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Advertising in the Legal Profession
Transcript of Advertising in the Legal Profession
"The belief that lawyers are somehow above "trade" is an anachronism, and for a lawyer to advertise his fees will not undermine true professionalism." 433 U.S. 350 (1977) 1982 In re R.M.J. 455 U.S. 191 (1982) "Although the States retain the ability to regulate commercial speech, such as lawyer advertising that is inherently misleading or that has proved to be misleading in practice, the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests." 1983 American Bar Association adopted the Model Rules of Professional Conduct and urged their adoption by state licensing authorities. Model Rules 7.1-7.6 dealt with Information About Legal Services. Rule 7.2 Advertising
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.
(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;
(3) pay for a law practice in accordance with Rule 1.17; and
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. 1985 Zauderer v. Office of Disc. Counsel
471 U.S. 626 (1985) "The speech at issue is "commercial speech" entitled to First Amendment protection. Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." 1988 1980
Central Hudson Gas & Electric Corp. v. Public Service Commission
447 U.S. 557 (1980)
Four part test for determining when restrictions on commercial speech violated the First Amendment of the United States Constitution. Is the expression protected by the First Amendment? For speech to come within that provision it must concern lawful activity and not be misleading.
Is the asserted governmental interest substantial?
Does the regulation directly advance the governmental interest asserted?
Is the regulation more extensive than is necessary to serve that interest? Shapero v.Kentucky Bar Assn.
486 U.S. 466 (1988) State may not, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. Such advertising is constitutionally protected commercial speech, which may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Shapero v. Kentucky State Bar, 486 U.S. 466 (1988), struck down a Kentucky rule identical to the original version of Rule 7.3. The Court held that the rule's prohibition of personalized direct mail to persons "known to need legal services of the kind provided by the lawyer in the particular matter" violated the commercial speech limitations of the First Amendment. In February 1989, Rule 7.3 was substantially amended to conform to the Shapero case. Rule 7.4 was amended in August 1992 to bring the rule in compliance with Peel v. Attorney Registration and Disciplinary Comm'n, 496 U.S. 91 (1990), holding that states may not constitutionally impose a blanket prohibition on a lawyer's truthful communication that the lawyer is certified as a specialist by a bona fide organization. Present Almost all states have adopted some version of the ABA's Model Rules, save for California. What is so special about the legal profession? Nothing.
Central Hudson 4 part test still applies
Simply greater weight of state interest
to protect consumers of legal services Why?
Protection of free flow of information for
the legal market provides consumers
with the information necessary to acquire
legal services at a low cost of time and
State must protect interest in public
not being mislead or deceived by
advertising of legal services. Matters
within realm of legal industry can
have greater consequences than
other common transactions. Who Is the Victim? Most advertised legal services are for tort
lawyers specializing in personal injury & medical malpractice, or product liability cases such as
harmful prescription drug side effects Consumers are typically already injured and
possibly desperate for relief. Less likely to
by skeptical of ad messages. Also, may not
possess any other appropriate method
for acquiring information on legal service
providers. Has it gone too far?