The Gazette 1978

Solicitors to Solicit? John F. Buckley, Solicitor

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The decision of the Examiner of Restrictive Practices to investigate the restrictions on advertising imposed on Solicitors in the Republic has focussed attention on recent developments in the United States and Great Britain where similar restrictions have been condemned by very different bodies. The United States Supreme Court and the U.K. Monopolies Commission have respectively held that the restriction on advertising offended against the protection of freedom of speech contained in the First Amendment to the U.S. Constitution and that the monopoly situation which exists in favour of Solicitors in England and Wales involving restrictions on the advertising of Solicitors' Services operates, and may be expected to operate, against the public interest. Before considering what precise relevance these recent developments have for our present position it may be useful to enquire as to how these decisions came to be taken and the reasoning behind them. The U.S. Supreme Court came to consider the question of advertising following a 1976 decision, which held that consumers had "a right to receive price advertising of prescription drugs", in a case in which John R. Bates and Van O'Steen challenged the decision of the Slate Bar of Arizona that an advertisement placed by Messrs. Bates and O'Steen in a newspaper called "The Arizona Republic" (see insert) violated the total ban on advertising by private attorneys contained in Disciplinary Rule 2- 101(B) of the American Bar Association's Code of Professional Responsibility adopted by the Supreme Court of Arizona as Rule 29 (a). The challenge was based on two grounds — (i) that the ban violated the freedom of speech provisions of the First Amendment and (ii) that the ban violated the Anti Trust legislation (the Sherman Act). The second ground was unanimously rejected by the Court because the fact that the regulation was made by the State Supreme Court made it State action which is exempt from Sherman Act control. (An indication that this part of the decision was solely based cn that technical ground was given by the Courts previous ruling in Coldfarb v. Virginia Bar holding that a County Bar Associations minimum fee-schedules did ofTend against the Sherman Act). The U.S. Supreme Court in Bates and O'Steen rejected the arguments against advertising, advanced on behalf of the Arizona Bar as follows: (1) Its adverse cfTect on professionalism on the grounds that the relationship of lawyer and client is a commercial one; the belief that lawyers are "above" trade has become an anachronism and the foundation for the restriction on advertising has crumbled. (2) The inherently misleading nature of a lawyer advertising on the ground that only the routine services will lend themselves to advertising. (3) The adverse effect on the administration of justice in the "stirring up" of litigation — on the ground that the Court would not accept the notion that it is always better for a person to suffer a wrong silently than seek redress by legal action.

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