Attorney Speech

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Restraints on communication have long been a central feature of the regulation of professional activities. The ancient offense of barratry, aimed at one who stirred up quarrels and suits, carried forward into modern regulation of lawyer conduct, including restrictions on advertising and other forms of solicitation of business. Justifications for the restraints cited the need to protect uninformed and vulnerable people from unscrupulous practitioners, as well as the need to preserve the professional character of legal practice. A common element of the notion of professionalism is the idea that the practice is driven, at least in part, by other than commercial values. Advertising of services was widely considered by bar associations that regulate the practice of law to elevate the commercial over the professional dimensions of the practice.

Prohibitions on lawyer advertising and solicitation were protected from constitutional attack so long as the Supreme Court generally adhered to the position that commercial speech was outside the ambit of first amendment protection. However, when the Court abandoned that position in virginia state board of pharmacy v. virginia consumer council (1976), it was soon confronted with claims that restrictions on advertising and solicitation by attorneys were unconstitutional. In bates v. state bar of arizona (1977), the Court concluded that newspaper advertising of prices associated with routine legal matters, such as uncontested divorces and simple personal bankruptcies, was constitutionally protected. The Court rejected the argument that the state's concern for the professionalism of the bar was adequate to justify prohibition on price advertising, as well as the claim that price advertising was inherently misleading because of the unpredictability of complicating factors in even the most mundane of legal matters. At the same time, the Court acknowledged that some regulation of lawyer advertising might be warranted, and so refused to articulate a broadly protective constitutional rule.

Regulation of client solicitation was presented by two cases decided in 1978. Ohralik v. Ohio State Bar (1978) involved the in-person solicitation of business from an accident victim. Ohralik displays an ambivalence about the protection of commercial speech that pervades doctrinal development of the subject. Commercial speech regulation brings together speech regulation, which is generally highly suspect, and commercial regulation, which is generally permissible on a showing that public ends are reasonably served. In Bates, the Court had emphasized the educational value of the advertising, and characterized the regulation as seeking to accomplish a legitimate end through the device of forcing ignorance on the consumer—kinds of arguments that are associated with standard speech-protective doctrine. In Ohralik, the Court emphasized the business regulation aspect of the ban on in-person solicitation, with a focus on the specific harms associated with the practice. It made clear that the move to bring commercial speech under the protection of the First Amendment did not place it on the same plane of importance as, for example, political speech. At least with regard to speech that was primarily concerned to propose a commercial transaction, the high degree of judicial scrutiny associated with core First Amendment values was not warranted.

In re Primus (1978) involved solicitation by letter of a woman who had been sterilized as a condition of receiving medical assistance from the state. The attorney was working with the american civil liberties union, and thus presented the Court with the special circumstances of ideological advocacy, where lawsuits are motivated by political considerations rather than pecuniary gain. The Court appeared to find the relation to traditional forms of protected speech controlling, though the effort to distinguish court-awarded fees from client-paid fees demonstrated the difficulty in maintaining a clean distinction between commercial and noncommercial forms of expression.

A few years after Primus and Ohralik, the Court set out a general approach for testing the regulation of commercial speech, in central hudson gas and electric company v. public service commission (1980), requiring that regulations of nonmisleading commercial speech regarding legal activities serve a substantial governmental interest in a direct and narrowly focused way. Using the analytical framework established in Central Hudson, the Court struck down prohibitions on direct mail advertising, and advertising of special qualifications. More recently, in florida bar v. went for it, inc. (1995), the Court sustained a prohibition on direct mail solicitation of personal injury and wrongful death clients within thirty days of the event that was the basis for the claim. The Court was persuaded that protecting the sensibilities of accident victims and their families, and the reputation of the legal profession, were interests of sufficient importance to outweigh the attenuated First Amendment value of the interdicted communication.

The organized legal profession has reached an accommodation with the infusion of overt commercialism that followed from Bates. Nice questions regarding the balance between commercial and professional values may remain to be resolved, but it is unlikely that they will much alter the regime of lawyer advertising with which we have become familiar.

James M. O'Fallon

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Attorney Speech

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