Concept
Constitutional Roots
Permitted means of advertising and payment for recommendations
Constitutional Roots
Model Rule 7.2(a) lets a lawyer communicate information about the lawyer's services through any media.1 That breadth has a constitutional source. Until the Supreme Court decided Bates in 1977, many states, Missouri among them, placed an absolute prohibition on lawyer advertising.2 The any-media rule is what remains after the First Amendment removed the justification for those bans. This unit asks how much room the Constitution leaves a state that wants to restrict what lawyers say about their services.
The answer comes from the commercial speech doctrine. Commercial speech by lawyers receives a limited but meaningful level of protection under the Free Speech Clause.3 That protection sets the outer limit on professional regulation. Habit and tradition are not an adequate answer to a constitutional challenge,4 so a rule that burdens truthful advertising needs a better justification than the profession's discomfort with promotion. A rule aimed at false or misleading messages stands on firmer ground, because states are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading.5 For that reason, a question about a state's restriction on lawyer advertising can raise a constitutional issue as well as an ethics issue.
The doctrine developed in two stages, and the subsections below follow them. Bates brought lawyer advertising under the First Amendment and ended the blanket ban. R.M.J. and Zauderer then turned that breakthrough into a test for deciding whether a particular restriction survives.
The Bates Decision
In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), two lawyers ran a practice built on low-cost routine matters. After two years they concluded that the practice could not survive unless the availability of low-cost legal services, and in particular their fees, was advertised.6 They placed a newspaper advertisement offering "legal services at very reasonable fees," with specific prices for divorce, adoption, bankruptcy, and change of name.7 A change of name cost $95 plus a $20 filing fee.8 Arizona's disciplinary rule forbade lawyers to publicize themselves through newspaper and magazine advertisements, radio and television announcements, directory display advertisements, and similar means, and the lawyers did not dispute that their ad violated it.9 The Arizona rule was the mirror image of Model Rule 7.2(a). The modern rule opens every medium to a lawyer's communication about services, while the Arizona rule closed the newspaper, broadcast, and directory channels.10 A disciplinary committee recommended suspending each lawyer for not less than six months, and the Board of Governors of the State Bar recommended one week each, to run consecutively.11
The Court framed the constitutional question narrowly. It asked only whether the state may prevent the publication in a newspaper of the lawyers' truthful advertisement concerning the availability and terms of routine legal services.12 Its answer was no: "We rule simply that the flow of such information may not be restrained."13 Two features of the ad carried the result. It was truthful, and it described services whose availability and price a consumer wants to know before choosing a lawyer. The state therefore could not rest the ban on its ordinary interest in preventing deception and had to defend it on other grounds.
Arizona offered several other grounds, and the Court found that none justified the ban as applied to this advertisement.14 It questioned the assertion that lawyer advertising would diminish the reputation of attorneys, refused to give weight to professional etiquette, and rejected the argument that lawyer advertising "inevitably will be misleading."15 Habit and tradition, it added, are not an adequate answer to a constitutional challenge.16 On the claim that advertising would stir up litigation, the Court could not accept that a person is always better off suffering a wrong silently than redressing it by legal action.17 On the economic claims, it reasoned that the ban isolates lawyers from competition, makes the lowest-cost seller of acceptable ability harder to find, and reduces the incentive to price competitively.18 Without advertising, a new lawyer must wait for community contacts to develop, so the ban also perpetuates the position of established lawyers. The Court thought it entirely possible that advertising would reduce, not advance, the cost of legal services to the consumer.19 Finally, it considered the argument that a lawyer who advertises a package of service at a set price will provide that standard package regardless of whether it fits the client's needs, and it did not treat that argument as justifying the ban.20
The five rejected grounds share a pattern. The ban was defended as protection for the public and the profession, yet the Court found that it hurt the consumers it claimed to protect. Price information is how a person with a routine problem finds the lowest-cost seller of acceptable ability, and a rule that suppresses truthful information about a lawful service removes that tool.21 That mechanism is what the First Amendment holding rests on.
The Court was equally careful to say what it had not decided. It called the issue before it a narrow one and set aside advertising claims about the quality of legal services, which are probably not susceptible of precise measurement or verification and might be deceptive or misleading.22 It also set aside in-person solicitation, whether at the hospital room, the accident site, or any other situation that breeds undue influence, because that kind of activity might pose dangers of overreaching and misrepresentation that newspaper announcements do not.23 It added that reasonable restrictions on the time, place, and manner of advertising remain possible, that advertising for illegal transactions may be suppressed, and that the special problems of the electronic broadcast media warrant special consideration.24 Each reservation corresponds to a boundary taught later in this chapter. Quality claims raise the truthfulness question, and in-person solicitation falls under a different rule from the any-media permission.
A common exam error is to read the decision as protecting any advertisement a lawyer cares to publish. The ad in the case listed fees for named routine services, which a reader can check against what the lawyers actually charge.
The Court set quality claims aside expressly, noting that they are hard to verify and may mislead, so the decision gives that lawyer no shelter. Whether the ad is permissible turns on the truthfulness question taken up later in this chapter.25 A lawyer who walks into a hospital room to offer services is likewise outside the decision, because the Court named that very setting as one it was not resolving.26 A lawyer who runs a truthful newspaper ad listing a fee for a routine service stands exactly where the Bates lawyers stood, and the state may not discipline that lawyer for the ad.
R.M.J. and Zauderer
Bates decided only that a state could not stop one truthful price advertisement, so the Court still had to say how much regulation of lawyer advertising survives. The first answer came in In re R.M.J., 455 U.S. 191 (1982), which asked whether Missouri's revised advertising rules conformed to the requirements of Bates.28 After Bates invalidated an absolute prohibition, Missouri's supreme court revised its Rule 4 into a compromise that its drafting committee described as an effort to "strike a midpoint between prohibition and unlimited advertising."29
The revised rule regulated content and audience. It permitted a dignified "brief professional announcement card" stating new or changed associates or addresses, a change of firm name, or similar matters, but it did not permit a general mailing. The cards could go only to "lawyers, clients, former clients, personal friends, and relatives."30 The rule also limited a lawyer to approved information and prescribed wording, including the wording a lawyer could use to describe fields of practice.31 The lawyer in the case, R.M.J., began practice as a sole practitioner in St. Louis in April 1977. He mailed announcement cards to a selected list and placed newspaper and yellow-pages advertisements to reach a wider audience.32
A rule built as a closed list of permitted content and approved wording is the reverse of Rule 7.2(a), which opens every medium and leaves the regulation to the message.33 The Iowa disciplinary rule reproduced in the appendix to Bishop v. Committee on Professional Ethics and Conduct of the Iowa State Bar Association shows the same impulse. It required lawyers to avoid subjective characterizations of their fees, such as "cut-rate," "lowest," "reasonable," and "special," and to avoid signs and symbols such as logos, trademarks, graphics, design work, and pictures.34 The commercial speech test exists to evaluate rules of this kind.
In R.M.J. the Court used the analysis from Central Hudson Gas & Electric Corp. v. Public Service Comm'n, a four-part inquiry that it quoted and applied to professional advertising.35 A later decision restated the approach as settled. States may prevent the dissemination of commercial speech that is false, deceptive, or misleading, or that proposes an illegal transaction. Commercial speech that is not false or deceptive and does not concern unlawful activity may be restricted only in service of a substantial governmental interest and only through means that directly advance that interest.36 The Central Hudson formulation adds a final requirement: the regulation must be no more extensive than necessary to serve the interest.37
A restriction on protected speech survives only if it clears steps two through four, and once the speech is shown to be truthful the state carries the burden on them. Where the statements were not false or deceptive, the Court's decisions placed on the state the burden of establishing that the prohibition directly advances a substantial governmental interest.38 Legal services change how the steps operate in one respect. The Central Hudson formulation is applied to professional advertising with the understanding that professional services give more opportunities to mislead and confuse than standardized products do.39 A shopper can inspect a toaster, while a client usually cannot judge a lawyer's skill until the work is done, so a statement that sounds informative can mislead more easily. That difference leaves states real room to regulate, but the room has a limit. A flat ban removes accurate speech along with misleading speech, whereas a state can identify unfair or deceptive legal advice without banning the advice entirely, just as the Federal Trade Commission identifies deceptive practices in the marketing of products.40
The Missouri rule shows the failing side of steps three and four. Later cases record that rules preventing attorneys from using non-deceptive terminology to describe their fields of practice are impermissible.41 A rule that confines a lawyer to prescribed wording treats every accurate alternative description as forbidden. It silences truthful speech that no interest in preventing deception requires the state to silence, and a rule aimed only at misleading descriptions would serve the same interest while leaving accurate speech alone.
In Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio the same test met an actual advertisement. An Ohio lawyer ran a newspaper ad aimed at women injured by the Dalkon Shield. It carried a drawing of the device and advice that readers with a similar experience should not assume it was too late to take legal action. It drew well over 200 inquiries, and he filed suit for 106 of the women who contacted him.42 The disciplinary complaint alleged no falsity or deception other than the ad's omission of information about the contingent-fee arrangement. Disciplinary counsel stipulated that the information and advice about Dalkon Shield litigation was not false, fraudulent, misleading, or deceptive, and that the drawing accurately represented the device.43
That stipulation carried the case past step one, and the state then had to justify the discipline under the remaining steps. Ohio's best authority was Ohralik v. Ohio State Bar Association, which upheld a ban on in-person solicitation. The Court answered that Ohralik rested on the substantial differences between face-to-face solicitation and the advertising allowed in Bates. In-person solicitation is rife with possibilities for overreaching, invasion of privacy, undue influence, and outright fraud, and it is not visible or otherwise open to public scrutiny.44 A printed advertisement has none of those features, because a reader can set it aside and anyone can examine it. The holding was that an attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive advice regarding the legal rights of potential clients.45 The same separation between the printed page and the live approach sends in-person contact to Rule 7.3 rather than Rule 7.2(a), a boundary taken up later in this chapter.
A dissent in Shapero v. Kentucky Bar Association applied the same four-part test to lawyers. It argued that states should have considerable latitude to ban advertising that is potentially or demonstrably misleading, as well as truthful advertising that undermines the substantial governmental interest in promoting high ethical standards in the legal profession.46 That position is a dissent and does not state the law, but it marks where disputes arise. One is how much weight a state's interest in professional standards carries at step two. The other is whether a potentially misleading ad is handled at step one or by a narrower rule at step four.
A second common exam error is to treat the word "truthful" as ending the analysis in either direction. A truthful ad is not immune from regulation, since a state may restrict it when it shows a substantial interest, a restriction that directly advances that interest, and a rule no broader than necessary. A false or misleading ad receives no protection from these decisions at all, because the decisions protect only speech that is truthful and non-deceptive.