Legal advertising in the United States

Last updated

In the United States, advertising of services by members of the profession of law is typically permitted but regulated by state court and bar association rules. [1]

Contents

Advertisements for lawyers and law firms take various forms: print, television, radio, the yellow pages, and online advertising. [2] Among the most common type of legal advertisements are those by tort lawyers, whose branch of law includes personal injury, medical malpractice, negligence, and product liability cases involving compensation for harm or damages caused by another. [3] Yet legal advertisements are used by lawyers who specialize in other areas of the practice of law, including criminal defense, bankruptcy, property law, and family law.

History

Before the Canons of Professional Ethics were published by the American Bar Association (ABA) in 1908, advertising within the legal profession was common. [4] The ABA believed that lawyer advertising was unprofessional and shone a negative light on the profession of law. [4] They also realized that a court was a place where parties can "inflict heavy losses on one another". [5] The ABA wanted to prevent the bringing forth of cases wherein there was no basis for their claim. Lawyers were still allowed to be included in law directories which contained the lawyers basic information, including their name and contact information. They were also allowed to print business cards and use professional letterhead, but otherwise advertising was strictly prohibited. The Chicago Bar Association believed that "The most worthy and effective advertisement possible...is the establishment of a well-merited reputation for professional capacity and fidelity to trust".

Concerns

In the Bates v. State Bar of Arizona case, the Arizona State Bar argued against advertising by law firms because they believed that advertising would place too much burden on the legal system. They believed that the advertising may be too effective and dangerously increase litigation. They also believed that lawyers would raise the cost of their services in order to compensate for their increased overhead due to the additional cost of advertising. Another fear was that the legal profession would be viewed as a common trade rather than the noble profession they believed they were part of. [4]

Bar associations and consumer advocates were concerned that the members of the public would not protect themselves against false or misleading lawyer advertisements. The bar also argued that legalizing advertising would cause more and more people to pursue a career in law. This was a result of a study that showed that between the years of 1951 and 1971 the number of lawyers increased by 326%. They also believed that an increase in advertising would promote a larger client base and would make it harder for lawyers to serve their clients. [4]

Bates v. State Bar of Arizona

In 1972 John Bates and Van O'steen were admitted to the State Bar of Arizona. [6] Immediately after their admittance to the bar the pair began working for the Maricopa County Legal Aid Society. [7] After working there for a period of two years they founded their own practice.

As a firm they handled cases for clients who could not qualify for government grants despite moderate incomes. Bates and O’steen decided that, rather than charge expensive fees for their services, they would focus on a large volume of cases in order to generate their income; as such, the firm focused its practice on low-fee cases such as uncontested divorces, adoptions, simple bankruptcy cases, and name changes. [7] They realized that in order to obtain the necessary volume they needed to advertise their name and their services to the public. Bates and O’steen placed an advertisement in the Arizona Republic on February 22, 1976. [6] The State Bar acted reviewed the case. Both Bates and O'steen were suspended from practicing law for six months in accordance with the regulations of the State Bar of Arizona. [6] Bates and O'steen petitioned the Arizona Supreme Court to review their case on the grounds that a total ban on advertisement violated the Sherman Antitrust Act and the First Amendment to the United States Constitution. [6] The state supreme court rejected both of their claims, but did reduce their suspensions, in part, because the court believed that Bates and O’steen advertised as a way to test the constitutionality of the ban on advertising within the legal industry. [6]

The Supreme Court of the United States recognized that they had the power to review judicial decisions of lower courts and set the case for argument. Chief Justice Warren E. Burger threw out the claim that a total ban on advertising by lawyers and law firms was in violation of the Sherman Antitrust Act. [6] He based his position on the precedent set in Goldfarb v. Virginia State Bar . This case set the precedent that "lawyers engage in trade or commerce," and lawyers and the practice of law were therefore NOT exempt from the Sherman Antitrust Act.

On the claim of the violation of free speech, the Supreme Court ruled in favor of Bates and O'steen, stating that Arizona's ban of advertising "inhibit[ed] the free flow of information and ke[pt] the public in ignorance". [6] The Supreme Court therefore removed the ban on advertising. However, they still allowed the State Bar to "regulate" advertising in order to make certain that the information presented was true and did not mislead others or make false claims. State bar associations across the country quickly began to lift their bans on advertising. [8]

Advertising boom

After the U.S. Supreme Court decision, law firm advertising activity increased significantly. [3] Initially the majority of lawyer advertisements were directed at "car wreck" victims. Later, advertising attempted to recruit clients affected by medications that were recalled for safety reasons or had unanticipated or undisclosed side effects.

In the top 75 television markets nationwide, 2,000 lawyers advertise on television and spend close to $200 million collectively on advertising. [9] Twenty percent of low-income households who have sought after legal counsel or advice have found their lawyer through the lawyer’s advertisements. [10]

It is estimated that 75 percent of law firms advertise. [4] Research has suggested that the smaller the firm the more likely they are to advertise. According to an article published in the Service Marketing Quarterly, 94% of Americans are familiar with lawyer television advertisements.

Regulations

The ABA has laid down a standard for regulation of lawyer advertising: “The state may prohibit speech that is false or misleading. If the communications are truthful and non-deceptive, the state may limit [advertisements] if the state asserts a substantial government interest. The regulation under scrutiny must directly advance state interest. The regulation must be a reasonable fit narrowly tailored to achieve the desired objective." [10] There has conflict between law firms and the ABA since lawyer advertising was made legal.

The ABA's rules do not have force of law and are not enforced by state bar associations. Individual state bar associations continue to restrict and regulate advertisements. For example, New York print ads are only allowed to contain the address and phone number and only print specialties unless the firm is licensed in that specialty.

Court cases that have been filed challenging advertisements typically involve advertising that is absurd to crude but more often than not the advertiser wins as courts uphold the lawyer’s right of free speech. For example, a case in Florida is being reviewed by the Supreme Court of Florida in which lawyers sent direct-mail solicitations to those who had been affected by wrongful-death or personal injury. [10]

Forms of advertising

In past decades, legal advertising relied heavily on traditional phone directories, notably including Yellow Pages advertisements. In more recent years, as the use of traditional telephone directories has declined, advertisement efforts have shifted to other media and technologies.

Lawyers advertise in traditional media, including television, the radio and in newspapers. Due to the cost of television advertising, marketing through television is usually limited to a small number of law firms with large advertising budgets, and to lawyer networks and commercial referral services that direct clients to participating lawyers. Relatively small numbers of lawyers advertise on radio. With the decline of the printed newspaper, much lawyer advertising has shifted away from print and has gone online. [11]

Some lawyers have historically marketed their services through client newsletters. Historically newsletters were printed documents that were mailed to clients. Many law firm newsletters are now offered by email. [12]

Some lawyers directly market themselves to potential clients by direct mail. For targeted direct mail, lawyers may obtain information about people who have potential legal issues from public records or other sources, then contact those potential clients to indicate that they are available to provide representation. Direct mail advertising must be conducted carefully to avoid violating state rules of professional conduct. Lawyers may also send non-targeted advertisements by mail, such as general information about their law firm and its services or invitations to attend seminars conducted by the firm.

Most law firms now have at least a basic website to market their services. Many law firms use various forms of online marketing and advertisement to reach prospective clients, including promotions through media focused on their local market, participation in advertising networks, the use of social media, and online directories and referral services. Some lawyers market themselves by publishing information online, whether on their own websites or weblogs, or through third party websites.

See also

Related Research Articles

<span class="mw-page-title-main">Barrister</span> Lawyer specialised in court representation in certain jurisdictions

A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include arguing cases in courts and tribunals, drafting legal pleadings, researching the law and giving legal opinions.

In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister, solicitor, or civil law notary. However, there is a substantial amount of overlap between the practice of law and various other professions where clients are represented by agents. These professions include real estate, banking, accounting, and insurance. Moreover, a growing number of legal document assistants (LDAs) are offering services which have traditionally been offered only by lawyers and their employee paralegals. Many documents may now be created by computer-assisted drafting libraries, where the clients are asked a series of questions that are posed by the software in order to construct the legal documents. In addition, regulatory consulting firms also provide advisory services on regulatory compliance that were traditionally provided exclusively by law firms.

A bar association is a professional association of lawyers as generally organized in countries following the Anglo-American types of jurisprudence. The word bar is derived from the old English/European custom of using a physical railing to separate the area in which court business is done from the viewing area for the general public.

<span class="mw-page-title-main">Paralegal</span> Paraprofessional who assists qualified lawyers in their legal work

A paralegal, also known as a legal assistant, or paralegal specialist is a legal professional who performs tasks that require knowledge of legal concepts but not the full expertise of a lawyer with an admission to practice law. The market for paralegals is broad, including consultancies, companies that have legal departments or that perform legislative and regulatory compliance activities in areas such as environment, labor, intellectual property, zoning, and tax. Legal offices and public bodies also have many paralegals in support activities using other titles outside of the standard titles used in the profession. There is a diverse array of work experiences attainable within the paralegal field, ranging between internship, entry-level, associate, junior, mid-senior, and senior level positions.

Legal ethics are principles of conduct that members of the legal profession are expected to observe in their practice. They are an outgrowth of the development of the legal profession itself.

<span class="mw-page-title-main">American Bar Association</span> American association of lawyers

The American Bar Association (ABA) is a voluntary bar association of lawyers and law students; it is not specific to any jurisdiction in the United States. Founded in 1878, the ABA's stated activities are the setting of academic standards for law schools, and the formulation of model ethical codes related to the legal profession. As of fiscal year 2017, the ABA had 194,000 dues-paying members, constituting approximately 14.4% of American attorneys. In 1979, half of all lawyers in the U.S. were members of the ABA. The organization's national headquarters are in Chicago, Illinois, and it also maintains a significant branch office in Washington, D.C.

<span class="mw-page-title-main">State Bar of California</span> Californias official attorney licensing agency

The State Bar of California is an administrative division of the Supreme Court of California which licenses attorneys and regulates the practice of law in California. It is responsible for managing the admission of lawyers to the practice of law, investigating complaints of professional misconduct, prescribing appropriate discipline, accepting attorney-member fees, and financially distributing sums paid through attorney trust accounts to fund nonprofit legal entities. It is directly responsible to the Supreme Court of California; however, its trustees are now appointed by the Supreme Court, the California Legislature, and Governor of California. All attorney admissions are issued as recommendations of the State Bar, which are then routinely ratified by the Supreme Court. Attorney discipline is handled by the State Bar Office of Chief Trial Counsel, which acts as prosecutor before the State Bar Court of California. The State Bar has been cited for its corrupt practices during the 21st century, and is subject to reforms issued by its governing body, the California Supreme Court.

Attorney misconduct is unethical or illegal conduct by an attorney. Attorney misconduct may include: conflict of interest, overbilling, false or misleading statements, knowingly pursuing frivolous and meritless lawsuits, concealing evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while neglecting to disclose prior law which might counter the argument, or having sex with a client.

Legal advertising is advertising by lawyers (attorneys), solicitors and law firms. Legal marketing is a broader term referring to advertising and other practices, including client relations, social media, and public relations. It's a type of marketing undertaken by law firms, lawyers (attorneys) and solicitors that aims to promote the services of law firms and increase their brand awareness.

Law practice management (LPM) is the management of a law practice. In the United States, law firms may be composed of a single attorney, of several attorneys, or of many attorneys, plus support staff such as paralegals/legal assistants, secretaries, and other personnel.

Bates v. State Bar of Arizona, 433 U.S. 350 (1977), was a United States Supreme Court case in which the Court upheld the right of lawyers to advertise their services. In holding that lawyer advertising was commercial speech entitled to protection under the First Amendment, the Court upset the tradition against advertising by lawyers, rejecting it as an antiquated rule of etiquette.

Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), was a United States Supreme Court case in which the Court upheld a state's restriction on lawyer advertising under the First Amendment's commercial speech doctrine. The Court's decision was the first time it did so since Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lifted the traditional ban on lawyer advertising.

The Oregon State Bar (OSB) is a public corporation and instrumentality of the Oregon Judicial Department in the U.S. state of Oregon. Founded in 1890 as the private Oregon Bar Association, it became a public entity in 1935 that regulates the legal profession. The public corporation is part of the Oregon Judicial Department.

Jacoby & Meyers is an American law firm established as a partnership by Leonard Jacoby and Stephen Meyers (1943–1996) that used an extensive advertising campaign to build exposure and awareness of the firm, growing from a single storefront to as many as 150 offices in Arizona, California, Connecticut, New Jersey, New York, and Pennsylvania. It now has more than 300 attorneys practicing law in all 50 states.

The American Bar Association's Model Rules of Professional Conduct (MRPC) are a set of rules and commentaries on the ethical and professional responsibilities of members of the legal profession in the United States. Although the MRPC generally is not binding law in and of itself, it is intended to be a model for state regulators of the legal profession to adopt, while leaving room for state-specific adaptations. All fifty states and the District of Columbia have adopted legal ethics rules based at least in part on the MRPC.

Unbundled legal services, also known as limited scope representation and discrete task representation, is a method of legal representation in which an attorney and client agree to limit the scope of the attorney’s involvement in a lawsuit or other legal action, leaving responsibility for those other aspects of the case to the client in order to save the client money and give them more control. Unbundled legal services, limited scope retainers or discrete task representation are available in multiple jurisdictions, including the United States, as well as the Canadian provinces of British Columbia and Ontario. One common use of unbundled legal services is family law, as a case is often too complex for a pro se litigant to handle alone but the cost of full-service legal representation is often prohibitive.

The Alaska Bar Association (ABA) is a mandatory bar association responsible for the Alaska Supreme Court and for the admission and discipline process of attorneys for the state of Alaska.

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), was a United States Supreme Court case in which the Court held that states can require an advertiser to disclose certain information without violating the advertiser's First Amendment free speech protections as long as the disclosure requirements are reasonably related to the State's interest in preventing deception of consumers. The decision effected identified that some commercial speech may have weaker First Amendment free speech protections than non-commercial speech and that states can compel such commercial speech to protect their interests; future cases have relied on the "Zauderer standard" to determine the constitutionality of state laws that compel commercial speech as long as the information to be disclosed is "purely factual and uncontroversial".

Ohralik v. Ohio State Bar Association, 436 US 447 (1978), was a decision by the Supreme Court of the United States that in-person solicitation of clients by lawyers was not protected speech under the First Amendment of the U.S. Constitution.

Peel v. Attorney Disciplinary Commission of Illinois, 496 US 91 (1990), was a decision of the Supreme Court of the United States that Illinois' rule against attorneys advertising themselves as "certified" violated their freedom of speech under the First Amendment. The Illinois Attorney Registration and Disciplinary Commission (IARDC) had found that Peel's letterhead, which stated that he was "Certified Civil Trial Specialist By the National Board of Trial Advocacy," had broken state professional rules, and the Illinois Supreme Court had adopted their recommendation of public sanction. The U.S. Supreme Court reversed, saying the letterhead was truthful, and the First Amendment favored disclosure over concealing information.

References

  1. ↑ "Professionalism & Ethics in Lawyer Advertising". American Bar Association. 2 June 2016. Retrieved 5 December 2017.
  2. ↑ Blankenship, Gary (15 February 2007). "Board takes new tack on lawyer Web sites". The Florida Bar News. Florida State Bar. Retrieved 5 December 2017.
  3. 1 2 Li, Victor (April 2017). "Legal advertising blows past $1 billion and goes viral". ABA Journal. Retrieved 5 December 2017.
  4. 1 2 3 4 5 Parkinson, Michael G., and Sabrina Neeley. "Attorney Advertising: Does It Meet Its Objective?" Services Marketing Quarterly. 24.3 (2003).
  5. ↑ Reichstein, Kenneth J. "Ambulance Chasing: A Case Study of Deviation and Control Within the Legal Profession". Society for the Study of Social Problems. 13.1 (1965): 3-17.
  6. 1 2 3 4 5 6 7 Morgan, Thomas D. Legal Ethics (2005), p. 145.
  7. 1 2 Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
  8. ↑ Journal of Accountancy 143.5 (1977): 27-28.
  9. ↑ Freedman, Michael. "New Techniques in Ambulance Chasing." Forbes. 168.12 (2001): 56-8.
  10. 1 2 3 Fulkerson, Jennifer. "When Lawyers Advertise". American Demographics. 17.6 (1995): 54-6.
  11. ↑ King, Josh (26 September 2012). "Print or Online Advertising: Getting it Right". attorneyatwork. Retrieved 5 December 2017.
  12. ↑ Bowles, L. Elizabeth (December 2004). "Spam and your law practice" (PDF). American Bar Association. Retrieved 5 December 2017.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.