Dean's Address

Advertising experts will tell you that an ad which lists only two or three kindred areas of practice is far more likely to convey to the public an impression of expertise in those areas than the 'laundry list' referred to by Judge Boyle.⁵²

Frequently, in those ads upon which our survey focused, the advertiser's practice is described as having "emphasis in" or being "concentrated in" or "limited to" the fields of practice stated. Depending upon the ethical code of a given state, the use of these or similar terms may or may not be permitted. Even when they are prohibited, some unscrupulous lawyers take advantage of a state's flaccid enforcement. The comment under Rule 7.4 states that these terms have acquired a secondary meaning implying formal recognition as a specialist and are misleading.

Many of the field of practice ads are embellished with the flair of a carnival huckster. In addition to trumpeting that the advertiser is a trial lawyer experienced in handling personal injury cases, they tell the reader things like this:

"We win substantial out‑of‑court settlements for over
90% of our clients."
"No fee unless the case is successfully concluded."
"Get the best lawyer for the best result."
"An established reputation for effective, aggressive, trial court representation regardless of complexity, or adverse evidence."
"Medical care arranged on credit."
"Accident litigation specialists for the injured."
"Personal Injury victims ‑ talk to us first."

My knowledge of radio advertising is limited to my city of St. Louis. You probably have some idea of what is going on in your own communities. R.M.J. attests that Missouri takes a narrow view of lawyer advertising, but it has been unable to control the radio ads in St. Louis. I can tell you that lawyers bordering on incompetence are all but promising the injured multi‑million dollar results.

Up to now, I have attempted to review the history and nature of lawyer advertising side‑by‑side with the governing codes of ethics and the revisions of the codes to comply with Supreme Court decisions. I have touched upon the origin and growth of prestigious organizations that limit membership to authentic de facto trial specialists, and I have recounted the failures to give these specialists de jure recognition. Lastly, and most important of all, I have given you some idea of the deceptive ness of field of practice advertising as it is presently conducted.

The linch‑pin upon which the Bates decision is rested is the case of Virginia Pbarmacy Board v. Virginia Citizens Consumer Council, Inc., decided the term before.⁵³ There, for the first time, the Court held that the First Amendment precludes certain forms of regulation of even purely commercial speech. In that case, a pharmacist advertised the prices at which he offered to sell certain standardized prescription drugs. The parties stipulated that about 95% of all prescriptions were filled with dosage forms prepared by the manufacturer.⁵⁴

In holding that such price advertisements came under the protection of the First Amendment, the Court pointed out that the protection was to be enjoyed both by the advertiser and the consumer of prescription drugs.⁵⁵ Apprehension that First Amendment protection for advertising on the part of members of a state‑regulated profession might be extended into the legal profession was seemingly allayed when the Court stressed that its opinion did not reach other professions: "Physicians and lawyers, for example, do not dispense standardized products; they render personal services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising."⁵⁶

Then came Bates ‑ and with it came lawyer advertising of so‑called routine legal services."⁵⁷ The 5 to 4 majority decision defined routine services in these words: "The only services that lend themselves to advertising are the routine ones: the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, arid the like. . . ."⁵⁸

The majority believed the case was controlled by the Court's decision in Pharmacy "because the conclusion that Arizona's disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it."⁵⁹

The Bates Court did not break with respected tradition for the benefit alone of lawyers who wanted to advertise. Its primary objective was to provide the public with enough accurate information to make an intelligent decision in the selection of a lawyer. The Court's opinion is sprinkled with quotations from Pharmacy which underlie the rationale of both cases, e.g. "assuring informed and reliable decision making";⁶⁰ people will perceive their own best interest if only they are well enough informed";⁶¹ and "the preferred remedy is more disclosure, rather than less."⁶² Here too, as in Pharmacy, the effect of suppression of advertising on the consumer was an important consideration.⁶³

The majority opinion met with vigorous dissents by the Chief justice and by justice Powell with whom Justice Stewart joined.⁶⁴ The dissenters tried to warn the majority that there was no white line dividing "routine" from "unique" legal services .⁶⁵ They emphasized that price advertising would not give the public an accurate picture upon which to base the selection of an attorney because both lawyers and clients can rarely know in advance the nature and scope of the problems that may be encountered even in the handling of matters that the majority deemed "routine."⁶⁶

Chief Justice Burger believed that, in the context of legal services, price advertising "could become a trap for the unwary ⁶⁷ and Justice Powell noted: "It has long been thought that price advertising of legal services inevitably will be misleading . . . . “⁶⁸

Justice Powell feared that selfish lawyers would engage in competitive advertising of a nature that may victimize some members of the public;⁶⁹ and the Chief Justice warned that the public would need protection from "the unscrupulous or incompetent practitioner anxious to prey on the uninformed."⁷⁰

Lastly, justice Powell underscored that "the very reasons that tend to make price advertising of services inherently deceptive makes its policing wholly impractical."71 The Chief Justice disputed the Court's "unsupported assumption”, that price advertising would be confined to "routine" services or that the bar and the courts will be able to protect the public when "the existing administrative machinery...has proved wholly inadequate to police the profession effectively."⁷²

These Cassandra‑like prophecies of the Bates dissenters have been fulfilled with a vengeance! The field of practice advertising I have described could not be farther from the advertising of "routine" legal services; and, for one or another of the reasons to which I have alluded, the bar and the courts have not protected the public from the unscrupulous practitioner anxious to prey on the uninformed." What a sorry state of things we tolerate when those whose claims constitute the bulk of civil litigation are allowed to be lured into the hands of lesser competent lawyers by ads that carry the seeds of deception.

I suggest that the Supreme Court of the United States has not directly sanctioned field of practice advertising. Unfortunately, some careless observers have misread Bates as requiring states to permit it.⁷³ But a careful reading of that case shows that the Court specifically stated that the only "services that lend themselves to advertising are the routine ones."⁷⁴ The white line separating "routine" from unique legal services is plainly visible when the skill required to prove liability and damage is compared with the skill required to handle matters such as "the uncontested divorce, the simple adoption .... and the like." Moreover, field of practice advertising was given birth after Bates was decided when the ABA adopted proposal A and revised the Model Code to include it.⁷⁵ The lawyers who drafted this Code, and its successor, would have been well advised to consult with advertising experts who would have told them that an advertisement limited to one particular area of practice negated the injunction against advertising that implies specialization or expertise.

I suggest also that R.M.J. did not sanction the kind of field of practice advertising covered in our survey In that case, the Court had before it an ad that listed 23 areas of law ranging from adoption to zoning. There was no contention that such an ad had a potential to mislead the public, and, of course, the Court did not address that non‑extant issue. The only issue before the Court was that Missouri acted arbitrarily in insisting that R.M.J. use its precise terminology when listing these areas of law. I emphasize that Missouri had sanctioned the advertising of areas of law when it adopted the Model Code and the R.M.J. Court was neither requested to nor could it declare that a state may not constitutionally do so. I submit that R.M.J. did not reach the question whether a state must sanction field of practice advertising.⁷⁶

Those observers who would read Bates and R.M.J. as requiring states to permit field of practice advertising take an Olympian leap from the fungible unit price advertising of Pharmacy, through the price advertising of routine legal services in Bates, to advertising whose sole purpose is to cause the consumer to believe that the advertiser is a specialist in a given area of the law. These observers forget that, in both Pharmacy and Bates, providing consumers with accurate and useful information was the raison detre for extending First Amendment protection to purely commercial speech. Those decisions cannot be read to stretch the shade of the First Amendment to cover the field of practice advertising shown in our survey of telephone directories. Consumer disinformation in the name of a lawyer's right to puff his own abilities is the polar opposite of the Pharmacy, Bates, and R.M.J. rationales and defies the repeated admonition of those cases that "advertising that is false, deceptive, or misleading of course is subject to restraint."

What can we do about this intolerable state of lawyer advertising? The decision of the Court in R.M.J. delivered by Justice Powell, contains a footnote which states:

"The commercial speech doctrine is itself based in part on certain empirical assumptions as to the benefits of advertising. If experience proves that certain forms of advertising are in fact misleading, although they did not appear at first to be 'inherently' misleading, the Court must take such experience into account."⁷⁷

Thus, we are told the status quo will be changed if empirical experience shows the need to do so.

No one seriously doubts that the public turns mostly to the telephone directory for assistance in selecting a lawyer. It is easy to use, accessible to everyone, and a virtual necessity if a lawyer is to be called either for inquiry or appointment. And it is a fact that field of practice ads in the area of personal injury far exceed the aggregate of all the other directory ads.

Reliable studies should be made to gauge the extent to which such field of practice advertising influences the public in selecting an attorney. Empirical evidence should be gathered of the degree to which field of practice ads lead the public to believe that the advertiser is a specialist or is uniquely qualified. Research should be done to measure the qualifications, or experience, of the field of practice advertisers. As many of these things should be done, and probably more, as resources will permit.

While this address was in the draft stage, I learned that the Missouri Bar, in conjunction with the University of Missouri School of journalism, is planning a study to measure the cost effectiveness of telephone directory advertising. If it is done, it will, of course, be confined to Missouri. No other bar association, including the ABA, has undertaken a survey of lawyer advertising .⁷⁸

Our Academy sponsored the IATL Foundation, and gave it its name, anticipating and hoping that it would someday be able to initiate a project that would render a sorely needed service to our profession and to the public. So far, it has lacked the wherewithal to launch such a meaningful project. But what a glorious beginning it would be for the Foundation to initiate and fund a survey of lawyer advertising such as I have mentioned. If your Foundation can take the leadership in such an acutely needed project, the resultant armament of statistics would be of immeasurable service to courts and bar committees when dealing with lawyer advertising.

My hope is that such empirical evidence would be used someday to convince the United State Supreme Court: that all lawyer advertising carries within it the seeds of deception; that it should reverse the one-vote majority in Bates; and that it should return to lawyers and judges of each state the right to decide whether to permit advertising at all. The overruling of Bates would reverse the downhill slide of the practice of law toward commercialism, begin the climb back up to professionalism, and burnish both our self‑esteem and public image.

But even if this personal hope is not shared by all, or is unattainable, objective proof that field of practice advertising inevitably misleads the public would, at the very least, provide courts and bar associations with a potent weapon to end this evil and protect the injured from the "incompetent practitioner anxious to prey on the uninformed."

I respectfully submit that the yellow pages of telephone directories in every city stand mute witness to the fact that the injured obtain less competent representation as a result of the deception inherent in field of practice advertising. Empirical evidence of experience with such advertising will give voice to this deception. In the words of justice Powell, "the Court must take such experience into account."

If we do not protect the injured, who will? The challenge is ours for the taking.

Footnotes