Remember When Lawyers Couldn’t Advertise?

Bates and lawyer advertisingFor many lawyers, it is almost unimaginable to think about not advertising today. But it was not that long ago that lawyers could not advertise. Believe it or not, there are still lawyers out there who still believe lawyers should not advertise. In the view of some, lawyer advertising is just not professional.

If this comes as a shock to you, it was not until 1977, in the case of Bates v. State Bar of Arizona, 433 WS. 350 (1977), that the United States Supreme Court held that bans on lawyer advertising were impermissible. In Bates, the United States Supreme Court held that lawyer advertising was commercial speech entitled to protection under the First and Fourteenth Amendments to the United States Constitution.

To provide some case details, the State Bar of Arizona had categorically forbidden lawyers in their state from advertising legal services. The State Bar later initiated disciplinary proceedings against two lawyers, Bates and O’Steen, for advertising legal services in the areas of divorce, adoption, bankruptcy, and name change.

The disciplinary committee recommended that Bates and O’Steen be suspended for no less than six months for violating the ban on lawyer advertising. Bates and O’Steen challenged the ban on lawyer advertising in the Arizona Supreme Court alleging that it violated the Sherman Antitrust Act and the First Amendment. Ultimately, the Arizona Supreme Court rejected both claims.

When the case came to the United States Supreme Court, they agreed there was no violation of the Sherman Antitrust Act. However, under the First and Fourteenth Amendments, a majority reversed finding that a total ban on lawyer advertising was impermissible.

In some interesting quotes, the majority stated that a ban on lawyer advertising serves to “inhibit the free flow of information and keep the public in ignorance.”  They also pointed out that “[b]ankers and engineers advertise, and yet these professions are not regarded as undignified.”

In perhaps one of the most interesting quotes relative to established versus un-established lawyers, the United States Supreme Court said this:

“The entry barrier argument is equally unpersuasive. In the absence of advertising, an attorney must rely on his contacts with the community to generate a flow of business. Given the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys. Consideration of entry barrier problems would urge that advertising be allowed to aid the new competitor in penetrating the market.”

While 1977 might seem like a long time ago, the reality is that many “established lawyers” still frown upon lawyer advertising. Many still believe that the majority opinion in Bates was wrong. Or, conversely, even if they were right from a legal perspective, many still look down upon lawyers who advertise (even if it is allowed). Of course, one has to wonder whether these “established lawyers” really do not like advertising or whether their objection has anti-competitive motivations in that they don’t want other law firms scooping up business that they feel should go to them?

Nonetheless, there are important lessons and considerations for lawyers and law firms today:

  • For lawyers and law firms who are savvy with marketing, they have to realize that there are many lawyers out there who still look down upon lawyers who advertise. While 1977 might seem like a long time ago, it seems like yesterday to some. This can be a hard lesson for lawyers who were either (a) born after 1977 or (b) who were so young when the Bates decision came out that it’s hard to even imagine a time when lawyers could not advertise.
  • If you are a savvy lawyer who knows how to market, you have to understand that some of the “established attorneys” are probably not going to like you if you succeed with your marketing efforts. While you might be proud that you can gain new clientele, provide great legal services, make a life for yourself and even pay down your student loan debt (which are substantially higher for most lawyers today than in 1977), some lawyers might resent your successful marketing efforts. Even if you do virtually everything else right as an attorney, some folks will be predisposed not to like you simply because you advertise.
  • While the rules are not always clear on their face, you have to be certain that with any marketing you are doing, that you are doing your best to comply with the Rules of Professional Conduct regarding lawyer advertising. The reality is that they are vague and ambiguous in a lot of respects (and often left up to a great deal of interpretation). But the truth is that the more successful your marketing efforts are, this will result in more scrutiny from attorneys who still do not believe you should be marketing in the first place.
  • For lawyers and law firms who are (1) not savvy with marketing or (2) worried about not being liked, you might choose not to advertise. The heat from the “established lawyers” who do not want you fishing in their pond, might be too much. That’s okay if you choose to not advertise. Obviously, this just comes with a trade-off in that it might take a long time to really develop your practice or get to a place where you can help individuals in need of your legal services.

The reality is that lawyer advertising is still a touchy subject among many lawyers. While newer and younger lawyers often take a much more pro-advertising approach — and almost cannot imagine a time where lawyer advertising was not allowed — there are still lawyers who are not happy about the Bates decision more than 40-years later.  Marketing savvy lawyers need to keep this in mind.

If you have any thoughts, feel free to share them below.

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