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g a z e t t e
april 1982
The Limits of Lawyer
Advertising in America Today
by
R. H. S. Tur
Reprinted, with kind permission, from the Journal of the Law Society of Scotland
'It is a mathematical fact that the casting of this pebble
from my hand alters the centre of gravity of the universe'
— Thomas Carlyle.
Recently, that is from 1 st November 1978, the Council
of the Law Society of Scotland has relaxed the Practice
Rules relating to advertising, allowing that solicitors may
advertise when an established business is taken over by
new management, or where an entirely new business is
established and, in particular: 'Where any practice unit
carries on business or proposes to carry on business or
establish an office or branch office in an area which in the
opinion of the Council is one in which there is an
inadequate supply of legal services or where, in the
opinion of the council, the availability of that supply is
insufficiently known to the pub l i c . . .' (Rule 6). Such
businesses established in 'special areas' may advertise
their existence and the nature of the legal services offered
by way of up to eight separate advertisements in the public
Press during a six-month period from the date of the first
advertisement. They may be permitted to advertise
beyond this 'as the Council may in its sole discretion
approve' and 'the content and format of all (Rule 6)
advertisements' are subject to prior approval of the
Council. Though cautious, this step is to be welcomed.
None the less, the Law Society appears quite unready
to contemplate the stronger draught of full-blooded price
advertising by lawyers of routine services such as exists in
America as a result of the
Bates
case (treated of by your
author in 1977 JLSS, 286-292).
That decision called forth much adverse criticism, the
gravamen being that it would permit all manner of abuses
by lawyers cloaking their crude commercialism and
obscuring their obnoxious overreaching with the
protection granted to speech, including 'commercial
speech', by the First Amendment.
Thus, Chief Justice Burger seeks to balance the public
need for information about lawyers, their work and their
fees with the protection of the public from 'the
unscrupulous, or the incompetent practitioner anxious to
prey on the uninformed'. He suggests that the organised
legal profession might announce to the public the probable
range
of fees in preference to permitting individual
lawyers the freedom to advertise their services and their
prices. The Chief Justice believes this latter more likely to
undermine than to serve the public interest. Mr Justice
Powell is of like mind. He i s ' . . . 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 lawyer alike — to engage in competitive advertising
on an escalating basis'. He admits that some members of
the public might benefit but believes that the risk is that
many others will be victimised by simplistic price
advertising of professional services which are so diverse
and peculiar as to defy realistic price standardisation. Mr
Justice Rehnquist, too, is unhappy with the decision in
Bates.
Apart from the anachronistic view that the First
Amendment protects only really important speech, such
as the expression of political or religious views and ideals,
and not such 'essentially commercial' activities as
advertising legal services — an application which
demeans the First Amendment — he criticises the
decision as offering but 'little guidance' as to the extent or
nature of permissible lawyer advertising. The decision is
seen as akin to the camel's nose in the tent, the thin edge of
the wedge which is a portent of imminent havoc! Indeed,
the protection of'commercial' as well as 'political' speech,'
an extension of the First Amendment established in
Virginia Pharmacy Board v. Virginia Consumer Council
425 us 748 (1976) is seen by Rehnquist as the 'first step
down the "slippery slope", the image standardly conjured
up by those whose feelings outrun their rational
arguments!
Thus, a widely canvassed criticism of the
Bates
decision is that it is insufficiently precise. But this criticism
sets too high a standard for any landmark decision. No
decision can determine an issue in all directions.
Frequently a series of decisions is required fully to work
out the implementation of a principle such as freedom of
speech in its application, first, to commercial speech
generally, and second, to lawyers' price advertising. That
is the American way. Your author stated it thus, in the
article already referred to: 'In the business of sensitive
adjustment of interests, of responding to the requirements
of different elements of society and in synthesising
opposing tendencies the Supreme Court is truly
"supreme". It engages in an on-going dialectical law-
making enterprise and not in a once and for all
determination of the law.' Law is thus developed
pragmatically, case by case; empirically, in the light of
experience. Consequently, one would expect cases
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