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.
Held:
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
Page 433 U. S. 351
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
Page 433 U. S. 352
legal services may be performed legally by the citizen for
himself.
See Faretta v. California, 422 U.
S. 806. P.
433 U. S.
382.
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.
Page 433 U. S. 353
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]
I
Appellants John R. Bates and Van O'Steen are attorneys licensed
to practice law in the State of Arizona. [
Footnote 2] As such, they are members of the appellee,
the State Bar of Arizona. [
Footnote
3]
Page 433 U. S. 354
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]
Page 433 U. S. 355
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] "
Page 433 U. S. 356
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
Page 433 U. S. 357
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
Page 433 U. S. 358
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).
Page 433 U. S. 359
II
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
Page 433 U. S. 360
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
Page 433 U. S. 361
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
Page 433 U. S. 362
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.
Page 433 U. S. 363
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.
III
The First Amendment
A
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: "
I
will 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
Page 433 U. S. 364
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
Page 433 U. S. 365
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]
Page 433 U. S. 366
In the instant case, we are confronted with the arguments
directed explicitly toward the regulation of advertising by
licensed attorneys.
B
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,
Page 433 U. S. 367
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
Page 433 U. S. 368
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,
Page 433 U. S. 369
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
Page 433 U. S. 370
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
Page 433 U. S. 371
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"
Page 433 U. S. 372
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
Page 433 U. S. 373
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
Page 433 U. S. 374
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
Page 433 U. S. 375
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
Page 433 U. S. 376
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 |
22 and S.
350fn23|>23,
supra. Advertising can help to solve this
acknowledged problem: advertising is the traditional mechanism in a
free market economy for a supplier to inform a potential purchaser
of the availability and terms of exchange. The disciplinary rule at
issue likely has served to burden access to legal services,
particularly �
22 and S.
377� for the not-quite-poor and the unknowledgeable. A rule
allowing restrained advertising would be in accord with the bar's
obligation to "facilitate the process of intelligent selection of
lawyers, and to assist in making legal services fully
available."
ABA Code of Professional Responsibility EC 2-1 (1976).
4
The Undesirable Economic Effects of Advertising. It
is claimed that advertising will increase the overhead costs of the
profession, and that these costs then will be passed along to
consumers in the form of increased fees. Moreover, it is claimed
that the additional cost of practice will create a substantial
entry barrier, deterring or preventing young attorneys from
penetrating the market and entrenching the position of the bar's
established members.
These two arguments seem dubious, at best. Neither distinguishes
lawyers from others,
see Virginia Pharmacy Board v. Virginia
Consumer Council, 425 U.S. at
425 U. S. 768,
and neither appears relevant to the First Amendment. The ban on
advertising serves to increase the difficulty of discovering the
lowest cost seller of acceptable ability. As a result, to this
extent attorneys are isolated from competition, and the incentive
to price competitively is reduced. Although it is true that the
effect of advertising on the price of services has not been
demonstrated, there is revealing evidence with regard to products;
where consumers have the benefit of price advertising, retail
prices often are dramatically lower than they would be without
advertising. [
Footnote 34]
It is entirely possible that advertising will serve to reduce, not
advance, the cost of legal services to the consumer. [
Footnote 35]
Page 433 U. S. 378
The entry barrier argument is equally unpersuasive. In the
absence of advertising, an attorney must rely on his contacts with
the community to generate a flow of business. In view of the time
necessary to develop such contacts, the ban in fact serves to
perpetuate the market position of established attorneys.
Consideration of entry barrier problems would urge that advertising
be allowed so as to aid the new competitor in penetrating the
market
5.
The Adverse Effect of Advertising on the Quality of
Service. It is argued that the attorney may advertise a given
"package" of service at a set price, and will be inclined to
provide, by indiscriminate use, the standard package regardless of
whether it fits the client's needs.
Restraints on advertising, however, are an ineffective way of
deterring shoddy work. An attorney who is inclined to cut quality
will do so regardless of the rule on advertising. And the
advertisement of a standardized fee does not necessarily mean that
the services offered are undesirably standardized. Indeed, the
assertion that an attorney who advertises a standard fee will cut
quality is substantially undermined by the fixed fee schedule of
appellee's own prepaid Legal Services Program. Even if advertising
leads to the
Page 433 U. S. 379
creation of "legal clinics" like that of appellants' -- clinics
that emphasize standardized procedures for routine problems -- it
is possible that such clinics will improve service by reducing the
likelihood of error.
6.
The Difficulties of Enforcement. Finally, it is
argued that the wholesale restriction is justified by the problems
of enforcement if any other course is taken. Because the public
lacks sophistication in legal matters, it may be particularly
susceptible to misleading or deceptive advertising by lawyers.
After-the-fact action by the consumer lured by such advertising may
not provide a realistic restraint because of the inability of the
layman to assess whether the service he has received meets
professional standards. Thus, the vigilance of a regulatory agency
will be required. But because of the numerous purveyors of
services, the overseeing of advertising will be burdensome.
It is at least somewhat incongruous for the opponents of
advertising to extol the virtues and altruism of the legal
profession at one point and, at another, to assert that its members
will seize the opportunity to mislead and distort. We suspect that,
with advertising, most lawyers will behave as they always have:
they will abide by their solemn oaths to uphold the integrity and
honor of their profession and of the legal system. For every
attorney who overreaches through advertising, there will be
thousands of others who will be candid and honest and
straightforward. And, of course, it will be in the latter's
interest, as in other cases of misconduct at the bar, to assist in
weeding out those few who abuse their trust.
In sum, we are not persuaded that any of the proffered
justifications rise to the level of an acceptable reason for the
suppression of all advertising by attorneys.
C
In the usual case involving a restraint on speech, a showing
that the challenged rule served unconstitutionally to suppress
Page 433 U. S. 380
speech would end our analysis. In the First Amendment context,
the Court has permitted attacks on overly broad statutes without
requiring that the person making the attack demonstrate that in
fact his specific conduct was protected.
See, e.g., Bigelow v.
Virginia, 421 U.S. at
421 U. S. 815-816;
Gooding v. Wilson,
405 U. S. 518,
405 U. S.
521-522 (1972);
Dombrowski v. Pfister,
380 U. S. 479,
380 U. S. 486
(1965). Having shown that the disciplinary rule interferes with
protected speech, appellants ordinarily could expect to benefit
regardless of the nature of their acts.
The First Amendment overbreadth doctrine, however, 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.
See, e.g.,
Broadrick v. Oklahoma, 413 U. S. 601,
413 U. S. 610
(1973);
United States v. Raines, 362 U. S.
17,
362 U. S. 21
(1960);
Ashwander v. TVA, 297 U.
S. 288,
297 U. S. 347
(1936) (Brandeis, J., concurring). The reason for the special rule
in First Amendment cases is apparent: an overbroad statute might
serve to chill protected speech. First Amendment interests are
fragile interests, and a person who contemplates protected activity
might be discouraged by the
in terrorem effect of the
statute.
See NAACP v. Button, 371 U.
S. 415,
371 U. S. 433
(1963). Indeed, such a person might choose not to speak because of
uncertainty whether his claim of privilege would prevail if
challenged. The use of overbreadth analysis reflects the conclusion
that the possible harm to society from allowing unprotected speech
to go unpunished is outweighed by the possibility that protected
speech will be muted.
But the justification for the application of overbreadth
analysis applies weakly, if at all, in the ordinary commercial
context. As was acknowledged in
Virginia Pharmacy Board v.
Virginia Consumer Council, 425 U.S. at
425 U. S. 771
n. 24, there
Page 433 U. S. 381
are "common sense differences" between commercial speech and
other varieties.
See also id. at
425 U. S.
775-781 (concurring opinion). Since advertising is
linked to commercial wellbeing, it seems unlikely that such speech
is particularly susceptible to being crushed by overbroad
regulation.
See id. at
425 U. S.
771-772, n. 24. Moreover, concerns for uncertainty in
determining the scope of protection are reduced; the advertiser
seeks to disseminate information about a product or service that he
provides, and presumably he can determine more readily than others
whether his speech is truthful and protected.
Ibid. Since
overbreadth has been described by this Court as "strong medicine,"
which "has been employed . . . sparingly and only as a last
resort,"
Broadrick v. Oklahoma, 413 U.S. at
413 U. S. 613,
we decline to apply it to professional advertising, a context where
it is not necessary to further its intended objective.
Cf.
Bigelow v. Virginia, 421 U.S. at
421 U. S.
817-818.
Is, then, appellants' advertisement outside the scope of basic
First Amendment protection? Aside from general claims as to the
undesirability of any advertising by attorneys, a matter considered
above, appellee argues that appellants' advertisement is
misleading, and hence unprotected, in three particulars: (a) the
advertisement makes reference to a "legal clinic," an allegedly
undefined term; (b) the advertisement claims that appellants offer
services at "very reasonable" prices, and, at least with regard to
an uncontested divorce, the advertised price is not a bargain; and
(c) the advertisement does not inform the consumer that he may
obtain a name change without the services of an attorney. Tr. of
Oral Arg. 56-57. On this record, these assertions are unpersuasive.
We suspect that the public would readily understand the term "legal
clinic" -- if, indeed, it focused on the term at all -- to refer to
an operation like that of appellants' that is geared to provide
standardized and multiple services. In fact, in his deposition, the
president of the State Bar of Arizona observed
Page 433 U. S. 382
that there was a committee of the bar "exploring the ways in
which the legal clinic concept can be properly developed." App.
375;
see id. at 401.
See also id. at 84-85
(testimony of appellants). And the clinical concept in the sister
profession of medicine surely by now is publicly acknowledged and
understood.
As to the cost of an uncontested divorce, appellee's counsel
stated at oral argument that this runs from $150 to $300 in the
area. Tr. of Oral Arg. 58. Appellants advertised a fee of $175 plus
a $20 court filing fee, a rate that seems "very reasonable" in
light of the customary charge. Appellee's own Legal Services
Program sets the rate for an uncontested divorce at $250. App. 473.
Of course, advertising will permit the comparison of rates among
competitors, thus revealing if the rates are reasonable.
As to the final argument -- the failure to disclose that a name
change might be accomplished by the client without the aid of an
attorney -- we need only note that most legal services may be
performed legally by the citizen for himself.
See Faretta v.
California, 422 U. S. 806
(1975); ABA Code of Professional Responsibility EC 7 (1976). The
record does not unambiguously reveal some of the relevant facts in
determining whether the nondisclosure is misleading, such as how
complicated the procedure is and whether the State provides
assistance for laymen. The deposition of one appellant, however,
reflects that, when he ascertained that a name change required only
the correction of a record or the like, he frequently would send
the client to effect the change himself. [
Footnote 36] App. 112.
We conclude that it has not been demonstrated that the
advertisement at issue could be suppressed.
Page 433 U. S. 383
IV
In holding that advertising by attorneys may not be subjected to
blanket suppression, and that the advertisement at issue is
protected, we, of course, do not hold that advertising by attorneys
may not be regulated in any way. We mention some of the clearly
permissible limitations on advertising not foreclosed by our
holding.
Advertising that is false, deceptive, or misleading, of course,
is subject to restraint.
See Virginia Pharmacy Board v.
Virginia Consumer Council, 425 U.S. at
425 U. S.
771-772, and n. 24. Since the advertiser knows his
product and has a commercial interest in its dissemination, we have
little worry that regulation to assure truthfulness will discourage
protected speech.
Id. at
425 U. S.
771-772, n. 24. And any concern that strict requirements
for truthfulness will undesirably inhibit spontaneity seems
inapplicable, because commercial speech generally is calculated.
Indeed, the public and private benefits from commercial speech
derive from confidence in its accuracy and reliability. Thus, the
leeway for untruthful or misleading expression that has been
allowed in other contexts has little force in the commercial arena.
Compare Gertz v. Robert Welch, Inc., 418 U.
S. 323,
418 U. S.
339-341 (1974),
and Cantwell v. Connecticut,
310 U.S. at
310 U. S. 310,
with NLRB v. Gissel Packing Co., 395 U.S. at
395 U. S. 618.
In fact, because the public lacks sophistication concerning legal
services, misstatements that might be overlooked or deemed
unimportant in other advertising may be found quite inappropriate
in legal advertising. [
Footnote
37] For example, advertising claims as to the quality of
services -- a matter we do not address today -- are not susceptible
of measurement or verification; accordingly, such claims may be so
likely to be
Page 433 U. S. 384
misleading as to warrant restriction. Similar objections might
justify restraints on in-person solicitation. We do not foreclose
the possibility that some limited supplementation, by way of
warning or disclaimer or the like, might be required of even an
advertisement of the kind ruled upon today so as to assure that the
consumer is not misled. In sum, we recognize that many of the
problems in defining the boundary between deceptive and
nondeceptive advertising remain to be resolved, and we expect that
the bar will have a special role to play in assuring that
advertising by attorneys flows both freely and cleanly.
As with other varieties of speech, it follows as well that there
may be reasonable restrictions on the time, place, and manner of
advertising.
See Virginia Pharmacy Board v. Virginia Consumer
Council, 425 U.S. at
425 U. S. 771.
Advertising concerning transactions that are themselves illegal
obviously may be suppressed.
See Pittsburgh Press Co. v. Human
Relations Comm'n, 413 U. S. 376,
413 U. S. 388
(1973). And the special problems of advertising on the electronic
broadcast media will warrant special consideration.
Cf. Capital
Broadcasting Co. v. Mitchell, 333 F.
Supp. 582 (DC 1971),
summarily aff'd sub nom. Capital
Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000
(1972).
The constitutional issue in this case is only whether the State
may prevent the publication in a newspaper of appellants' truthful
advertisement concerning the availability and terms of routine
legal services. We rule simply that the flow of such information
may not be restrained, and we therefore hold the present
application of the disciplinary rule against appellants to be
violative of the First Amendment.
The judgment of the Supreme Court of Arizona is therefore
affirmed in part and reversed in part.
It is so ordered.
Page 433 U. S. 385
[Appendix - text of advertisement - omitted]
Page 433 U. S. 386
[
Footnote 1]
See Bigelow v. Virginia, 421 U.
S. 809,
421 U. S. 811
(1975);
Schneider v. State, 308 U.
S. 147,
308 U. S. 160
(1939).
[
Footnote 2]
Each appellant is a 1972 graduate of Arizona State University
College of Law. Mr. Bates was named by the faculty of that law
school as the outstanding student of his class; Mr. O'Steen
graduated
cum laude. App. 220-221.
[
Footnote 3]
Rule 27(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat.
pp. 84-85 (1973), reads in part:
"1. In order to advance the administration of justice according
to law, . . . the Supreme Court of Arizona does hereby perpetuate,
create and continue under the direction and control of this Court
an organization known as the State Bar of Arizona, and all persons
now or hereafter licensed in this state to engage in the practice
of law shall be members of the State Bar of Arizona in accordance
with the rules of this Court. . . ."
"
* * * *"
"3. No person shall practice law in this state or hold himself
out as one who may practice law in this state unless he is an
active member of the state bar."
See Ariz.Const., Art. 3; Ariz.Rev.Stat. §§ 32-201,
32-237, 32-264 (1976). The Arizona Bar, thus, is an integrated one.
See Lathrop v. Donohue, 367 U. S. 820
(1961).
[
Footnote 4]
The office benefited from an increase in business after the
appearance of the advertisement. App. 235-236, 479-480. It is
doubtful, however, whether the increase was due solely to the
advertisement, for the advertising itself prompted several news
stories.
Id. at 229. It might be expected, nonetheless,
that advertising will increase business.
See Hobbs, Lawyer
Advertising: A Good Beginning, but Not Enough, 62 A.B.A.J. 735, 736
(1976) (lawyer referral service that advertised referred more than
11 times as many clients as one that did not advertise in another
city of comparable size).
[
Footnote 5]
The remainder of subdivision (b) states exceptions to the
general prohibition:
"However, a lawyer recommended by, paid by, or whose legal
services are furnished by, a qualified legal assistance
organization may authorize or permit or assist such organization to
use means of dignified commercial publicity, which does not
identify any lawyer by name, to describe the availability or nature
of its legal services or legal service benefits. This rule does not
prohibit limited and dignified identification of a lawyer as a
lawyer as well as by name:"
"(1) In political advertisements when his professional status is
germane to the political campaign or to a political issue."
"(2) In public notices when the name and profession of a lawyer
are required or authorized by law or are reasonably pertinent for a
purpose other than the attraction of potential clients."
"(3) In routine reports and announcements of a bona fide
business, civic, professional, or political organization in which
he serves as a director or officer."
"(4) In and on legal documents prepared by him."
"(5) In and on legal textbooks, treatises, and other legal
publications, and in dignified advertisements thereof."
"(6) In communications by a qualified legal assistance
organization, along with the biographical information permitted
under DR 2-102(A)(6) [biographical information that may be listed
'in a reputable law list or legal directory'], directed to a member
or beneficiary of such organization."
[
Footnote 6]
The plurality opinion represented the views of two of the five
justices that compose the Supreme Court of Arizona. Ariz.Const.,
Art. 6, § 2; Ariz.Rev.Stat. § 12-101 (1956). It is evident,
however, that a majority adhered to the plurality's exposition of
the law. One opinion, although styled a dissent, stated that the
author agreed with the plurality opinion "in all respects" except
for the reduction in punishment. One justice, specially concurring,
stated that he agreed "with much of the law and many of the
comments expressed by the majority." The opinion of the remaining
justice is discussed in the text.
[
Footnote 7]
But see United States v. Gasoline Retailers Assn., 285
F.2d 688, 691 (CA7 1961);
cf. United States v. Socony-Vacuum
Oil Co., 310 U. S. 150,
310 U. S.
221-222 (1940);
United States v. National Society of
Professional Engineers, 181 U.S.App.D.C. 41, 555 F.2d 978
(1977) (ethical prohibition on members of society from submitting
competitive bids for engineering services violates Sherman
Act).
[
Footnote 8]
See also Head v. New Mexico Board, 374 U.
S. 424 (1963). The Court did not resolve a First
Amendment issue in any of these cases. The advertising restrictions
were upheld in the face of challenges based on due process, equal
protection, and interference with interstate commerce. Although the
First Amendment issue was raised in
Head, the Court
refused to consider it, because it had been neither presented to
the state courts nor reserved in the notice of appeal.
Id.
at
374 U. S.
432-433, n. 12.
[
Footnote 9]
Appellants also unsuccessfully challenged the rule on equal
protection and vagueness grounds, and asserted that the
disciplinary procedures violated due process. These contentions are
not made here.
[
Footnote 10]
MR. JUSTICE REHNQUIST stayed the order of censure pending final
determination of the matter by this Court.
[
Footnote 11]
We note, moreover, that the Court's opinion in
Goldfarb
concluded with the observation that,
"[i]n holding that certain anticompetitive conduct by lawyers is
within the reach of the Sherman Act, we intend no diminution of the
authority of the State to regulate its professions."
421 U.S. at
421 U. S. 793.
Allowing the instant Sherman Act challenge to the disciplinary rule
would have precisely that undesired effect.
[
Footnote 12]
Rule 29(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat.,
p. 26 (Supp. 1976), provides:
"The duties and obligations of members [of the bar] shall be as
prescribed by the Code of Professional Responsibility of the
American Bar Association, effective November 1, 1970, as amended by
this Court."
The challenged rule, DR 2-101(b), is now identical with the
present version of the parallel rule, also numbered DR 2-101(b), of
the ABA Code of Professional Responsibility, as amended to August,
1976.
[
Footnote 13]
MR. JUSTICE STEVENS, in a portion of his opinion in
Cantor that was joined by BRENNAN, WHITE, and MARSHALL,
JJ., observed that
Parker v. Brown was a suit against
public officials, whereas, in
Cantor, the claims were
directed against only a private defendant. 428 U.S. at
428 U. S.
585-592,
428 U. S.
600-601. The dissenters in
Cantor would have
applied the state action exemption regardless of the identity of
the defendants.
Id. at
428 U. S.
615-617 (STEWART, J., joined by POWELL and REHNQUIST,
JJ.).
[
Footnote 14]
Cohen v. Hurley, in other respects, has been overruled.
Spevack v. Klein, 385 U. S. 511
(1967).
[
Footnote 15]
The limitation on advertising by attorneys in Arizona seems to
have commenced in 1919 with the incorporation by reference of the
American Bar Association's 1908 Canons of Professional Ethics into
Arizona's statutory law. 1919 Ariz.Sess.Laws, c. 158.
[
Footnote 16]
Indeed, our decision today on the Sherman Act issue was presaged
in
Virginia Pharmacy Board v. Virginia Consumer Council,
425 U. S. 748,
425 U. S. 770
(1976). We noted there:
"Virginia is free to require whatever professional standards it
wishes of its pharmacists; it may subsidize them or protect them
from competition in other ways.
Cf. Parker v. Brown,
317 U. S.
341 (1943)."
[
Footnote 17]
"We stress that we have considered in this case the regulation
of commercial advertising by pharmacists. Although we express no
opinion as to other professions, the distinctions, historical and
functional, between professions, may require consideration of quite
different factors. Physicians and lawyers, for example, do not
dispense standardized products; they render professional
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."
425 U.S. at
425 U. S. 773
n. 25 (emphasis in original).
See id. at
425 U. S.
773-775 (concurring opinion).
[
Footnote 18]
The disciplinary rule, after referring to a listing in "a
reputable law list," legal directory, or classified section of a
telephone company directory, states:
"The published data may include only the following: name,
including name of law firm and names of professional associates;
addresses and telephone numbers; one or more fields of law in which
the lawyer or law firm concentrates, to the extent not prohibited
by the authority having jurisdiction under state law over the
subject; a statement that practice is limited to one or more fields
of law, to the extent not prohibited by the authority having
jurisdiction under state law over the subject of limitation of
practice by lawyers; a statement that the lawyer or law firm
specializes in a particular field of law or law practice, to the
extent permitted by the authority having jurisdiction under state
law over the subject of specialization by lawyers and in accordance
with rules prescribed by that authority; date and place of birth;
date and place of admission to the bar of state and federal courts;
schools attended, with dates of graduation, degrees, and other
scholastic distinctions; public or quasi-public offices; military
service; posts of honor; legal authorships; legal teaching
positions; memberships, offices, committee assignments, and section
memberships in bar associations; memberships and offices in legal
fraternities and legal societies; technical and professional
licenses; memberships in scientific, technical and professional
associations and societies; foreign language ability; names and
addresses of references, and, with their consent, names of clients
regularly represented; whether credit cards or other credit
arrangements are accepted; office and other hours of availability;
a statement of legal fees for an initial consultation or the
availability upon request of a written schedule of fees or an
estimate of the fee to be charged for the specific services;
provided, all such published data shall be disseminated only to the
extent and in such format and language uniformly applicable to all
lawyers, as prescribed by the authority having jurisdiction by
state law over the subject. This proviso is not applicable in any
state unless and until it is implemented by such authority in that
state."
[
Footnote 19]
Counsel for the appellee at oral argument readily stated:
"We all know that law offices are big businesses, that they may
have billion-dollar or million-dollar clients, they're run with
computers, and all the rest. And so the argument may be made that
to term them noncommercial is sanctimonious humbug."
Tr. of Oral Arg. 64.
[
Footnote 20]
See B. Christensen, Lawyers for People of Moderate
Means 151-152 (1970); Note, Advertising, Solicitation and the
Profession's Duty to Make Legal Counsel Available, 81 Yale L.J.
1181, 1190 (1972). Indeed, it appears that even the medical
profession now views the alleged adverse effect of advertising in a
somewhat different light from the appellee. A Statement of the
Judicial Council of the American Medical Association provides in
part:
"Advertising -- The Principles [of Medical Ethics] do not
proscribe advertising; they proscribe the solicitation of patients.
. . . The public is entitled to know the names of physicians, the
type of their practices, the location of their offices, their
office hours, and other useful information that will enable people
to make a more informed choice of physician."
"The physician may furnish this information through the accepted
local media of advertising or communication, which are open to all
physicians on like conditions. Office signs, professional cards,
dignified announcements, telephone directory listings, and
reputable directories are examples of acceptable media for making
information available to the public."
"A physician may give biographical and other relevant data for
listing in a reputable directory. . . . If the physician, at his
option, chooses to supply fee information, the published data may
include his charge for a standard office visit or his fee or range
of fees for specific types of services, provided disclosure is made
of the variable and other pertinent factors affecting the amount of
the fee specified. The published data may include other relevant
facts about the physician, but false, misleading, or deceptive
statements or claims should be avoided."
235 J.A.M.A. 232 (1976).
[
Footnote 21]
See M. Freedman, Lawyers' Ethics in an Adversary System
115-116 (1975); Branca & Steinberg, Attorney Fee Schedules and
Legal Advertising: The Implications of
Goldfarb, 24 UCLA
L.Rev. 475, 516-517 (1977).
[
Footnote 22]
The Report of the Special Committee on the Availability of Legal
Services, adopted by the House of Delegates of the American Bar
Association, and contained in the ABA's Revised Handbook on Prepaid
Legal Services (1972), states, at 26:
"We are persuaded that the actual or feared price of such
services, coupled with a sense of unequal bargaining status, is a
significant barrier to wider utilization of legal services."
See also E. Koos, The Family and The Law 7 (1948)
(survey in which 47.6% of working-class families cited cost as the
reason for not using a lawyer); P. Murphy & S. Walkowski,
Compilation of Reference Materials on Prepaid Legal Services 2-3
(1973) (summarizing study in which 514 of 1,040 respondents gave
expected cost as reason for not using a lawyer's services despite a
perceived need). There are indications that fear of cost is
unrealistic.
See Petition of the Board of Governors of the
District of Columbia Bar for Amendments to Rule X of the Rules
Governing the Bar of the District of Columbia (1976), reprinted in
the App. to Brief for United States as
Amicus Curiae 10a,
24a-25a (reporting study in which middle-class consumers
overestimated lawyers' fees by 91% for the drawing of a simple
will, 340% for reading and advising on a 2-page installment sales
contract, and 123% for 30 minutes of consultation).
See
also F. Marks, R. Hallauer, & R. Clifton, The Shreveport
Plan: An Experiment in the Delivery of Legal Services 50-52
(1974).
[
Footnote 23]
The preliminary release of some of the results of a survey
conducted by the ABA Special Committee to Survey Legal Needs in
collaboration with the American Bar Foundation reveals that 48.7%
strongly agreed and another 30.2% slightly agreed with the
statement that people do not go to lawyers because they have no way
of knowing which lawyers are competent to handle their particular
problems. ABA, Legal Services and the Public, 3 Alternatives 15
(Jan.1976).
See B. Curran & F. Spalding, The Legal
Needs of the Public 96 (Preliminary Report 1974) (an earlier report
concerning the same survey). Although advertising, by itself, is
not adequate to deal with this problem completely, it can provide
some of the information that a consumer needs to make an
intelligent selection.
[
Footnote 24]
The British view may be changing. An official British Commission
recently presented reports to Parliament recommending that
solicitors be permitted to advertise. Monopolies and Mergers
Commission, Services of Solicitors in England and Wales: A Report
on the Supply of Services of Solicitors in England and Wales in
Relation to Restrictions on Advertising 39-41 (1976); Monopolies
and Mergers Commission, Services of Solicitors in Scotland: A
Report on the Supply of Services of Solicitors in Scotland in
Relation to Restrictions on Advertising 31-34 (1976). A companion
study concerning barristers recommended that no changes be made in
the restrictions upon their advertising, chiefly because barristers
are not hired directly by laymen. Monopolies and Mergers
Commission, Barristers' Services: A Report on the Supply of
Barristers' Services in Relation to Restrictions on Advertising
21-24 (1976).
[
Footnote 25]
See Morgan, The Evolving Concept of Professional
Responsibility, 90 Harv.L.Rev. 702, 741 (1977); Note, Advertising,
Solicitation and the Profession's Duty to Make Legal Counsel
Available, 81 Yale L.J. 1181, 1203 (1972). Economic considerations
suggest that advertising is a more significant force in the
marketing of inexpensive and frequently used goods and services
with mass markets than in the marketing of unique products or
services.
[
Footnote 26]
Moreover, we see nothing that is misleading in the advertisement
of the cost of an initial half-hour consultation. The American Bar
Association's Code of Professional Responsibility DR 2-102(A)(6)
(1976), permits the disclosure of such fee information in the
classified section of a telephone directory.
See n 18,
supra. If the
information is not misleading when published in a telephone
directory, it is difficult to see why it becomes misleading when
published in a newspaper.
[
Footnote 27]
One commentator has observed:
"[A] moment's reflection reveals that the same argument can be
made for barbers; rarely are two haircuts identical, but that does
not mean that barbers cannot quote a standard price. Lawyers
perform countless relatively standardized services which vary
somewhat in complexity but not so much as to make each job utterly
unique."
Morgan,
supra, n
25, at 714.
[
Footnote 28]
THE CHIEF JUSTICE and MR. JUSTICE POWELL argue in dissent that
advertising will be misleading because the exact services that are
included in an advertised package may not be clearly specified or
understood by the prospective client.
Post at
433 U. S.
386-387 and
433 U. S.
392-394. The bar, however, retains the power to define
the services that must be included in an advertised package, such
as an uncontested divorce, thereby standardizing the "product." We
recognize that an occasional client might fail to appreciate the
complexity of his legal problem and will visit an attorney in the
mistaken belief that his difficulty can be handled at the
advertised price. The misunderstanding, however, usually will be
exposed at the initial consultation, and an ethical attorney would
impose, at the most, a minimal consultation charge or no charge at
all for the discussion. If the client decides to have work
performed, a fee could be negotiated in the normal manner. The
client is thus in largely the same position as he would be if there
were no advertising. In light of the benefits of advertising to
those whose problem can be resolved at the advertised price,
suppression is not warranted on account of the occasional client
who misperceives his legal difficulties.
[
Footnote 29]
The same argument could be made about the advertising of
abortion services. Although the layman may not know all the details
of the medical procedure and may not always be able accurately to
diagnose pregnancy, such advertising has certain First Amendment
protection.
Bigelow v. Virginia, 421 U.
S. 809 (1975).
[
Footnote 30]
It might be argued that advertising is undesirable because it
allows the potential client to substitute advertising for
reputational information in selecting an appropriate attorney.
See, e.g., Note, Sherman Act Scrutiny of Bar Restraints on
Advertising and Solicitation by Attorneys, 62 Va.L.Rev. 1135,
1152-1157 (1976). Since in a referral system relying on reputation
an attorney's future business is partially dependent on current
performance, such a system has the benefit both of providing a
mechanism for disciplining misconduct and of creating an incentive
for an attorney to do a better job for his present clients.
Although the system may have worked when the typical lawyer
practiced in a small, homogeneous community in which ascertaining
reputational information was easy for a consumer, commentators have
seriously questioned its current efficacy.
See, e.g., B.
Christensen, Lawyers for People of Moderate Means 128-135 (1970);
Note, Bar Restrictions on Dissemination of Information about Legal
Services, 22 UCLA L.Rev. 483, 500 (1974); Note, Sherman Act
Scrutiny,
supra at 1156-1157. The trends of urbanization
and specialization long since have moved the typical practice of
law from its small-town setting.
See R. Pound, The Lawyer
from Antiquity to Modern Times 242 (1953). Information as to the
qualifications of lawyers is not available to many.
See
n 23,
supra. And,
if available, it may be inaccurate or biased.
See Note,
Sherman Act Scrutiny,
supra at 1157.
[
Footnote 31]
It is argued that advertising also will encourage fraudulent
claims. We do not believe, however, that there is an inevitable
relationship between advertising and dishonesty.
See
Monopolies and Mergers Commission, Services of Solicitors in
England and Wales,
supra, n 24, at 32-33 ("The temptation to depart from the high
standards required of the profession no doubt exists, but we do not
believe that solicitors would be likely to succumb to it more
easily or more frequently merely by reason of the supposed
contamination of advertising; the traditions of the profession and
the sense of responsibility of its members are, in our view, too
strong for this to happen"). Unethical lawyers and dishonest laymen
are likely to meet even though restrictions on advertising exist.
The appropriate response to fraud is a sanction addressed to that
problem alone, not a sanction that unduly burdens a legitimate
activity.
[
Footnote 32]
Decided cases reinforce this view. The Court often has
recognized that collective activity undertaken to obtain meaningful
access to the courts is protected under the First Amendment.
See United Transportation Union v. Michigan Bar,
401 U. S. 576,
401 U. S. 585
(1971);
Mine Workers v. Illinois Bar Assn., 389 U.
S. 217,
389 U. S.
222-224 (1967);
Railroad Trainmen v. Virginia
Bar, 377 U. S. 1,
377 U. S. 7
(1964);
NAACP v. Button, 371 U. S. 415,
371 U. S.
438-440 (1963). It would be difficult to understand
these cases if a lawsuit were somehow viewed as an evil in itself.
Underlying them was the Court's concern that the aggrieved receive
information regarding their legal rights and the means of
effectuating them. This concern applies with at least as much force
to aggrieved individuals as it does to groups.
[
Footnote 33]
The ABA survey discussed in
n 23 indicates that 35.8% of the adult population has
never visited an attorney, and another 27.9% has visited an
attorney only once. 3 Alternatives, supra,
n. 23, at 12.
See also P. Murphy & S Walkowski, Compilation of Reference
Materials on Prepaid Legal Services 1 (1973); Meserve, Our
Forgotten Client: The Average American, 57 A.B.A.J. 1092 (1971).
Appellee concedes the existence of the problem, but argues that
advertising offers an unfortunate solution. Brief for Appellee
54-56.
[
Footnote 34]
See Benham, The Effect of Advertising on the Price of
Eyeglasses, 15 J.Law & Econ. 337 (1972); J. Cady, Restricted
Advertising and Competition: the Case of Retail Drugs (1976).
See also Virginia Pharmacy Board v. Virginia Consumer
Council, 425 U.S. at
425 U. S. 754,
and n. 11 (noting variation in drug prices of up to 1200% in one
city).
[
Footnote 35]
On the one hand, advertising does increase an attorney's
overhead costs, and, in light of the underutilization of legal
services by the public,
see n 33,
supra, it may increase substantially the
demand for services. Both these factors will tend to increase the
price of legal services. On the other hand, the tendency of
advertising to enhance competition might be expected to produce
pressures on attorneys to reduce fees. The net effect of these
competing influences is hard to estimate. We deem it significant,
however, that consumer organizations have filed briefs as
amici urging that the restriction on advertising be
lifted. And we note as well that, despite the fact that advertising
on occasion might increase the price the consumer must pay,
competition through advertising is ordinarily the desired norm.
Even if advertising causes fees to drop, it is by no means clear
that a loss of income to lawyers will result. The increased volume
of business generated by advertising might more than compensate for
the reduced profit per case.
See Frierson, Legal
Advertising, Barrister 6, 8 (Winter 1975); Wilson, Madison Avenue,
Meet the Bar, 61 A.B.A.J. 586, 588 (1975).
[
Footnote 36]
The same appellant, however, stated: "[I]t's not my job to
inform a prospective client that he needn't employ a lawyer to
handle his work." App. 112-113.
[
Footnote 37]
The determination whether an advertisement is misleading
requires consideration of the legal sophistication of its audience.
Cf. Feil v. FTC, 285 F.2d 879, 897 (CA9 1960). Thus,
different degrees of regulation may be appropriate in different
areas.
MR CHIEF JUSTICE BURGER, concurring in part and dissenting in
part.
I am in general agreement with MR. JUSTICE POWELL's analysis and
with Part II of the Court's opinion. I particularly agree with MR.
JUSTICE POWELL's statement that "today's decision will effect
profound changes in the practice of law."
Post at
433 U. S. 389.
Although the exact effect of those changes cannot now be known, I
fear that they will be injurious to those whom the ban on legal
advertising was designed to protect -- the members of the general
public in need of legal services.
Some Members of the Court apparently believe that the present
case is controlled by our holding one year ago in
Virginia
Pharmacy Board v. Virginia Consumer Council, 425 U.
S. 748 (1976). However, I had thought that we made most
explicit that our holding there rested on the fact that the
advertisement of standardized, prepackaged, name-brand drugs was at
issue.
Id. at
425 U. S. 773
n. 25. In that context, the prohibition on price advertising, which
had served a useful function in the days of individually compounded
medicines, was no longer tied to the conditions which had given it
birth. The same cannot be said with respect to legal services,
which, by necessity, must vary greatly from case to case. Indeed, I
find it difficult, if not impossible, to identify categories of
legal problems or services which are fungible in nature. For
example, MR. JUSTICE POWELL persuasively demonstrates the fallacy
of any notion that even an uncontested divorce can be "standard."
Post at
433 U. S.
392-394. A "reasonable charge" for such a divorce could
be $195, as the appellants wish to advertise, or it could
reasonably be a great deal more, depending on such variables as
child custody, alimony, support, or any property settlement.
Because legal services can rarely, if ever, be "standardized," and
because potential clients rarely know in advance what services they
do in fact need, price advertising can never give the public an
accurate picture on which to base its selection of an attorney.
Indeed, in the context of legal
Page 433 U. S. 387
services, such incomplete information could be worse than no
information at all. [
Footnote 2/1]
It could become a trap for the unwary.
The Court's opinion largely disregards these facts on the
unsupported assumptions that attorneys will not advertise anything
but "routine" services -- which the Court totally fails to identify
or define -- or, if they do advertise, that the bar and the courts
will be able to protect the public from those few practitioners who
abuse their trust. The former notion is highly speculative and, of
course, does nothing to solve the problems that this decision will
create; as to the latter, the existing administrative machinery of
both the profession and the courts has proved wholly inadequate to
police the profession effectively.
See ABA Special
Committee On Evaluation of Disciplinary Enforcement, Problems and
Recommendations in Disciplinary Enforcement (1970). To impose the
enormous new regulatory burdens called for by the Court's decision
on the presently deficient machinery of the bar and courts is
unrealistic; it is almost predictable that it will create problems
of unmanageable proportions. The Court thus takes a "great leap"
into an unexplored, sensitive regulatory area where the legal
profession and the courts have not yet learned to crawl, let alone
stand up or walk. In my view, there is no need for this hasty
plunge into a problem where not even the wisest of experts -- if
such experts exist -- can move with sure steps.
Page 433 U. S. 388
To be sure, the public needs information concerning attorneys,
their work, and their fees. At the same time, the public needs
protection from the unscrupulous or the incompetent practitioner
anxious to prey on the uninformed. It seems to me that these twin
goals can best be served by permitting the organized bar to
experiment with and perfect programs which would announce to the
public the probable range of fees for specifically defined
services, and thus give putative clients some idea of potential
cost liability when seeking out legal assistance. [
Footnote 2/2] However, even such programs should be
confined to the known and knowable,
e.g., the truly
"routine" uncontested divorce which is defined to exclude any
dispute over alimony, property rights, child custody or support,
and should make clear to the public that the actual fee charged in
any given case will vary according to the individual circumstances
involved,
see ABA Code of Professional Responsibility DR
2106(b) (1976), in order to insure that the expectations of clients
are not unduly inflated. Accompanying any reform of this nature
must be some type of effective administrative procedure to hear and
resolve the grievances and complaints of disappointed clients.
Unfortunately, the legal profession in the past has approached
solutions for the protection of the public with too much caution,
and, as a result, too little progress has been made. However, as
MR. JUSTICE POWELL points out,
post at
433 U. S.
398-399, the organized bar has recently made some
reforms in this sensitive area, and more appear to be in the
offing. Rather than allowing these efforts to bear fruit, the Court
today opts for a Draconian "solution" which I believe will only
breed more problems than it can conceivably resolve.
Page 433 U. S. 389
[
Footnote 2/1]
I express no view on MR. JUSTICE POWELL's conclusion that the
advertisement of an attorney's initial consultation fee or his
hourly rate would not be inherently misleading, and thus should be
permitted, since I cannot understand why an "initial consultation"
should have a different charge base from an hourly rate.
Post at
433 U. S.
399-400. Careful study of the problems of attorney
advertising -- and none has yet been made -- may well reveal that
advertisements limited to such matters do not carry with them the
potential for abuse that accompanies the advertisement of fees for
particular services. However, even such limited advertisements
should not be permitted without a disclaimer which informs the
public that the fee charged in any particular case will depend on
and vary according to the individual circumstances of that case.
See ABA Code of Professional Responsibility DR 2-106(b)
(1976).
[
Footnote 2/2]
The publication of such information by the organized bar would
create no conflict with our holding in
Goldfarb v. Virginia
State Bar, 421 U. S. 773
(1975), so long as attorneys were under no obligation to charge
within the range of fees described.
MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART joins,
concurring in part and dissenting in part.
I agree with the Court that appellants' Sherman Act claim is
barred by the
Parker v. Brown, 317 U.
S. 341 (1943), exemption, and therefore join Part II of
the Court's opinion. But I cannot join the Court's holding that,
under the First Amendment, "truthful" newspaper advertising of a
lawyer's prices for "routine legal services" may not be restrained.
Ante at
433 U. S. 384.
Although the Court appears to note some reservations (mentioned
below), it is clear that, within undefined limits, today's decision
will effect profound changes in the practice of law, viewed for
centuries as a learned profession. The supervisory power of the
courts over members of the bar, as officers of the courts, and the
authority of the respective States to oversee the regulation of the
profession have been weakened. Although the Court's opinion
professes to be framed narrowly, and its reach is subject to future
clarification, the holding is explicit and expansive with respect
to the advertising of undefined "routine legal services." In my
view, this result is neither required by the First Amendment nor in
the public interest.
I
Appellants, two young members of the Arizona Bar, placed an
advertisement in a Phoenix newspaper apparently for the purpose of
testing the validity of Arizona's ban on advertising by attorneys.
The advertisement, reproduced
ante at 385 [omitted],
stated that appellants' "Legal Clinic" provided "legal services at
very reasonable fees," and identified the following four legal
services, indicating an exact price for each:
"(1) Divorce or legal separation -- uncontested (both spouses
sign papers): $175 plus $20 court filing fee."
"(2) Preparation of all court papers and instructions on how to
do your own simple uncontested divorce: $100. "
Page 433 U. S. 390
"(3) Adoption -- uncontested severance proceeding: $225 plus
approximately $10 publication cost."
"(4) Bankruptcy -- non-business, no contested proceedings --
individual: $250 plus $55 court filing fee; wife and husband: $300
plus $110 court filing fee."
"(5) Change of Name -- $95 plus $20 court filing fee."
The advertisement also stated that information regarding other
types of cases would be furnished on request. Since it is conceded
that this advertisement violated Disciplinary Rule 2-101(b),
incorporated in Rule 29(a) of the Supreme Court of Arizona,
[
Footnote 3/1] the question before
us is whether the application of the disciplinary rule to
appellants' advertisement violates the First Amendment.
The Court finds the resolution of that question in our recent
decision in
Virginia Pharmacy Board v. Virginia Consumer
Council, 425 U. S. 748
(1976). In that case, we held unconstitutional under the First and
Fourteenth Amendments a Virginia statute declaring it
unprofessional conduct for a licensed pharmacist to advertise the
prices of prescription drugs. We concluded that commercial speech
to the effect that "I will sell you the X prescription drug at the
Y price" was entitled to certain protection under the First
Amendment, and found that the proffered justifications were
inadequate to support the ban on price advertising. But we were
careful to note that we were dealing in that case with price
advertising of a
standardized product. The Court
specifically reserved judgment as to the constitutionality of state
regulation of price advertising with respect to
professional
services:
"We stress that we have considered in this case the regulation
of commercial advertising by pharmacists. Although we express no
opinion as to other professions, the distinctions, historical and
functional, between professions, may require consideration of quite
different factors. Physicians and lawyers, for example, do not
dispense
Page 433 U. S. 391
standardized products; they render professional 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."
Id. at
425 U. S. 773
n. 25 (emphasis in original). [
Footnote
3/2] This case presents the issue so reserved, and the Court
resolves it on the assumption that what it calls "routine" legal
services are essentially no different for purposes of First
Amendment analysis from prepackaged prescription drugs. In so
holding, the Court fails to give appropriate weight to the two
fundamental ways in which the advertising of professional services
presents a different issue from that before the Court with respect
to tangible products: the vastly increased potential for deception
and the enhanced difficulty of effective regulation in the public
interest.
A
It has long been thought that price advertising of legal
services inevitably will be misleading because such services are
individualized with respect to content and quality and because the
lay consumer of legal services usually does not know in advance the
precise nature and scope of the services he requires.
Ante
at
433 U. S. 372.
Although the Court finds some force in this reasoning and
recognizes that "many services performed by attorneys are indeed
unique," its first answer is the optimistic expression of hope that
few lawyers "would or could advertise fixed prices for services of
that type."
Ibid. But the Court's basic response in view
of the acknowledged potential for deceptive advertising of "unique"
services is to divide the immense range of the professional product
of
Page 433 U. S. 392
lawyers into two categories: "unique" and "routine." The only
insight afforded by the opinion as to how one draws this line is
the finding that services similar to those in appellants'
advertisement are routine: "the uncontested divorce, the simple
adoption, the uncontested personal bankruptcy, the change of name,
and the like."
Ibid. What the phrase "the like" embraces
is not indicated. But the advertising of such services must, in the
Court's words, flow "both freely and cleanly."
Ante at
433 U. S.
384.
Even the briefest reflection on the tasks for which lawyers are
trained and the variation among the services they perform should
caution against facile assumptions that legal services can be
classified into the routine and the unique. In most situations, it
is impossible -- both for the client and the lawyer -- to identify
with reasonable accuracy in advance the nature and scope of
problems that may be encountered even when handling a matter that,
at the outset, seems routine. Neither quantitative nor qualitative
measurement of the service actually needed is likely to be feasible
in advance. [
Footnote 3/3]
This definitional problem is well illustrated by appellants'
advertised willingness to obtain uncontested divorces for $195
each. A potential client can be grievously misled if he
Page 433 U. S. 393
reads the advertised service as embracing all of his possible
needs. A host of problems are implicated by divorce. They include
alimony; support and maintenance for children; child custody;
visitation rights; interests in life insurance, community property,
tax refunds, and tax liabilities; and the disposition of other
property rights. [
Footnote 3/4] The
processing of court papers -- apparently the only service
appellants provide for $10 -- is usually the most straightforward
and least demanding aspect of the lawyer's responsibility in a
divorce case. More important from the viewpoint of the client is
the diagnostic and advisory function: the pursuit of relevant
inquiries of which the client would otherwise be unaware, and
advice with respect to alternative arrangements that might prevent
irreparable dissolution of the marriage or otherwise resolve the
client's problem. [
Footnote 3/5]
Although those professional
Page 433 U. S. 394
functions are not included within appellants' packaged routine
divorce, they frequently fall within the concept of "advice" with
which the lay person properly is concerned when he or she seeks
legal counsel. The average lay person simply has no feeling for
which services are included in the packaged divorce, and thus no
capacity to judge the nature of the advertised product. [
Footnote 3/6] As a result, the type of
advertisement before us inescapably will mislead many who respond
to it. In the end, it will promote distrust of lawyers and
disrespect for our own system of justice.
The advertising of specified services at a fixed price is not
the only infirmity of the advertisement at issue. [
Footnote 3/7] Appellants also assert that these
services are offered at "very reasonable fees." The Court finds
this to be an accurate statement, since the advertised fee fell at
the lower end of the range of customary charges. But the fee
customarily charged in the locality for similar services has never
been considered the sole determinant of the reasonableness of a
fee. [
Footnote 3/8] This is because
reasonableness reflects both the quantity
Page 433 U. S. 395
and quality of the service. A $195 fee may be reasonable for one
divorce and unreasonable for another; and a $195 fee may be
reasonable when charged by an experienced divorce lawyer and
unreasonable when charged by a recent law school graduate. For
reasons that are not readily apparent, the Court today discards the
more discriminating approach which the profession long has used to
judge the reasonableness of a fee, and substitutes an approach
based on market averages. Whether a fee is "very reasonable" is a
matter of opinion, and not a matter of verifiable fact as the Court
suggests. One unfortunate result of today's decision is that
lawyers may feel free to use a wide variety of adjectives -- such
as "fair," "moderate," "low-cost," or "lowest in town" -- to
describe the bargain they offer to the public.
B
Even if one were to accept the view that some legal services are
sufficiently routine to minimize the possibility of deception,
there nonetheless remains a serious enforcement problem. The Court
does recognize some problems. It notes that misstatements that may
be immaterial in "other advertising
Page 433 U. S. 396
may be found quite inappropriate in legal advertising" precisely
because "the public lacks sophistication concerning legal
services."
Ante at
433 U. S. 383.
It also recognizes that "advertising claims as to the quality of
services . . . are not susceptible of measurement or verification,"
and therefore "may be so likely to be misleading as to warrant
restriction."
Ante at
433 U. S.
383-384. After recognizing that problems remain in
defining the boundary between deceptive and nondeceptive
advertising, the Court then observes that the bar may be expected
to have "a special role to play in assuring that advertising by
attorneys flows both freely and cleanly."
Ante at
433 U. S.
384.
The Court seriously understates the difficulties, and
overestimates the capabilities of the bar -- or indeed of any
agency public or private -- to assure with a reasonable degree of
effectiveness that price advertising can at the same time be both
unrestrained and truthful.
Ibid. There are some 400,000
lawyers in this country. They have been licensed by the States, and
the organized bars within the States -- operating under codes
approved by the highest courts acting pursuant to statutory
authority -- have had the primary responsibility for assuring
compliance with professional ethics and standards. The traditional
means have been disciplinary proceedings conducted initially by
voluntary bar committees subject to judicial review. In view of the
sheer size of the profession, the existence of a multiplicity of
jurisdictions, and the problems inherent in the maintenance of
ethical standards even of a profession with established traditions,
the problem of disciplinary enforcement in this country has proved
to be extremely difficult.
See generally ABA, Special
Committee on Evaluation of Disciplinary Enforcement, Problems and
Recommendations in Disciplinary Enforcement (1970).
The Court's almost casual assumption that its authorization of
price advertising can be policed effectively by the bar reflects a
striking underappreciation of the nature and magnitude
Page 433 U. S. 397
of the disciplinary problem. The very reasons that tend to make
price advertising of services inherently deceptive make its
policing wholly impractical. With respect to commercial
advertising, MR. JUSTICE STEWART, concurring in
Virginia
Pharmacy, noted that, since
"the factual claims contained in commercial price or product
advertisements relate to tangible goods or services, they may be
tested empirically and corrected to reflect the truth."
425 U.S. at
425 U. S. 780.
But there simply is no way to test "empirically" the claims made in
appellants' advertisement of legal services. There are serious
difficulties in determining whether the advertised services fall
within the Court's undefined category of "routine services";
whether they are described accurately and understandably; and
whether appellants' claim as to reasonableness of the fees is
accurate. These are not factual questions for which there are
"truthful" answers; in most instances, the answers would turn on
relatively subjective judgments as to which there could be wide
differences of opinion. These difficulties with appellants'
advertisement will inhere in any comparable price advertisement of
specific legal services. Even if public agencies were established
to oversee professional price advertising, adequate protection of
the public from deception, and of ethical lawyers from unfair
competition, could prove to be a wholly intractable problem.
II
The Court emphasizes the need for information that will assist
persons desiring legal services to choose lawyers. Under our
economic system, advertising is the most commonly used and useful
means of providing information as to goods and other services, but
it generally has not been used with respect to legal and certain
other professional services. Until today, controlling weight has
been given to the danger that general advertising of such services
too often would tend to mislead, rather than inform. Moreover,
there
Page 433 U. S. 398
has been the further concern that the characteristics of the
legal profession thought beneficial to society -- a code of
professional ethics, an imbued sense of professional and public
responsibility, a tradition of self-discipline, and duties as
officers of the courts -- would suffer if the restraints on
advertising were significantly diluted.
Pressures toward some relaxation of the proscription against
general advertising have gained force in recent years with the
increased recognition of the difficulty that low- and middle-income
citizens experience in finding counsel willing to serve at
reasonable prices. The seriousness of this problem has not been
overlooked by the organized bar. At both the national and state
levels, the bar has addressed the need for expanding the
availability of legal services in a variety of ways, including: (i)
group legal service plans, increasingly used by unions,
cooperatives, and trade associations; (ii) lawyer referral plans
operated by local and state bars; (iii) bar-sponsored legal
clinics; (iv) public service law firms; and (v) group insurance or
prepaid service plans. Notable progress has been made over the past
two decades in providing counsel for indigents charged with crime.
Not insignificant progress also has been made through bar-sponsored
legal aid, and, more recently, the Federal Legal Services
Corporation in providing counsel for indigents in civil cases. But
the profession recognizes that less success has been achieved in
assuring that persons who can afford to pay modest fees have access
to lawyers competent and willing to represent them. [
Footnote 3/9]
Page 433 U. S. 399
Study and experimentation continue. Following a series of
hearings in 1975, the American Bar Association amended its Code of
Professional Responsibility to broaden the information, when
allowed by state law, that a lawyer may provide in approved means
of advertising. DR 2-102 (1976). In addition to the customary data
published in legal directories, the amended regulation authorizes
publication of the lawyer's fee for an initial consultation, the
fact that other fee information is available on specific request,
and the willingness of the attorney to accept credit cards or other
credit arrangements. The regulation approves placement of such
advertisements in the classified section of telephone directories,
in the customary law lists and legal directories, and also in
directories of lawyers prepared by consumer and other groups.
The Court observes, and I agree, that there is nothing
inherently misleading in the advertisement of the cost of an
initial consultation. Indeed, I would not limit the fee information
to the initial conference. Although the skill and experience of
lawyers vary so widely as to negate any equivalence between hours
of service by different lawyers, variations in quality of service
by duly licensed lawyers are inevitable. Lawyers operate, at least
for the purpose of internal control and accounting, on the basis of
specified hourly rates, and upon request -- or in an appropriate
case -- most lawyers are willing to undertake employment at such
rates. The advertisement of these rates, in an appropriate medium,
duly designated, would not necessarily be misleading if this fee
information also made clear that the total charge for the
representation would depend on the number of hours devoted to the
client's problem -- a variable difficult to predict. Where the
price content of the advertisement is limited to the finite item of
rate per hour devoted to the client's problem, the likelihood of
deceiving or misleading is considerably
Page 433 U. S. 400
less than when specific services are advertised at a fixed
price.
III
Although I disagree strongly with the Court's holding as to
price advertisements of undefined -- and I believe undefinable --
routine legal services, there are reservations in its opinion
worthy of emphasis, since they may serve to narrow its ultimate
reach. First, the Court notes that it has not addressed "the
peculiar problems associated with advertising claims relating to
the
quality of legal services."
Ante at
433 U. S. 366.
There are inherent questions of quality in almost any type of price
advertising by lawyers, and I do not view appellants' advertisement
as entirely free from quality implications. Nevertheless the
Court's reservation in this respect could be a limiting factor.
Second, as in
Virginia Pharmacy, the Court again notes
that there may be reasonable restrictions on the time, place, and
manner of commercial price advertising. In my view, such
restrictions should have a significantly broader reach with respect
to professional services than as to standardized products. This
Court long has recognized the important state interests in the
regulation of professional advertising.
Head v. New Mexico
Board, 374 U. S. 424
(1963);
Williamson v. Lee Optical Co., 348 U.
S. 483 (1955);
Semler v. Dental Examiners,
294 U. S. 608
(1935). [
Footnote 3/10] And as to
lawyers, the
Page 433 U. S. 401
Court recently has noted 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.' [
Footnote 3/11]
Goldfarb v. Virginia State Bar,
421 U. S.
773,
421 U. S. 792 (1975).
Although the opinion today finds these interests insufficient to
justify prohibition of all price advertising, the state interests
recognized in these cases should be weighed carefully
Page 433 U. S. 402
in any future consideration of time, place, and manner
restrictions. [
Footnote
3/12]"
Finally, the Court's opinion does not
"foreclose the possibility that some limited supplementation, by
way of warning or disclaimer or the like, might be required of even
an advertisement of the kind ruled upon today so as to assure that
the consumer is not misled."
Ante at
433 U. S. 384.
I view this as at least some recognition of the potential for
deception inherent in fixed-price advertising of specific legal
services. This recognition, though ambiguous in light of other
statements in the opinion, may be viewed as encouragement to those
who believe as I do -- that, if we are to have price advertisement
of legal services, the public interest will require the most
particularized regulation.
IV
The area into which the Court now ventures has, until today,
largely been left to self-regulation by the profession within the
framework of canons or standards of conduct prescribed by the
respective States and enforced where necessary by the courts. The
problem of bringing clients and lawyers together on a mutually fair
basis, consistent with the public interest, is as old as the
profession itself. It is one of considerable complexity, especially
in view of the constantly evolving nature of the need for legal
services. The problem has not been resolved with complete
satisfaction despite diligent and thoughtful efforts by the
organized bar and others over a period of many years, and there is
no
Page 433 U. S. 403
reason to believe that today's best answers will be responsive
to future needs.
In this context, the Court's imposition of hard and fast
constitutional rules as to price advertising is neither required by
precedent nor likely to serve the public interest. One of the great
virtues of federalism is the opportunity it affords for
experimentation and innovation, with freedom to discard or amend
that which proves unsuccessful or detrimental to the public good.
The constitutionalizing -- indeed the affirmative encouraging -- of
competitive price advertising of specified legal services will
substantially inhibit the experimentation that has been underway,
and also will limit the control heretofore exercised over lawyers
by the respective States.
I am apprehensive, despite the Court's expressed intent to
proceed cautiously, that today's holding will be viewed by tens of
thousands of lawyers as an invitation -- by the public-spirited and
the selfish lawyers alike -- to engage in competitive advertising
on an escalating basis. Some lawyers may gain temporary advantages;
others will suffer from the economic power of stronger lawyers, or
by the subtle deceit of less scrupulous lawyers. [
Footnote 3/13] Some members of the public may
Page 433 U. S. 404
benefit marginally, but the risk is that many others will be
victimized by simplistic price advertising of professional services
"almost infinite [in] variety and nature. . . ."
Virginia
Pharmacy Board, 425 U.S. at
425 U. S. 773
n. 25. Until today, in the long history of the legal profession, it
was not thought that this risk of public deception was required by
the marginal First Amendment interests asserted by the Court.
[
Footnote 3/1]
The disciplinary rule is reproduced
ante at
433 U. S. 355,
and n. 5.
[
Footnote 3/2]
THE CHIEF JUSTICE, concurring in
Virginia Pharmacy,
also emphasized the distinction between tangible products and
professional services:
"The Court notes that roughly 95% of all prescriptions are
filled with dosage units already prepared by the manufacturer and
sold to the pharmacy in that form. . . . In dispensing these
prepackaged items, the pharmacist performs largely a
packaging, rather than a compounding, function of former
times."
425 U.S. at
425 U. S.
773-774 (emphasis in original).
[
Footnote 3/3]
What legal services are routine depends on the eye of the
beholder. A particular service may be quite routine to a lawyer who
has specialized in that area for many years. The marital trust
provisions of a will, for example, are routine to the experienced
tax and estate lawyer; they may be wholly alien to the negligence
litigation lawyer. And what the unsophisticated client may think is
routine simply cannot be predicted. Absent even a minimal common
understanding as to the service, and given the unpredictability in
advance of what actually may be required, the advertising lawyer
and prospective client often will have no meeting of the minds.
Although widely advertised tangible products customarily vary in
many respects, at least in the vast majority of cases, prospective
purchasers know the product and can make a preliminary comparative
judgment based on price. But not even the lawyer doing the
advertising can know in advance the nature and extent of services
required by the client who responds to the advertisement. Price
comparisons of designated services, therefore, are more likely to
mislead than to inform.
[
Footnote 3/4]
It may be argued that many of these problems are not applicable
for couples of modest means. This is by no means invariably true,
even with respect to alimony, support and maintenance, and property
questions. And it certainly is not true with respect to the more
sensitive problems of child custody and visitation rights.
[
Footnote 3/5]
A high percentage of couples seeking counsel as to divorce
desire initially that it be uncontested. They often describe
themselves as civilized people who have mutually agreed to
separate; they want a quiet, out-of-court divorce without alimony.
But experienced counsel knows that the initial spirit of amity
often fades quickly when the collateral problems are carefully
explored. Indeed, scrupulous counsel -- except in the rare case --
will insist that the parties have separate counsel to assure that
the rights of each, and those of children, are protected
adequately. In short, until the lawyer has performed his first
duties of diagnosis and advice as to rights, it is usually
impossible to know whether there can or will be an uncontested
divorce. As President Mark Harrison of the State Bar of Arizona
testified:
"I suppose you can get lucky and have three clients come in in
response to [appellants' advertisement] who have no children; no
real property; no real disagreement, and you can handle such an
uncontested divorce, and do a proper job for a [pre]determined, . .
. prestated price."
"
* * * *"
"[T]he inherent vice [is] that you can't know in advance, what
special problems the client who sees the advertisement will
present, and if you are bound to a predetermined price . . . ,
sooner or later you are going to have to inevitably sacrifice the
quality of service you are able to render."
App. 378-380.
[
Footnote 3/6]
Similar complications surround the uncontested adoption and the
simple bankruptcy.
[
Footnote 3/7]
Use of the term "clinic" to describe a law firm of any size is
unusual, and possibly ambiguous in view of its generally understood
meaning in the medical profession. Appellants defend its use as
justified by their plan to provide standardized legal services at
low prices through the employment of automatic equipment and
paralegals. But there is nothing novel or unusual about the use by
law firms of automatic equipment, paralegals, and other modern
techniques for serving clients at lower cost. Nor are appellants a
public service law firm. They are in private practice, and though
their advertising is directed primarily to clients with family
incomes of less than $25,000, appellants do not limit their
practice to this income level.
Id. at 82.
[
Footnote 3/8]
For example, the American Bar Association's Code of Professional
Responsibility specifics the "[f]actors to be considered as guides
in determining the reasonableness of a fee. . . ." DR 2-106(b)
(1976). These include:
"(1) The time and labor required, the novelty and difficulty of
the questions involved, and the skill requisite to perform the
legal service properly."
"(2) The likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude other
employment by the lawyer."
"(3) The fee customarily charged in the locality for similar
legal services."
"(4) The amount involved and the results obtained."
"(5) The time limitations imposed by the client or by the
circumstances."
"(6) The nature and length of the professional relationship with
the client."
"(7) The experience, reputation, and ability of the lawyer or
lawyers performing the service."
"(8) Whether the fee is fixed or contingent."
[
Footnote 3/9]
A major step forward was taken in 1965 with the initiation of
the legal services program of the Office of Economic Opportunity, a
program fully supported by the American Bar Association. The legal
services program is now administered by the Federal Legal Services
Corporation, created by Congress in 1976. Efforts by the profession
to broaden the availability of legal services to persons of low-
and middle-income levels also gained momentum in 1965.
[
Footnote 3/10]
Although
Semler v. Dental Examiners involved a due
process issue, rather than a First Amendment challenge, the
distinction drawn in that case between the advertisement of
professional services and commodities is highly relevant. Mr. Chief
Justice Hughes, writing for the Court, stated:
"We do not doubt the authority of the State to estimate the
baleful effects of such methods and to put a stop to them. The
legislature was not dealing with traders in commodities, but with
the vital interest of public health, and with a profession treating
bodily ills and demanding different standards of conduct from those
which are traditional in the competition of the marketplace. The
community is concerned with the maintenance of professional
standards which will insure not only competency in individual
practitioners, but protection against those who would prey upon a
public peculiarly susceptible to imposition through alluring
promises of physical relief. And the community is concerned in
providing safeguards not only against deception, but against
practices which would tend to demoralize the profession by forcing
its members into an unseemly rivalry which would enlarge the
opportunities of the least scrupulous. What is generally called the
'ethics' of the profession is but the consensus of expert opinion
as to the necessity of such standards."
294 U.S. at
294 U. S. 612.
This distinction, addressed specifically to advertising, has never
been questioned by this Court until today. Indeed,
Semler
was recently cited with approval in
Goldfarb v. Virginia State
Bar, 421 U. S. 773,
421 U. S.
792-793 (1975).
[
Footnote 3/11]
The Court's opinion is not without an undertone of criticism of
lawyers and the legal profession for their opposition to price
advertising:
e.g., (i) the reference to the profession
"condoning the actions of the attorney who structures his social or
civic associations so as to provide contacts with potential
clients,"
ante at
433 U. S. 371; and (ii) the implication that opposition
to advertising derives from the view that lawyers "belittle the
person who earns his living by the strength of his arm" and
"somehow [are] "above" trade,"
ante at
433 U. S.
371-372. This indiscriminate criticism is unjustified.
Lawyers are not hermits, and society would suffer if they were.
Members of the legal profession customarily are leaders in the
civic, charitable, cultural, and political life of most
communities. Indeed, the professional responsibility of lawyers is
thought to include the duty of civic and public participation. As a
profession, lawyers do differ from other callings. "This is not a
fancied conceit, but a cherished tradition, the preservation of
which is essential to the lawyer's reverence for his calling." H.
Drinker, Legal Ethics 211 (1963) (footnote omitted). There
certainly can be pride in one's profession without belittling those
who perform other tasks essential to an ongoing society.
[
Footnote 3/12]
The Court speaks specifically only of newspaper advertising, but
it is clear that today's decision cannot be confined on a
principled basis to price advertisements in newspapers. No
distinction can be drawn between newspapers and a rather broad
spectrum of other means -- for example, magazines, signs in buses
and subways, posters, handbills, and mail circulations. But
questions remain open as to time, place, and manner restrictions
affecting other media, such as radio and television.
[
Footnote 3/13]
It has been suggested that price advertising will benefit
younger lawyers and smaller firms, as well as the public, by
enabling them to compete more favorably with the larger,
established firms. The overtones of this suggestion are antitrust,
rather than First Amendment, in principle. But whatever the origin,
there is reason seriously to doubt the validity of the premise.
With the increasing complexity of legal practice, perhaps the
strongest trend in the profession today is toward specialization.
Many small firms will limit their practice to intensely specialized
areas; the larger, institutionalized firms are likely to have a
variety of departments, each devoted to a special area of the law.
The established specialist and the large law firm have advantages
that are not inconsiderable if price competition becomes
commonplace. They can advertise truthfully the areas in which they
practice; they enjoy economies of scale that may justify lower
prices; and they often possess the economic power to disadvantage
the weaker or more inexperienced firms in any advertising
competition. Whether the potential for increased concentration of
law practice in a smaller number of larger firms would be
detrimental to the public is not addressed by the Court.
MR. JUSTICE REHNQUIST, dissenting in part.
I join Part II of the Court's opinion holding that appellants'
Sherman Act claim is barred by the
Parker v. Brown,
317 U. S. 341
(1943), state action exemption. Largely for the reasons set forth
in my dissent in
Virginia Pharmacy Board v. Virginia Consumer
Council, 425 U. S. 748,
425 U. S. 781
(1976), however, I dissent from Part III because I cannot agree
that the First Amendment is infringed by Arizona's regulation of
the essentially commercial activity of advertising legal services.
Valentine v. Chrestensen, 316 U. S.
52 (1942);
Breard v. Alexandria, 341 U.
S. 622 (1951).
See Pittsburgh Press Co. v. Human
Relations Comm'n, 413 U. S. 376
(1973).
I continue to believe that the First Amendment speech provision,
long regarded by this Court as a sanctuary for expressions of
public importance or intellectual interest, is demeaned by
invocation to protect advertisements of goods and services. I would
hold quite simply that the appellants' advertisement, however
truthful or reasonable it may be, is not the sort of expression
that the Amendment was adopted to protect.
I think my Brother POWELL persuasively demonstrates in his
opinion that the Court's opinion offers very little guidance as to
the extent or nature of permissible state regulation of professions
such as law and medicine. I would join
Page 433 U. S. 405
his opinion except for my belief that, once the Court took the
first step down the "slippery slope" in
Virginia Pharmacy
Board, supra, the possibility of understandable and workable
differentiations between protected speech and unprotected speech in
the field of advertising largely evaporated. Once the exception of
commercial speech from the protection of the First Amendment which
had been established by
Valentine v. Chrestensen, supra,
was abandoned, the shift to case-by-case adjudication of First
Amendment claims of advertisers was a predictable consequence.
While I agree with my Brother POWELL that the effect of today's
opinion on the professions is both unfortunate and not required by
the First and Fourteenth Amendments, I cannot join the implication
in his opinion that some forms of legal advertising may be
constitutionally protected. The
Valentine distinction was
constitutionally sound and practically workable, and I am still
unwilling to take even one step down the "slippery slope" away from
it.
I therefore join Parts I and II of the Court's opinion, but
dissent from Part III and from the judgment.