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Solicitors to Solicit?
John F. Buckley, Solicitor
The decision of the Examiner of Restrictive Practices to
investigate the restrictions on advertising imposed on
Solicitors in the Republic has focussed attention on recent
developments in the United States and Great Britain
where similar restrictions have been condemned by very
different bodies. The United States Supreme Court and
the U.K. Monopolies Commission have respectively held
that the restriction on advertising offended against the
protection of freedom of speech contained in the First
Amendment to the U.S. Constitution and that the
monopoly situation which exists in favour of Solicitors in
England and Wales involving restrictions on the
advertising of Solicitors' Services operates, and may be
expected to operate, against the public interest.
Before considering what precise relevance these recent
developments have for our present position it may be
useful to enquire as to how these decisions came to be
taken and the reasoning behind them. The U.S. Supreme
Court came to consider the question of advertising
following a 1976 decision, which held that consumers had
"a right to receive price advertising of prescription
drugs", in a case in which John R. Bates and Van
O'Steen challenged the decision of the Slate Bar of
Arizona that an advertisement placed by Messrs. Bates
and O'Steen in a newspaper called "The Arizona
Republic" (see insert) violated the total ban on advertising
by private attorneys contained in Disciplinary Rule 2-
101(B) of the American Bar Association's Code of
Professional Responsibility adopted by the Supreme
Court of Arizona as Rule 29 (a). The challenge was based
on two grounds —
(i) that the ban violated the freedom of speech provisions
of the First Amendment and
(ii) that the ban violated the Anti Trust legislation (the
Sherman Act).
The second ground was unanimously rejected by the
Court because the fact that the regulation was made by
the State Supreme Court made it State action which is
exempt from Sherman Act control. (An indication that
this part of the decision was solely based cn that technical
ground was given by the Courts previous ruling in
Coldfarb v. Virginia Bar
holding that a County Bar
Associations minimum fee-schedules did ofTend against
the Sherman Act).
The U.S. Supreme Court in Bates and O'Steen rejected
the arguments against advertising, advanced on behalf of
the Arizona Bar as follows:
(1) Its adverse cfTect on professionalism on the
grounds that the relationship of lawyer and client is a
commercial one; the belief that lawyers are "above" trade
has become an anachronism and the foundation for the
restriction on advertising has crumbled.
(2) The inherently misleading nature of a lawyer
advertising on the ground that only the routine services
will lend themselves to advertising.
(3) The adverse effect on the administration of justice
in the "stirring up" of litigation — on the ground that the
Court would not accept the notion that it is always better
for a person to suffer a wrong silently than seek redress
by legal action.
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<• ADVERTlSEMENTkMaoMMMmM
DOyOU.SSEBi
LEGAL SERVICES
A T VERYREASONABLEFEES
* Divorce or legal separation-uncontested
[both spouses sign papers]
J175 00 plus 120 00 court filing fee
* Preparation of'all court papers and instruc-
tions on how to do your own simple
uncontested divorce
1100 00
* Adoption-uncontested severance proceeding
1225 00 plus approximately 110 00 publica-
tion cost
* Bankruptcy-non-business, no contested pro-
ceedings
Individual
1250 00 plus 155 00 court filing fee
Wife and Husband
1300 00 plus 1110.00 court filing fee
* Change of Name
195.00 plus 120.00 court filing fee
Information regarding other types of cases
furnished on request
Legal Clinic of Bates & O'Steen
617 North 3rd Street
Phoenix. Arizona 85004
Telephone [602)252-8888
>
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