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Dean's Address
Lawyer Advertising and
Specialty Certification
By Mortimer A.
Rosecan
On June 27, 1977, the legal
profession was stunned by the decision of the United States
Supreme Court in Bates v.
State Bar of Arizona.1
As you undoubtedly know, this decision held that lawyer advertising
in newspapers of the prices at which "routine" legal
services would be performed was a form of commercial speech
entitled to First Amendment protection and, therefore, could not
be subjected to blanket suppression by the states. This case
undoubtedly has forged a radically new ethical concept governing
the practice of our profession. To put this concept into
perspective, a short history of lawyer advertising may be
helpful.
The prohibition against
advertising began largely as a rule of etiquette dating back to
the Inns of Court in London.2
The young men who came to London in the early days to study at the
Inns were generally the sons of well‑to‑do parents
who did not need to earn a living and looked down upon the
commercial practices of common tradesmen. They viewed themselves
as an elite fraternity whose members participated in a
profession ‑ not a business ‑ and they cherished
this class distinction.3
In the newly established
democratic nation across the Atlantic, where all men were deemed
to be created equal, no form of class distinction was tolerated.
For a long time, no bar associations were organized because it
was feared that they might lead to the formation of a special
class.4
In fact, in many states, the practice of law was not
restricted to lawyers;5 and the right
of anyone to do so was considered inalienable. It was in this
atmosphere that Abraham Lincoln advertised his law practice in
the newspapers in and around Springfield, Illinois, in 1838.6
The first legal Code of
Ethics in this country was adopted by Alabama in 1887 and it
became the model that was followed by the other states.7
The Alabama Code specifically provided that "[n]ewspaper
advertisements, and circulars,. . . tendering professional
services to the general public, are proper; but special
solicitation of particular individuals to become clients ought
to be avoided. . . ."8
In 1908, the American Bar Association promulgated its
Canons of Professional Ethics. Canon 27, contrary to the Alabama
Code, declared that solicitation of business by circulars or
advertisements was unprofessional, defied the traditions, and
was intolerable.9 If this seems to be a throwback to
the etiquette of the Inns of Court, it may have been justified
on the grounds that, in 1908, advertising was unnecessary
inasmuch as most lawyers were general practitioners in small
communities where people knew each other.10
In 1969, the ABA sought to
update the ethical standards for lawyers when it adopted the
Model Code of Professional Responsibility Disciplinary Rule DR
2‑101 of this Code absolutely banned virtually all forms
of advertising and solicitation by lawyers.11 I With
but a few insignificant variations, almost all American
jurisdictions adopted the Model Code.
After the Court in Bates
struck down the Model Code's blanket ban on advertising, an ABA
Task Force advanced alternative Proposals A and B in an effort
to bring the Code into compliance with that decision.12
Proposal B confined itself
to a general prohibition of misleading advertisements without
detailing specific items approved for advertising.13
Proposal A represented a more conservative approach and listed
twenty‑five items, commonly contained in
"reputable" law lists, that an advertisement could
include.14
Under both proposals, the
gate to public advertising was opened, but in Proposal A its
hinges were adjusted so as to regulate tightly both the kind and
amount of information that was allowed to flow to the public.
The House of Delegates
adopted Proposal A.15 It amended DR 2‑101 to
permit a lawyer to advertise one or more fields of law in which
he practiced, or that his practice was limited to one or more
fields of law, or that he specialized in a particular field of
practice.16 But, a string was attached that tied what
was permitted to what was authorized by section DR 2‑105.
Under its provisions, the fields of law an attorney could
advertise were subject to the designations authorized and
approved by the state agency having jurisdiction of the subject
under the state law"; and only lawyers who were certified
as specialists in a particular field of law by the appropriate
state authority could hold themselves out as such to the public.17
Thus, two novel and
far‑reaching concepts became a part of Codes of Ethics:
field of practice ads were sanctioned; and the recognition of
specialists was put under state control. As we shall see later
on, these concepts have created more problems than they have
solved.
Three years after Bates,
the United States Supreme Court again dealt with state
regulation of protected commercial speech in Central
Hudson Gas & Elec. Co. v. Public Serv. Comm'n.18
'I In that case, the Court established a four‑part
test for regulation of commercial speech. Pertinent to this
discussion, the test included the requirement that state
regulation be no more extensive than necessary to serve a
substantial governmental interest.19
On the heels of Central
Hudson, the Supreme Court decided the case of R.M.J.20 This case involved a St. Louis lawyer who
had been disciplined because his advertisements in telephone
directories listed areas of practice in language different from
that specified by the state authority.
In reversing the
disciplinary sanction imposed on R.M.J., the Supreme Court
reaffirmed that "truthful advertising related to lawful
activities" is protected by the First Amendment; and left
no doubt that Central
Hudson applied to lawyer advertising when it emphasized that
restrictions upon the advertising of professional services
"may be no broader than reasonably necessary to prevent
deception."21
Prior to delivery of this address, the Supreme Court
had not again dealt directly with lawyer advertising.22
The guidelines set by the Supreme Court may be summarized as
having established that:
1. Truthful advertising relating to lawful activities
is entitled to First Amendment protection.
2. If the method or content
of the advertising makes it inherently misleading, it may be
restricted.
3. If otherwise truthful
advertising proves itself misleading in fact, it too can be
restricted.
4. Absolute prohibition may
not be placed on material which can be presented in a truthful
way.
5. Truthful advertising may
be regulated if the state demonstrates a substantial state
interest in the regulation, if the regulation furthers that
interest, and is no more restrictive than is necessary to
further that interest.23
The decisions in Central
Hudson and R.M.J. exposed the constitutional infirmity of the Model Code, even
as revised by the provisions of Proposal A. Accordingly, in
August 1983, the ABA adopted the Model Rules of Professional
Conduct. Again, field of practice advertising is sanctioned, and
a lawyer cannot advertise that he is a specialist except as
provided by the proper state authority.24
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