21.01. Introduction

Advertising and marketing are important to law firms of all sizes.  As you will see, bar associations have been (and some still are) very interested in regulating advertising by lawyers.  As you read through this material – identify the reasons put forth for regulating this activity.  Restrictions on regulations must be balanced with the lawyer’s First Amendment free speech rights.  It is the intersection of these two – the state’s interest in regulation and the lawyer’s right to speak – that make up the core of this topic. 

The history of lawyer advertising prior to the 1950s and 1960s was largely one of suppression.  Lawyers perceived advertising as “vulgar” and unprofessional.  As one scholar put it: 

Victorian snobbery and denigrating any calling that besmirched itself by taking on the trappings of a “trade” led the socially ambitious elements of the organized bar to oppose lawyer advertising.  Virtue was its own display, and the young lawyer of puck, competence, and trustworthiness would soon gain a substantial client following through a deserved good reputation.[1]

The perspective changed in the 1970s, with Bates v. Arizona and the attack on the monopolistic activities of the bar that raised anti-trust concerns.  As you will see in our readings, after Bates, the Supreme Court (and other courts as well) have struggled with the question of precisely what can speech be regulated without violating the First Amendment.

Today, when we are in a time of rapid change when it comes to marketing, the question has moved from what should we regulate to how do we regulate.  Technological advances that make it possible for a lawyer to contact potential through a number of different platforms, and allow out-of-state lawyer instant access to in-state clients.  Communication between lawyer and client is no longer limited to television, newspaper, and radio.  Clients also have the opportunity to more informed about lawyers and the law.  Where should the balance be drawn today between regulation and free speech?  How much (if any) should on-line conduct by lawyers be regulated?  These are the ethical issues of today.

[1] Charles W. Wolfram, Modern Legal Ethics § 14.2.2 (1986).