During the past decade, the courts have sought to define the nature and extent of permissible advertising by lawyers. In a series of decisions, the U.S. Supreme Court has held that lawyer advertising which is not false or misleading is commercial speech entitled to protection under the First Amendment of the U.S. Constitution.
Pending further clarification by the courts, some advertising practices exist which may be detrimental. Some forms of advertising may adversely affect public perceptions about the justice system itself. For example, empirical evidence suggests that undignified advertising can detract from the public's confidence in the legal profession and respect for the justice system.
Under present case law, the matter of dignity is widely believed to be so subjective as to be beyond the scope of constitutionally permitted regulation. Nevertheless, it seems entirely proper for the organized bar to suggest non binding aspirational goals urging lawyers who wish to advertise to do so in a dignified manner. Although only aspirational, such goals must be scrupulously sensitive to fundamental constitutional rights of lawyers and the needs of the public.
It is the role and responsibility of lawyers to provide legal services to the public. It has been demonstrated by responsible studies that people sometimes do not receive needed legal services, either because they are unaware of available services, don't understand how they can benefit from those services or don't understand how to obtain them. Therefore, it is also the legal profession's responsibility to inform the public about the availability of legal services and how to obtain and use them.
Advertising is one of many methods by which lawyers can inform the public about legal services. Although most people find a lawyer through word of mouth networks of family, friends and work associates, when properly done, advertising can help people to better understand the legal services available to them and how to obtain those services.
When properly done, advertising can also be a productive way for lawyers to build and maintain their client bases. Advertising and other forms of marketing can enable lawyers to attain efficiencies of scale which may help make legal services more affordable. As the Supreme Court pointed out in Bates v. State Bar of Arizona, 433 U.S. 350, 377 (1977), it is "entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer." Lawyers are at all times officers of the court, and as such, they have a special obligation to assure that their conduct conforms to the highest ideals of the legal profession. Thus, lawyers who advertise should be mindful not only of the effect their advertising may have on their own professional image but also of the effect it may have on the public's overall perception of the judicial system.
If lawyer advertising avoids false, misleading or deceptive representations, or coercive or misleading solicitation, it advances the goal of bringing needed legal services to more people than are now being served.
However, when advertising though not false, misleading or deceptive degenerates into undignified and unprofessional presentations, the public is not served, the lawyer who advertised does not benefit and the image of the judicial system may be harmed.
Accordingly, lawyer advertising should exemplify the inherent dignity and professionalism of the legal community. Dignified lawyer advertising tends to inspire public confidence in the professional competence and ability of lawyers and portrays the commitment of lawyers to serve clients' legal needs in accordance with the ethics and public service tradition of a learned profession.
Lawyer advertising is a key facet of the marketing and delivery of legal services to the public. The professional conduct rules for lawyers adopted by the states regulate some aspects of lawyer advertising, but they also leave lawyers much latitude to decide how to advertise. The following Aspirational Goals are presented in an effort to suggest how lawyers can achieve the beneficial goals of advertising while minimizing or eliminating altogether its negative implications.
These aspirational goals are not intended to establish mandatory requirements which might form the basis for disciplinary enforcement. Rules of Professional Conduct and Disciplinary Rules of Codes of Professional Responsibility in effect in all jurisdictions establish the standards which all lawyers who advertise must meet. Rather, these aspirational goals are intended to provide suggested objectives which all lawyers who engage in advertising their services should be encouraged to achieve in order that lawyer advertising may be more effective and reflect the professionalism of the legal community.
1. Lawyer advertising should encourage and support the public's confidence in the individual lawyer's competence and integrity as well as the commitment of the legal profession to serve the public's legal needs in the tradition of the law as a learned profession.
2. Since advertising may be the only contact many people have with lawyers, advertising by lawyers should help the public understand its legal rights and the judicial process and should uphold the dignity of the legal profession.
3. While "dignity" and "good taste" are terms open to subjective interpretation, lawyers should consider that advertising which reflects the ideals stated in these Aspirational Goals is likely to be dignified and suitable to the profession.
4. Since advertising must be truthful and accurate, and not false or misleading, lawyers should realize that ambiguous or confusing advertising can be misleading.
5. Particular care should be taken in describing fees and costs in advertisements. If an advertisement states a specific fee for a particular service, it should make clear whether or not all problems of that type can be handled for that specific fee. Similar care should be taken in describing the lawyer's areas of practice.
6. Lawyers should consider that the use of inappropriately dramatic music, unseemly slogans, hawkish spokespersons, premium offers, slapstick routines or outlandish settings in advertising does not instill confidence in the lawyer or the legal profession and undermines the serious purpose of legal services and the judicial system.
7. Advertising developed with a clear identification of its potential audience is more likely to be understandable, respectful and appropriate to that audience, and, therefore, more effective. Lawyers should consider using advertising and marketing professionals to assist in identifying and reaching an appropriate audience.
8. How advertising conveys its message is as important as the message itself. Again, lawyers should consider using professional consultants to help them develop and present a clear message to the audience in an effective and appropriate way.
9. Lawyers should design their advertising to attract legal matters which they are competent to handle.
10. Lawyers should be concerned with making legal services more affordable to the public. Lawyer advertising may be designed to build up client bases so that efficiencies of scale may be achieved that will translate into more affordable legal services.
The debate within the legal profession over the propriety of lawyer advertising has not abated in the years since the U.S. Supreme Court ruled in 1977 that the states could not prohibit lawyers and other professionals from advertising their services.
On the one hand, more lawyers accept and engage in advertising every year as a means of providing consumers, especially those of moderate and low incomes, with information about the availability and cost of legal services while building their client bases in the increasingly competitive legal marketplace. On the other hand, many leaders of the organized bar and many practitioners have accepted lawyer advertising only with reluctance. They view advertising as being contrary to the traditional view that lawyers should refrain from active self promotion as a sign of integrity and professional independence. They are also concerned that abuses of the right to advertise can mislead legal consumers and weaken the public's image of lawyers and the legal system.
The ABA Commission on Advertising has studied the many facets of the lawyer advertising issue since it was created in 1977. Based on its collective experience in dealing with the issue, and its work in the area, the Commission in 1986 began writing a statement that would briefly summarize what it considered to be essential ideas on how lawyers can advertise in an effective yet appropriate fashion. The result of the Commission's efforts are the Aspirational Goals for Lawyer Advertising, which were adopted by the ABA House of Delegates in August 1988.
Contact Art Garwin by e-mail: Art.Garwin@americanbar.org for more information.