Bates v. State Bar of ArizonaAnnotate this Case
433 U.S. 350 (1977)
U.S. Supreme Court
Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
Bates v. State Bar of Arizona
Argued January 18, 1977
Decided June 27, 1977
433 U.S. 350
APPEAL FROM THE SUPREME COURT OF ARIZONA
Appellants, who are licensed attorneys and members of the Arizona State Bar, were charged in a complaint filed by the State Bar's president with violating the State Supreme Court's disciplinary rule, which prohibits attorneys from advertising in newspapers or other media. The complaint was based upon a newspaper advertisement placed by appellants for their "legal clinic," stating that they were offering "legal services at very reasonable fees," and listing their fees for certain services, namely, uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name. The Arizona Supreme Court upheld the conclusion of a bar committee that appellants had violated the rule, having rejected appellants' claims that the rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition, and that it infringed appellants' First Amendment rights.
1. The restraint upon attorney advertising imposed by the Supreme Court of Arizona wielding the power of the State over the practice of law is not subject to attack under the Sherman Act. Parker v. Brown,317 U. S. 341, followed; Goldfarb v. Virginia State Bar,421 U. S. 773; Cantor v. Detroit Edison Co.,428 U. S. 579, distinguished. Pp. 433 U. S. 359-363.
2. Commercial speech, which serves individual and societal interests in assuring informed and reliable decisionmaking, is entitled to some First Amendment protection, Virginia Pharmacy Board v. Virginia Consumer Council,425 U. S. 748, and the justifications advanced by appellee are inadequate to support the suppression of all advertising by attorneys. Pp. 433 U. S. 363-384.
(a) This case does not involve any question concerning in-person solicitation or advertising as to the quality of legal services, but only the question whether lawyers may constitutionally advertise the prices at which certain routine services will be performed. Pp. 433 U. S. 366-367.
(b) The belief that lawyers are somehow above "trade" is an anachronism, and for a lawyer to advertise his fees will not undermine true professionalism. Pp. 433 U. S. 368-372.
(c) Advertising legal services is not inherently misleading. Only routine services lend themselves to advertising, and, for such services, fixed rates can be meaningfully established, as the Arizona State Bar's own Legal Services Program demonstrates. Although a client may not
know the detail involved in a given task, he can identify the service at the level of generality to which advertising lends itself. Though advertising does not provide a complete foundation on which to select an attorney, it would be peculiar to deny the consumer at least some of the relevant information needed for an informed decision on the ground that the information was not complete. Pp. 433 U. S. 372-375.
(d) Advertising, the traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange, may well benefit the administration of justice. Pp. 433 U. S. 375-377.
(e) It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer, and may well aid new attorneys in entering the market. Pp. 433 U. S. 377-378.
(f) An attorney who is inclined to cut quality will do so regardless of the rule on advertising, the restraints on which are an ineffective deterrent to shoddy work. Pp. 433 U. S. 378-379.
(g) Undue enforcement problems need not be anticipated, and it is at least incongruous for the opponents of advertising to extol the virtues of the legal profession while also asserting that, through advertising, lawyers will mislead their clients. P. 433 U. S. 379.
3. The First Amendment overbreadth doctrine, which represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court, is inapplicable to professional advertising, a context where it is not necessary to further its intended objective, cf. Bigelow v. Virginia,421 U. S. 809, 421 U. S. 817-818, and appellants must therefore demonstrate that their specific conduct was constitutionally protected. Pp. 433 U. S. 379-381.
4. On this record, appellants' advertisement (contrary to appellee's contention) is not misleading, and falls within the scope of First Amendment protection. Pp. 433 U. S. 381-382.
(a) The term "legal clinic" would be understood to refer to an operation like appellants' that is geared to provide standardized and multiple services. Pp. 433 U. S. 381-382.
(b) The advertisement's claim that appellants offer services at "very reasonable" prices is not misleading. Appellants' advertised fee for an uncontested divorce, which was specifically cited by appellee, is in line with customary charges in the area. P. 433 U. S. 382.
(c) Appellants' failure to disclose that a name change might be accomplished by the client without an attorney's aid was not misleading, since the difficulty of performing the task is not revealed, and since most
113 Ariz. 394, 555 P.2d 640, affirmed in part and reversed in part.
BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined, and in Parts I and II of which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., filed an opinion concurring in part and dissenting in part, post, p. 433 U. S. 386. POWELL, J., filed an opinion concurring in part and dissenting in part, in which STEWART, J., joined, post, p. 433 U. S. 389. REHNQUIST, J., filed an opinion dissenting in part, post, p. 433 U. S. 404.
MR JUSTICE BLACKMUN delivered the opinion of the Court.
As part of its regulation of the Arizona Bar, the Supreme Court of that State has imposed and enforces a disciplinary rule that restricts advertising by attorneys. This case presents two issues: whether §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, forbid such state regulation, and whether the operation of the rule violates the First Amendment, made applicable to the States through the Fourteenth. [Footnote 1]
After admission to the bar in 1972, appellants worked as attorneys with the Maricopa County Legal Aid Society. App. 221.
In March, 1974, appellants left the Society and opened a law office, which they call a "legal clinic," in Phoenix. Their aim was to provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid. Id. at 75. In order to achieve this end, they would accept only routine matters, such as uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name, for which costs could be kept down by extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures. More complicated cases, such as contested divorces, would not be accepted. Id. at 97. Because appellants set their prices so as to have a relatively low return on each case they handled, they depended on substantial volume. Id. at 122-123.
After conducting their practice in this manner for two years, appellants concluded that their practice and clinical concept could not survive unless the availability of legal services at low cost was advertised and, in particular, fees were advertised. Id. at 120-123. Consequently, in order to generate the necessary flow of business, that is, "to attract clients," id. at 121; Tr. of Oral Arg. 4, appellants, on February 22, 1976, place an advertisement (reproduced in the Appendix to this opinion [omitted]) in the Arizona Republic, a daily newspaper of general circulation in the Phoenix metropolitan area. As may be seen, the advertisement stated that appellants were offering "legal services at very reasonable fees," and listed their fees for certain services. [Footnote 4]
Appellants concede that the advertisement constituted a clear violation of Disciplinary Rule 2-101(b), incorporated in Rule 29(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat., p. 26 (Supp. 1976). The disciplinary rule provides in part:
"(B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf. [Footnote 5] "
Upon the filing of a complaint initiated by the president of the State Bar, App. 350, a hearing was held before a three-member Special Local Administrative Committee, as prescribed by Arizona Supreme Court Rule 33. App. 16. Although the committee took the position that it could not consider an attack on the validity of the rule, it allowed the parties to develop a record on which such a challenge could be based. The committee recommended that each of the appellants be suspended from the practice of law for not less than six months. Id. at 482. Upon further review by the Board of Governors of the State Bar, pursuant to the Supreme Court's Rule 36, the Board recommended only a one-week suspension for each appellant, the weeks to run consecutively. App. 486-487.
Appellants, as permitted by the Supreme Court's Rule 37, then sought review in the Supreme Court of Arizona, arguing, among other things, that the disciplinary rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition, and that the rule infringed their First Amendment rights. The court rejected both claims. In re Bates, 113 Ariz. 394, 555 P.2d 640 (1976).The plurality [Footnote 6] may have viewed with some scepticism the claim that a restraint on advertising might have an adverse effect on competition. [Footnote 7] But, even if the rule might otherwise violate the
Act, the plurality concluded that the regulation was exempt from Sherman Act attack because the rule "is an activity of the State of Arizona acting as sovereign." Id. at 39, 555 P.2d at 643. The regulation thus was held to be shielded from the Sherman Act by the state action exemption of Parker v. Brown,317 U. S. 341 (1943).
Turning to the First Amendment issue, the plurality noted that restrictions on professional advertising have survived constitutional challenge in the past, citing, along with other cases, Williamson v. Lee Optical Co.,348 U. S. 483 (1955), and Semler v. Dental Examiners,294 U. S. 608 (1935). [Footnote 8] Although recognizing that Virginia Pharmacy Board v. Virginia Consumer Council,425 U. S. 748 (1976), and Bigelow v. Virginia,421 U. S. 809 (1975), held that commercial speech was entitled to certain protection under the First Amendment, the plurality focused on passages in those opinions acknowledging that special considerations might bear on the advertising of professional services by lawyers. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 425 U. S. 773 n. 25; id. at 425 U. S. 773-775 (concurring opinion); Bigelow v. Virginia, 421 U.S. at 421 U. S. 825 n. 10. The plurality apparently was of the view that the older decisions dealing with professional advertising survived these recent cases unscathed, and held that Disciplinary Rule 2-101(b) passed First Amendment
muster. [Footnote 9] Because the court, in agreement with the Board of Governors, felt that appellants' advertising "was done in good faith to test the constitutionality of DR 2-101(b)," it reduced the sanction to censure only. [Footnote 10] 113 Ariz. at 400, 555 P.2d at 646.
Of particular interest here is the opinion of Mr. Justice Holohan in dissent. In his view, the case should have been framed in terms of "the right of the public, as consumers and citizens, to know about the activities of the legal profession," id. at 402, 555 P.2d at 648, rather than as one involving merely the regulation of a profession. Observed in this light, he felt that the rule performed a substantial disservice to the public:
"Obviously the information of what lawyers charge is important for private economic decisions by those in need of legal services. Such information is also helpful, perhaps indispensable, to the formation of an intelligent opinion by the public on how well the legal system is working and whether it should be regulated or even altered. . . . The rule at issue prevents access to such information by the public."
Id. at 402 403, 555 P.2d at 648-649. Although the dissenter acknowledged that some types of advertising might cause confusion and deception, he felt that the remedy was to ban that form, rather than all advertising. Thus, despite his "personal dislike of the concept of advertising by attorneys," id. at 402, 555 P.2d at 648, he found the ban unconstitutional.
We noted probable jurisdiction. 429 U.S. 813 (1976).
The Sherman Act
In Parker v. Brown,317 U. S. 341 (1943), this Court held that the Sherman Act was not intended to apply against certain state action. See also Olsen v. Smith,195 U. S. 332, 195 U. S. 311 345 (1904). In Parker, a raisin producer-packer brought suit against California officials challenging a state program designed to restrict competition among growers, and thereby to maintain prices in the raisin market. The Court held that the State, "as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." 317 U.S. at 317 U. S. 352. Appellee argues, and the Arizona Supreme Court held, that the Parker exemption also bars the instant Sherman Act claim. We agree.
Of course, Parker v. Brown has not been the final word on the matter. In two recent cases, the Court has considered the state action exemption to the Sherman Act and found it inapplicable for one reason or another. Goldfarb v. Virginia State Bar,421 U. S. 773 (1975); Cantor v. Detroit Edison Co.,428 U. S. 579 (1976). Goldfarb and Cantor, however, are distinguishable, and their reasoning supports our conclusion here.
In Goldfarb, we held that § 1 of the Sherman Act was violated by the publication of a minimum fee schedule by a county bar association and by its enforcement by the State Bar. The schedule and its enforcement mechanism operated to create a rigid price floor for services, and thus constituted a classic example of price-fixing. Both bar associations argued that their activity was shielded by the state action exemption. This Court concluded that the action was not protected, emphasizing that
"we need not inquire further into the state action question, because it cannot fairly be said that the State of Virginia, through its Supreme Court Rules, required the anticompetitive activities of either respondent."
421 U.S. at 421 U. S. 790. In the instant case, by contrast, the challenged
restraint is the affirmative command of the Arizona Supreme Court under its Rules 27(a) and 29(a) and its Disciplinary Rule 101(b). That court is the ultimate body wielding the State's power over the practice of law, see Ariz.Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is "compelled by direction of the State acting as a sovereign." 421 U.S. at 421 U. S. 791. [Footnote 11]
Appellants seek to draw solace from Cantor. The defendant in that case, an electric utility, distributed light bulbs to its residential customers without additional charge, including the cost in its state-regulated utility rates. The plaintiff, a retailer who sold light bulbs, brought suit, claiming that the utility was using its monopoly power in the distribution of electricity to restrain competition in the sale of bulbs. The Court held that the utility could not immunize itself from Sherman Act attack by embodying its challenged practices in a tariff approved by a state commission. Since the disciplinary rule at issue here is derived from the Code of Professional Responsibility of the American Bar Association, [Footnote 12] appellants argue by analogy to Cantor that no immunity should result from the bar's success in having the Code adopted by the State. They also assert that the interest embodied in the Sherman Act must prevail over the state
interest in regulating the bar. See 428 U.S. at 428 U. S. 595. Particularly is this the case, they claim, because the advertising ban is not tailored so as to intrude upon the federal interest to the minimum extent necessary. See id. at 428 U. S. 596 n. 34, and 428 U. S. 597.
We believe, however, that the context in which Cantor arose is critical. First, and most obviously, Cantor would have been an entirely different case if the claim had been directed against a public official or public agency, rather than against a private party. [Footnote 13] Here, the appellants' claims are against the State. The Arizona Supreme Court is the real party in interest; it adopted the rules, and it is the ultimate trier of fact and law in the enforcement process. In re Wilson, 106 Ariz. 34, 470 P.2d 441 (1970). Although the State Bar plays a part in the enforcement of the rules, its role is completely defined by the court; the appellee acts as the agent of the court under its continuous supervision.
Second, the Court emphasized in Cantor that the State had no independent regulatory interest in the market for light bulbs. 428 U.S. at 428 U. S. 584-585; id. at 428 U. S. 604-605, 428 U. S. 612-614 (concurring opinions). There was no suggestion that the bulb program was justified by flaws in the competitive market or was a response to health or safety concerns. And an exemption for the program was not essential to the State's regulation of electric utilities. In contrast, the regulation of the activities of the bar is at the core of the State's power to protect the public. Indeed, this Court in Goldfarb acknowledged that
"[t]he interest of the States in regulating lawyers is especially great, since lawyers are essential to the
primary governmental function of administering justice, and have historically been 'officers of the courts.'"
421 U.S. at 421 U. S. 792. See Cohen v. Hurley,366 U. S. 117, 366 U. S. 123-124 (1961). [Footnote 14] More specifically, controls over solicitation and advertising by attorneys have long been subject to the State's oversight. [Footnote 15] Federal interference with a State's traditional regulation of a profession is entirely unlike the intrusion the Court sanctioned in Cantor. [Footnote 16]
Finally, the light bulb program in Cantor was instigated by the utility with only the acquiescence of the state regulatory commission. The State's incorporation of the program into the tariff reflected its conclusion that the utility was authorized to employ the practice if it so desired. See 428 U.S. at 428 U. S. 594, and n. 31. The situation now before us is entirely different. The disciplinary rules reflect a clear articulation of the State's policy with regard to professional behavior. Moreover, as the instant case shows, the rules are subject to pointed reexamination by the policymaker -- the Arizona Supreme Court -- in enforcement proceedings. Our concern that federal policy is being unnecessarily and inappropriately subordinated to state policy is reduced in such a situation; we deem it significant that the state policy is so clearly and affirmatively expressed and that the State's supervision is so active.
We conclude that the Arizona Supreme Court's determination that appellants' Sherman Act claim is barred by the Parker v. Brown exemption must be affirmed.
IIIThe First Amendment
Last Term, in Virginia Pharmacy Board v. Virginia Consumer Council,425 U. S. 748 (1976), the Court considered the validity under the First Amendment of a Virginia statute declaring that a pharmacist was guilty of "unprofessional conduct" if he advertised prescription drug prices. The pharmacist would then be subject to a monetary penalty or the suspension or revocation of his license. The statute thus effectively prevented the advertising of prescription drug price information. We recognized that the pharmacist who desired to advertise did not wish to report any particularly newsworthy fact or to comment on any cultural, philosophical, or political subject; his desired communication was characterized simply: "
Iwill sell you the X prescription drug at the Y price.'" Id. at 425 U. S. 761. Nonetheless, we held that commercial speech of that kind was entitled to the protection of the First Amendment.
Our analysis began, ibid., with the observation that our cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo,424 U. S. 1 (1976); New York Times Co. v. Sullivan,376 U. S. 254 (1964); in a form that is sold for profit, Smith v. California,361 U. S. 147 (1959); Murdock v. Pennsylvania,319 U. S. 105 (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut,310 U. S. 296 (1940). If commercial speech is to be distinguished, it "must be distinguished by its content." 425 U.S. at 425 U. S. 761. But a consideration of competing interests reinforced our view that such speech should not be withdrawn
from protection merely because it proposed a mundane commercial transaction. Even though the speaker's interest is largely economic, the Court has protected such speech in certain contexts. See, e.g., NLRB v. Gissel Packing Co.,395 U. S. 575 (1969); Thornhill v. Alabama,310 U. S. 88 (1940). The listener's interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. See Bigelow v. Virginia,421 U. S. 809 (1975). And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. See FTC v. Procter & Gamble Co.,386 U. S. 568, 386 U. S. 603-604 (1967) (Harlan, J., concurring). In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking. 425 U.S. at 425 U. S. 761-765. Arrayed against these substantial interests in the free flow of commercial speech were a number of proffered justifications for the advertising ban. Central among them were claims that the ban was essential to the maintenance of professionalism among licensed pharmacists. It was asserted that advertising would create price competition that might cause the pharmacist to economize at the customer's expense. He might reduce or eliminate the truly professional portions of his services: the maintenance and packaging of drugs so as to assure their effectiveness, and the supplementation on occasion of the prescribing physician's advice as to use. Moreover, it was said, advertising would cause consumers to price-shop, thereby undermining the pharmacist's effort to monitor the drug use of a regular customer so as to ensure that the prescribed drug would not provoke an allergic reaction or be incompatible with another substance the customer was
consuming. Finally, it was argued that advertising would reduce the image of the pharmacist as a skilled and specialized craftsman -- an image that was said to attract talent to the profession and to reinforce the good habits of those in it -- to that of a mere shopkeeper. Id. at 425 U. S. 766-768.
Although acknowledging that the State had a strong interest in maintaining professionalism among pharmacists, this Court concluded that the proffered justifications were inadequate to support the advertising ban. High professional standards were assured in large part by the close regulation to which pharmacists in Virginia were subject. Id. at 425 U. S. 768. And we observed that,
"on close inspection it is seen that the State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance."
Id. at 425 U. S. 769. But we noted the presence of a potent alternative to this "highly paternalistic" approach:
"That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication, rather than to close them."
Id. at 425 U. S. 770. The choice between the dangers of suppressing information and the dangers arising from its free flow was seen as precisely the choice "that the First Amendment makes for us." Ibid.See also Linmark Associates, Inc. v. Willingboro,431 U. S. 85, 431 U. S. 97 (1977).
We have set out this detailed summary of the Pharmacy opinion because the conclusion that Arizona's disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it. Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance. Because of the possibility, however, that the differences among professions might bring different constitutional considerations into play, we specifically reserved judgment as to other professions. [Footnote 17]
In the instant case, we are confronted with the arguments directed explicitly toward the regulation of advertising by licensed attorneys.
The issue presently before us is a narrow one. First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false. Appellee does not suggest, nor do we perceive, that appellants' advertisement contained claims, extravagant or otherwise, as to the quality of services. Accordingly, we leave that issue for another day. Second, we also need not resolve the problems associated with in-person solicitation of clients at the hospital room or the accident site, or in any other situation that breeds undue influence -- by attorneys or their agents or "runners." Activity of that kind might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue also is not before us. Third, we note that appellee's criticism of advertising by attorneys does not apply with much force to some of the basic factual content of advertising: information as to the attorney's name, address, and telephone number, office hours, and the like. The American Bar Association itself has a provision in its current Code of Professional Responsibility that would allow the disclosure of such information, and more,
in the classified section of the telephone directory. DR 2-102(A)(6) (1976). [Footnote 18] We recognize, however, that an advertising diet limited to such spartan fare would provide scant nourishment.
The heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which
certain routine services will be performed. Numerous justifications are proffered for the restriction of such price advertising. We consider each in turn:
1. The Adverse Effect on Professionalism. Appellee places particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that price advertising will bring about commercialization, which will undermine the attorney's sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession's service orientation, and irreparably damage the delicate balance between the lawyer's need to earn and his obligation selflessly to serve. Advertising is also said to erode the client's trust in his attorney: once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client's welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession.
We recognize, of course, and commend the spirit of public service with which the profession of law is practiced and to which it is dedicated. The present Members of this Court, licensed attorneys all, could not feel otherwise. And we would have reason to pause if we felt that our decision today would undercut that spirit. But we find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception. [Footnote 19] And rare is the client, moreover,
even one of modest means, who enlists the aid of an attorney with the expectation that his services will be rendered free of charge. See B. Christensen, Lawyers for People of Moderate Means 152-153 (1970). In fact, the American Bar Association advises that an attorney should reach "a clear agreement with his client as to the basis of the fee charges to be made," and that this is to be done "[a]s soon as feasible after a lawyer has been employed." Code of Professional Responsibility EC 19 (1976). If the commercial basis of the relationship is to be promptly disclosed on ethical grounds, once the client is in the office, it seems inconsistent to condemn the candid revelation of the same information before he arrives at that office.
Moreover, the assertion that advertising will diminish the attorney's reputation in the community is open to question. Bankers and engineers advertise, [Footnote 20] and yet these professions
are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. [Footnote 21] The absence of advertising may be seen to reflect the profession's failure to reach out and serve the community: studies reveal that many persons do not obtain counsel, even when they perceive a need, because of the feared price of services [Footnote 22] or because of an inability to locate a competent attorney. [Footnote 23] Indeed, cynicism
with regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients.
It appears that the ban on advertising originated as a rule of etiquette, and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on "trade" as unseemly. See H. Drinker, Legal Ethics 5, 210-211 (1953). [Footnote 24] Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. Id. at 211. But habit and tradition are not, in themselves, an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow "above"
trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.
2. The Inherently Misleading Nature of Attorney Advertising. It is argued that advertising of legal services inevitably will be misleading (a) because such services are so individualized with regard to content and quality as to prevent informed comparison on the basis of an advertisement, (b) because the consumer of legal services is unable to determine in advance just what services he needs, and (c) because advertising by attorneys will highlight irrelevant factors and fail to show the relevant factor of skill.
We are not persuaded that restrained professional advertising by lawyers inevitably will be misleading. Although many services performed by attorneys are indeed unique, it is doubtful that any attorney would or could advertise fixed prices for services of that type. [Footnote 25] 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, and the like -- the very services advertised by appellants. [Footnote 26] Although the precise service demanded in each task may vary slightly, and although legal services are not fungible, these facts do not make advertising
misleading so long as the attorney does the necessary work at the advertised price. [Footnote 27] The argument that legal services are so unique that fixed rates cannot meaningfully be established is refuted by the record in this case: the appellee State Bar itself sponsors a Legal Services Program in which the participating attorneys agree to perform services like those advertised by the appellants at standardized rates. App. 459-478. Indeed, until the decision of this Court in Goldfarb v. Virginia State Bar,421 U. S. 773 (1975), the Maricopa County Bar Association apparently had a schedule of suggested minimum fees for standard legal tasks. App. 355. We thus find of little force the assertion that advertising is misleading because of an inherent lack of standardization in legal services. [Footnote 28]
The second component of the argument -- that advertising
ignores the diagnostic role -- fares little better. [Footnote 29] It is unlikely that many people go to an attorney merely to ascertain if they have a clean bill of legal health. Rather, attorneys are likely to be employed to perform specific tasks. Although the client may not know the detail involved in performing the task, he no doubt is able to identify the service he desires at the level of generality to which advertising lends itself.
The third component is not without merit: advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision. The alternative -- the prohibition of advertising -- serves only to restrict the information that flows to consumers. [Footnote 30] Moreover, the argument assumes that the public
is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 425 U. S. 769-770. Although, of course, the bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, the preferred remedy is more disclosure, rather than less. If the naivete of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective.
3. The Adverse Effect on the Administration of Justice. Advertising is said to have the undesirable effect of stirring up litigation. [Footnote 31] The Judicial machinery is designed to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling
societal repose. There is even a suggestion of barratry. See, e.g., Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U.Chi.L.Rev. 674, 675-676 (1958).
But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits. Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action. [Footnote 32] As the bar acknowledges, "the middle 70% of our population is not being reached or served adequately by the legal profession." ABA, Revised Handbook on Prepaid Legal Services 2 (1972). [Footnote 33] Among the reasons for this underutilization is fear of the cost, and an inability to locate a suitable lawyer. See nn. 22 and
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