The Beginning of Legal Advertising – Bates v. State Bar of Arizona

Bates v. State Bar of Arizona is the United States Supreme Court case that declared an outright ban on legal advertising unconstitutional. Before Bates was decided in 1977, the American Bar Association (ABA) pushed states to adopt rules of professional conduct that prohibited nearly all forms of legal advertisement, largely because it considered legal advertising to be unprofessional, and cast the noble profession of the law in a sour light. The result of the advertising ban was a legal field that was difficult for new practitioners to break into, and where finding new clients was more about luck, than skill.

Then, in 1976, two Arizona attorneys built a law firm based on representing clients in adoptions, bankruptcies, and uncontested divorces who were low-income, but still not eligible for legal aid services. This was a high-volume, low-fee model, and the attorneys quickly realized that they needed to reach as many people as possible for their firm to stay afloat. Even though they were aware of the Arizona disciplinary rule that explicitly prohibited them from taking out newspaper ads stating their prices, that’s exactly what they did.

The state bar took disciplinary action, and the attorneys were sanctioned. After losing in the Supreme Court of Arizona, the attorneys appealed to the Supreme Court of the United States, claiming that the rules against advertising violated the Sherman Antitrust Act, as well as their free speech rights under the First Amendment.

Blackmun wrote Bates, prohibiting bans on attorney advertising

Justice Blackmun wrote the majority opinion. While he dismissed the Sherman Act claim, he sided with the attorneys on their First Amendment arguments, ruling that an outright ban on attorney advertising was an unconstitutional violation of the First Amendment. Relying heavily on precedent that allowed pharmacists to advertise their prices, the Court ruled that attorneys had the First Amendment right to their own commercial speech, as well.

The defendant bar association raised numerous arguments. They said that “advertising will bring about commercialization, which will undermine the attorney’s sense of dignity and self-worth.” They said that advertisements for legal services would be “inherently misleading” because of their “individualized” nature, and would make attorneys deliver a “standard package” of legal work, regardless of their client’s needs. They said that it would “have the undesirable effect of stirring up litigation,” and would increase the cost of practicing law, which would result in higher fees. Finally, they said that a complete ban was easier to enforce.

Justice Blackmun was left unpersuaded, and ruled that an outright ban on attorney advertising was an unconstitutional violation of Free Speech.

The Supreme Court’s decision in Bates opened up the opportunity for law firms nationwide to explore the possibility of advertising their services to the public, an essential aspect of expanding a client base and providing quality legal representation to those who need it most.

Since Bates, though, advertising has drastically evolved. Taking out a newspaper ad targets an incredibly broad, uninterested audience. Developing a solid website and optimizing it for specific searches, on the other hand, targets your message to those who are already looking for it. Myers Freelance helps to build your website by filling it with quality content, geared to improve its prominence in web searches. Take a look at what we do, to learn more, or contact us online for a free consultation.

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