The Gazette 1982

g a z e t t e

april 1982

The Limits of Lawyer Advertising in America Today

by

R. H. S. Tur Reprinted, with kind permission, from the Journal of the Law Society of Scotland

'It is a mathematical fact that the casting of this pebble from my hand alters the centre of gravity of the universe' — Thomas Carlyle. Recently, that is from 1 st November 1978, the Council of the Law Society of Scotland has relaxed the Practice Rules relating to advertising, allowing that solicitors may advertise when an established business is taken over by new management, or where an entirely new business is established and, in particular: 'Where any practice unit carries on business or proposes to carry on business or establish an office or branch office in an area which in the opinion of the Council is one in which there is an inadequate supply of legal services or where, in the opinion of the council, the availability of that supply is insufficiently known to the pub l i c . . .' (Rule 6). Such businesses established in 'special areas' may advertise their existence and the nature of the legal services offered by way of up to eight separate advertisements in the public Press during a six-month period from the date of the first advertisement. They may be permitted to advertise beyond this 'as the Council may in its sole discretion approve' and 'the content and format of all (Rule 6) advertisements' are subject to prior approval of the Council. Though cautious, this step is to be welcomed. None the less, the Law Society appears quite unready to contemplate the stronger draught of full-blooded price advertising by lawyers of routine services such as exists in America as a result of the Bates case (treated of by your author in 1977 JLSS, 286-292). That decision called forth much adverse criticism, the gravamen being that it would permit all manner of abuses by lawyers cloaking their crude commercialism and obscuring their obnoxious overreaching with the protection granted to speech, including 'commercial speech', by the First Amendment. Thus, Chief Justice Burger seeks to balance the public need for information about lawyers, their work and their fees with the protection of the public from 'the unscrupulous, or the incompetent practitioner anxious to prey on the uninformed'. He suggests that the organised legal profession might announce to the public the probable range of fees in preference to permitting individual lawyers the freedom to advertise their services and their prices. The Chief Justice believes this latter more likely to undermine than to serve the public interest. Mr Justice

Powell is of like mind. He i s ' . . . apprehensive, despite the Court's expressed intent to proceed cautiously that today's holding will be viewed by tens of thousands of lawyers as an invitation — by the public-spirited and the selfish lawyer alike — to engage in competitive advertising on an escalating basis'. He admits that some members of the public might benefit but believes that the risk is that many others will be victimised by simplistic price advertising of professional services which are so diverse and peculiar as to defy realistic price standardisation. Mr Justice Rehnquist, too, is unhappy with the decision in Bates. Apart from the anachronistic view that the First Amendment protects only really important speech, such as the expression of political or religious views and ideals, and not such 'essentially commercial' activities as advertising legal services — an application which demeans the First Amendment — he criticises the decision as offering but 'little guidance' as to the extent or nature of permissible lawyer advertising. The decision is seen as akin to the camel's nose in the tent, the thin edge of the wedge which is a portent of imminent havoc! Indeed, the protection of'commercial' as well as 'political' speech,' an extension of the First Amendment established in Virginia Pharmacy Board v. Virginia Consumer Council 425 us 748 (1976) is seen by Rehnquist as the 'first step down the "slippery slope", the image standardly conjured up by those whose feelings outrun their rational arguments! Thus, a widely canvassed criticism of the Bates decision is that it is insufficiently precise. But this criticism sets too high a standard for any landmark decision. No decision can determine an issue in all directions. Frequently a series of decisions is required fully to work out the implementation of a principle such as freedom of speech in its application, first, to commercial speech generally, and second, to lawyers' price advertising. That is the American way. Your author stated it thus, in the article already referred to: 'In the business of sensitive adjustment of interests, of responding to the requirements of different elements of society and in synthesising opposing tendencies the Supreme Court is truly "supreme". It engages in an on-going dialectical law- making enterprise and not in a once and for all determination of the law.' Law is thus developed pragmatically, case by case; empirically, in the light of experience. Consequently, one would expect cases 87