal services a way to find an attorney. Opponents charge that advertising demeans the legal profession because promoting legal services through print or electronic media tells the public that lawyers are only out to make money. With the rise of the internet, legal advertising has moved into a new medium, generating even more questions about the need for restrictions on advertisements.
Opponents of legal advertising are primarily concerned with maintaining the law as a profession. As members of a profession, lawyers have pledged to serve the public interest. For much of U.S. history, lawyers have served as protectors of civil rights and democratic institutions. Those who oppose legal advertising argue that this historic role must be preserved in the face of advertising that is sometimes undignified and demeaning to the profession.
State bar associations and state supreme courts have set standards for the ethical conduct of attorneys. Opponents of advertising believe that the regulation of advertising properly falls within the jurisdiction of these institutions. Though many attorneys may object that regulation restricts their first amendment right to freedom of expression, the U.S. Supreme Court has never ruled that states are without power to police the legal profession.
Opponents argue that even with the restrictions currently imposed, too many lawyers hurt the profession by producing radio and television advertisements that create the perception that lawyers are ambulance chasers. If restrictions were loosened, this group contends, some lawyers would become even more aggressive in soliciting business. Public dissatisfaction with lawyers and the legal system, which has grown considerably since the 1970s, would continue to increase.
Opponents of advertising believe that purposeful competition between lawyers for clients is a great evil of the profession. The legal profession must concentrate on public service rather than profits. When lawyers advertise they provide the public with a misleading picture of legal services, suggesting that legal issues can be solved as easily as a sink can be fixed. Because the law is complex, the consumer cannot evaluate the quality of the offered services.
Opponents also note that the high cost of advertising must be passed on to the consumer. Also, the financial burden of advertising may encourage a lawyer to pursue nonmeritorious litigation. In addition, if a lawyer works with a high volume of clients generated by advertising, the lawyer may have little opportunity to communicate with a client or fully analyze a legal issue brought to the lawyer.
Those who support fewer restrictions on legal advertising contend that bar associations and bar leaders are out of step with the realities of U.S. society. First, they argue that bar associations were organized in the late nineteenth century to ensure that lawyers were self-regulated. This meant that a bar association could control the behavior of its members and find ways to preserve the monopoly over legal services. These supporters suggest that the public has not been well served by this system.
Though law is a profession, the need to make money has always been acknowledged. Supporters of advertising argue that it is therefore disingenuous for well-heeled lawyers to lament the introduction of competition. They point out that bar leaders have generally come from large corporate law firms, which have no need to advertise for clients but compete for profitable corporate retainers. These firms, they contend, have not provided public service but have concentrated on making profits. If corporate firms had helped with the unmet legal needs of society, perhaps advertising would not be necessary.
Proponents of advertising do not believe that professionalism, public service, and commercialism are mutually exclusive. They contend that lawyers can provide the public with a service by advertising. Much of legal advertising is educational, instructing consumers on what their legal rights are and where they may consult an attorney for free or for a minimal charge. Advertising reaches people who would not otherwise know what to do or where to go with a legal problem.
Proponents of advertising argue that placing the legal profession in the marketplace is not demeaning but democratic. Legal advertising breaks down the elitist notion that lawyers are somehow superior to others in the workforce. Lawyers provide services, many of which are simple. Competition helps to drive down the costs of legal services rather than increase them. Advertising does cost money, but innovative law firms have learned how to use forms, computers, and the services of legal assistants to reduce operating costs. In most cases the quality of legal services has not suffered. As with any business, if consumers are unhappy with the service they receive, they will not return. Proponents contend that the brisk business done by law firms that advertise is evidence of the quality of work they produce.
Those who favor legal advertising generally are convinced that advertisements provide consumers with information about legal services. As long as promotional material is not misleading or false, legal advertising should be subject to minimal restrictions. Proponents note, however, that most lawyers either refrain from advertising or do it in the most conservative way, so as to avoid censure by their bar associations.
The issue of direct-mail solicitation was the focus of 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.
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