Appellants
John R. Bates, Van O'Steen
Appellee
State Bar of Arizona
Appellants' Claim
That state rules prohibiting lawyers from advertising violate the Sherman Antitrust Act by restraining trade, and violate the First Amendment by inhibiting free speech.
Chief Lawyer for Appellants
William C. Canby, Jr.
Chief Lawyer for Appellee
John P. Frank
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., ThurgoodMarshall, Jr., John Paul Stevens, Byron R. White
Justices Dissenting
Warren E. Burger, Lewis F. Powell, William H. Rehnquist, Potter Stewart
Place
Washington, D.C.
Date of Decision
27 June 1977
Decision
Although the U.S. Supreme Court disregarded the petitioner's antitrust claim,citing their right of free speech, as well as the public's right to receivetheir message concerning competitive legal fees, the Court ruled in favor oflawyers John Bates and Van O'Steen.
Significance
By emphasizing the public's right to know about legal fees, the Court openedthe profession up to greater competition and added to the development of thecommercial speech doctrine, which extends some First Amendment protections toadvertising.
John Bates and Van O'Steen were attorneys licensed to practice law in the state of Arizona. Together, they opened a legal clinic in Phoenix, and by accepting only a limited range of uncomplicated cases and making extensive use of such cost-saving measures as paralegal support and standardized legal forms, they were able to provide legal services for modest fees. After two years, they decided that their practice would only survive if they advertised their fees to the community. In doing so, however, they violated a state bar disciplinary rule--included in the rules of the Arizona Supreme Court--prohibiting lawyers from publicizing themselves commercially. The State Bar's Board of Governors responded by recommending that both Bates and O'Steen be suspended fromthe practice of law for a week. After the Arizona Supreme Court upheld theirsuspension, the two lawyers appealed this ruling directly to the U.S. SupremeCourt.
Justice Blackmun, writing for the Court, had no trouble dispensing with Batesand O'Steen's argument that the Arizona disciplinary rule prohibiting lawyeradvertising was an illegal restraint of trade. The Sherman Antitrust Act, which the appellants cited to support this proposition, did not apply to theircase, as the disciplinary rule was an act of a sovereign state government which was not subject to federal regulation. The First Amendment argument, however, proved convincing.
Commercial Speech Doctrine Extended to Lawyer Advertising
A year earlier, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Court had decided its first landmark commercial speech case. Justice Blackmun, who also wrote the opinion of the Court inthe earlier case, had declared unconstitutional a statute barring advertisingof prescription drug prices. The commercial speech doctrine provides that advertisements which convey valuable information to consumers merit some FirstAmendment protection. Such protection does not extend, however, to advertising that is false or misleading; unlike ordinary speech, commercial speech is subject to content regulation.
Bates extended the ruling in Virginia State Board of Pharmacy to attorney advertising. As in the earlier case, the First Amendment protection afforded was limited.
The Court approved a "time, place, and manner" restriction the very next yearin Ohralik v. Ohio State Bar Association (1978), in which a policy ofbarring all in-person solicitation by lawyers was upheld.
The concern expressed by the Arizona State Bar Association in Bates was that attorney advertising would have an adverse effect on professionalism.It was the same concern expressed by the Virginia Bar Association in Goldfarb v. Virginia State Bar (1975) two years earlier, when the Supreme Court prohibited the bar association from mandating a fee schedule. Just as ChiefJustice Burger dismissed such concerns in Goldfarb, so Blackmun dismissed them in Bates. It was anachronistic to assert that lawyers are somehow above the "trade," he wrote, when the ban on advertising was apparentlybased on an antique British rule of etiquette and not on any ethical considerations. When bar associations object that price competition among lawyers will cut into the quality of lawyering, they are advancing a disingenuous argument in an attempt to perpetuate the comprehensive self-regulation the profession had enjoyed for so long. With Bates, however, consumers were givenaccess to important information that would help them to decide which lawyerswere worth their money.
Related Cases
Advertising Lawyers
Lawyer advertising provides customers with information about legal services,legal rights, and a direct means of finding an attorney. The advertising mustbe truthful, not misleading or deceptive in any way. Phone directories, newspapers, newsletters, radio, television, and Internet homepages are all considered appropriate media. Advertising standards are based on the American Bar Association's (ABA) Moral Code of Professional Responsibility. States can develop their own guidelines based on these standards.
A 1990 study by the ABA's Commission on Advertising concerning lawyer's perceptions about advertising acceptability showed variations by age groups. Of those younger than 35 years of age, 85 percent said print and TV ads were acceptable under certain conditions. However, of those over 55, only 48 percent approved print and 65 percent television.
In a 1993 Gallup Poll commissioned by the ABA, 61 percent of respondents indicated their firms participated in at least one method of advertising. In 1993lawyers spent $419 million on yellow page ads compared to $120 million on television.
Sources
American Bar Association, Lawyer Advertising at the Crossroads: Professional Policy Considerations. Chicago: American Bar Association, Commission on Advertising, 1995.
John R. Bates, Van O'Steen
Appellee
State Bar of Arizona
Appellants' Claim
That state rules prohibiting lawyers from advertising violate the Sherman Antitrust Act by restraining trade, and violate the First Amendment by inhibiting free speech.
Chief Lawyer for Appellants
William C. Canby, Jr.
Chief Lawyer for Appellee
John P. Frank
Justices for the Court
Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., ThurgoodMarshall, Jr., John Paul Stevens, Byron R. White
Justices Dissenting
Warren E. Burger, Lewis F. Powell, William H. Rehnquist, Potter Stewart
Place
Washington, D.C.
Date of Decision
27 June 1977
Decision
Although the U.S. Supreme Court disregarded the petitioner's antitrust claim,citing their right of free speech, as well as the public's right to receivetheir message concerning competitive legal fees, the Court ruled in favor oflawyers John Bates and Van O'Steen.
Significance
By emphasizing the public's right to know about legal fees, the Court openedthe profession up to greater competition and added to the development of thecommercial speech doctrine, which extends some First Amendment protections toadvertising.
John Bates and Van O'Steen were attorneys licensed to practice law in the state of Arizona. Together, they opened a legal clinic in Phoenix, and by accepting only a limited range of uncomplicated cases and making extensive use of such cost-saving measures as paralegal support and standardized legal forms, they were able to provide legal services for modest fees. After two years, they decided that their practice would only survive if they advertised their fees to the community. In doing so, however, they violated a state bar disciplinary rule--included in the rules of the Arizona Supreme Court--prohibiting lawyers from publicizing themselves commercially. The State Bar's Board of Governors responded by recommending that both Bates and O'Steen be suspended fromthe practice of law for a week. After the Arizona Supreme Court upheld theirsuspension, the two lawyers appealed this ruling directly to the U.S. SupremeCourt.
Justice Blackmun, writing for the Court, had no trouble dispensing with Batesand O'Steen's argument that the Arizona disciplinary rule prohibiting lawyeradvertising was an illegal restraint of trade. The Sherman Antitrust Act, which the appellants cited to support this proposition, did not apply to theircase, as the disciplinary rule was an act of a sovereign state government which was not subject to federal regulation. The First Amendment argument, however, proved convincing.
Commercial Speech Doctrine Extended to Lawyer Advertising
A year earlier, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Court had decided its first landmark commercial speech case. Justice Blackmun, who also wrote the opinion of the Court inthe earlier case, had declared unconstitutional a statute barring advertisingof prescription drug prices. The commercial speech doctrine provides that advertisements which convey valuable information to consumers merit some FirstAmendment protection. Such protection does not extend, however, to advertising that is false or misleading; unlike ordinary speech, commercial speech is subject to content regulation.
Bates extended the ruling in Virginia State Board of Pharmacy to attorney advertising. As in the earlier case, the First Amendment protection afforded was limited.
In holding that advertising by attorneysmay not be subjected to blanket suppression, and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way . . . Advertising that is false, deceptive, ormisleading of course is subject to restraint . . . In fact, because the public lacks sophistication concerning legal services, misstatements that might beoverlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising . . . As with other varieties of speech, it follows as well that there may be reasonable restrictions on the time, place,and manner of advertising.
The Court approved a "time, place, and manner" restriction the very next yearin Ohralik v. Ohio State Bar Association (1978), in which a policy ofbarring all in-person solicitation by lawyers was upheld.
The concern expressed by the Arizona State Bar Association in Bates was that attorney advertising would have an adverse effect on professionalism.It was the same concern expressed by the Virginia Bar Association in Goldfarb v. Virginia State Bar (1975) two years earlier, when the Supreme Court prohibited the bar association from mandating a fee schedule. Just as ChiefJustice Burger dismissed such concerns in Goldfarb, so Blackmun dismissed them in Bates. It was anachronistic to assert that lawyers are somehow above the "trade," he wrote, when the ban on advertising was apparentlybased on an antique British rule of etiquette and not on any ethical considerations. When bar associations object that price competition among lawyers will cut into the quality of lawyering, they are advancing a disingenuous argument in an attempt to perpetuate the comprehensive self-regulation the profession had enjoyed for so long. With Bates, however, consumers were givenaccess to important information that would help them to decide which lawyerswere worth their money.
Related Cases
- Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).
- Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
- Ohralik v. Ohio Bar Association, 436 U.S. 447 (1978).
Advertising Lawyers
Lawyer advertising provides customers with information about legal services,legal rights, and a direct means of finding an attorney. The advertising mustbe truthful, not misleading or deceptive in any way. Phone directories, newspapers, newsletters, radio, television, and Internet homepages are all considered appropriate media. Advertising standards are based on the American Bar Association's (ABA) Moral Code of Professional Responsibility. States can develop their own guidelines based on these standards.
A 1990 study by the ABA's Commission on Advertising concerning lawyer's perceptions about advertising acceptability showed variations by age groups. Of those younger than 35 years of age, 85 percent said print and TV ads were acceptable under certain conditions. However, of those over 55, only 48 percent approved print and 65 percent television.
In a 1993 Gallup Poll commissioned by the ABA, 61 percent of respondents indicated their firms participated in at least one method of advertising. In 1993lawyers spent $419 million on yellow page ads compared to $120 million on television.
Sources
American Bar Association, Lawyer Advertising at the Crossroads: Professional Policy Considerations. Chicago: American Bar Association, Commission on Advertising, 1995.
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