Lawyer advertising turns most people off. That includes many members of the legal profession itself. Ads that include boxing gloves, horses, tigers and big trucks may be mildly amusing the first time you see them, but add little to the image of the legal profession and nothing to the dignity of law. Those of us who still regard law as a gift of God that allows humans to live peaceably together have difficulty seeing how the commercial advertising of legal services as a commodity can be justified. If ever I appear in a legal ad on TV, I may be the truck driver in the Alabama Hammer’s commercial.
So why doesn’t the State regulate legal advertising? After all, law is authenticated and ultimately enforced by the state. That is the “commodity” that attorneys deal with in their practice, so why shouldn’t the practice of law, including advertising, be closely regulated. Is the skill that is required for applying law to divorces, child custody, wills, personal injuries and other litigation just another commodity like a bag of sugar or sack of potatoes? To engage in the legal profession requires rigorous education. Admission to the bar, generally speaking, is regulated by the states.
Until the 1960s, regulation of law practice was almost completely a State function. The states may have exercised questionable judgment when, as in the State of Alabama, the regulation of the profession was largely delegated to the Bar Association itself, which operates generally under the authority of the State Supreme Court. People in the profession are still regulating themselves.
The 1960s brought changes. Public interest law firms emerged, to facilitate and bring about needed social change. The “Trial Lawyers” Association emerged. A more accurate description would have been “Plaintiffs’ Lawyers,” because that association promotes the interest of the lawyers who bring lawsuits, rather than defending them. Plaintiffs’ lawyers serve a very useful and necessary function, and must be able to bring their services to the attention of prospective clients.
The image of the legal profession has never been good, and seldom been accurate. The pre-Civil War mythology of the rugged individualist lawyer has persisted, Atticus Finch perhaps being a poignant 20th-century example. However, the rugged individual lawyer is insignificant in the United States. The Civil War assured the dominance of industry over the agrarian economy. The Industrial Revolution happened. Large law firms emerged to serve the needs of the industrial economy. Firms such as a Cravath firm in New York hired the top students graduating from the top law schools to represent corporate America in the Courts and legislative halls. They had open lines of communication with the big business and insurance companies that they represented. Selling their services was totally different from sales by other lawyers who had to wait for the client to show up at their door. The pre-60s “legal ethics” served the interest of corporate America and the large law firms very well, but were a major problem for small non-corporate firms who represented plaintiffs.
The changes that occurred in the 60s brought Federal intervention. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) was the U.S. Supreme Court decision that began deregulation. The United States Supreme Court found that the schedule of minimum charges utilized by the Virginia Bar Association violated the Sherman Antitrust Act. State regulation of the legal profession came into question, despite the need for regulation, and the nature of what was being regulated.
Then, in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the United States Supreme Court held that lawyer advertising is commercial speech protected by the First Amendment. The Fourteenth Amendment applies the First Amendment to States. Because of that decision, the power of States to regulate lawyer advertising is very limited.
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
States do most of what they do through laws and regulations. The court system is a part of State government, and lawyers are described as “officers of the court.” To say that States can’t regulate the practices used by lawyers who are specially licensed to peddle the State’s power doesn’t make good sense. Law, and the ability of states to “promote domestic tranquility,” is adversely affected by advertising that makes law and lawyers look silly.
However, returning to the “legal ethics” that sheltered big business and its lawyers will not solve the problem. Creative regulation that will empower lines of communication between members of legal profession and the people who need their services is desperately needed. The internet could play a vital role.