"spamming" The Net, Should Legal Advertising Be Restricted?, Further Readings
Any advertising an attorney purchases or places in publications, outdoor installations, radio, television, or any other written or recorded media.
The pros and cons of legal advertising continue to be widely discussed as the amount and variety of advertising continues to increase each year. On the positive side, legal advertising makes the public aware of current legal issues and lets people know that there are lawyers willing to assist them. Legal advertising also serves the practical purpose of informing people about the times when it may be necessary to consult a lawyer. On the negative side, legal advertising can be manipulated into something that is more slick than informative. Guidelines and legislation have targeted that type of advertising.
The roots of legal advertising can be traced to England's legal system. However, today's standards are based on Canon 27 of the American Bar Association's (ABA's) Canons of Professional Ethics. Originally written in 1908, these guidelines were established to act as model rules for both state and local bar associations. Canon 27, which addressed legal advertising, said, "[S]olicitation of business by circulars or advertisements, or by personal communications, or interviews, not warranted by personal relations are unprofessional." In 1937, this rule was modified to allow attorneys to publish listings in legal directories and other publications that were solely for those in the legal community. The next year the ABA ruled that distinctive listings could also be placed in the white pages of public telephone directories. However, this ruling was overturned in 1951.
In 1969, the ABA reclassified the canons and created the Model Code of Professional Responsibility. In 1983, in an effort to further codify standards of legal conduct, the ABA replaced the code with the Model Rules of Professional Conduct; Section 7 of the Model Rules deals specifically with lawyer advertising and solicitation. According to Section 7, advertisements must be truthful and not deceptive or misleading. The ABA has defined misleading advertisements as those that create unrealistic expectations of the lawyer's ability; compare the lawyer's service to the services of other lawyers, unless the facts can be substantiated; or contain any known MISREPRESENTATION. Acceptable content includes the lawyer contact information, including address and phone number, type of services offered, bases of fees, available credit arrangements, foreign language ability, references, and client names (with their prior consent). Acceptable media include newspapers, television, radio, phone and legal directories, outdoor installations, and other written or recorded media. Lawyers are required to keep records listing the use and content of each advertisement, as a tool of enforcement.
The ABA periodically amends the model rules to make adjustments for evolving norms and changes in technology. For example, in 1998, the ABA addressed the widespread use of the INTERNET by lawyers to advertise their businesses. According to the ABA Commission on Advertising, "The use of the Internet by legal service providers creates a wide range of ethical issues."
A set of specific guidelines set forth by the ABA limits the ability of lawyers to state or imply that they have special knowledge in a particular field of law, such as patent law or ADMIRALTY LAW. Because potential clients do not typically have a way to verify that a lawyer is a qualified specialist, this guideline protects them from deception. However, in In re R. M. J., 455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982), the Supreme Court ruled that lawyers have the right to advertise their area of practice if they use "unsanctioned, non-misleading language." Simply stating that they practice a specific type of law—for example, DIVORCE law—is acceptable; stating that they are specialists in that type of law is not.
Although these guidelines have been helpful in establishing higher standards in legal advertising, several problems have arisen. The major problem is that the guidelines are the ABA's creation, and therefore the legal profession is responsible for enforcing them. As with any type of self-regulation, this has led some critics to claim that enforcement standards are sometimes lax, and that inadequate punishment only encourages other lawyers to engage in inappropriate or unethical behavior.
The second main problem is that because state associations can create their own legislation based on the ABA's guidelines, what is acceptable legal advertising in one state may be unacceptable in a neighboring state. This can lead to confusion and violation of ethics codes, as well as image problems for the legal profession.
Several landmark cases have set the standards for today's legal advertisements. In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), the Supreme Court ruled that legal advertising in newspapers is protected by the FIRST AMENDMENT, and that state professional or disciplinary codes cannot prohibit it. However, reasonable restrictions can be placed on deceptive, false, or misleading advertisements.
The Supreme Court addressed the issue of in-person legal solicitation in Ohralik v. Ohio Bar Ass'n, 436 U.S. 447, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978). An Ohio Bar Association regulation stated, "A lawyer shall not recommend employment, as a private practitioner, of himself, his partner or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer" (Ohio Code of Professional Responsibility, DR 2-103(A) ). The Supreme Court ruled that in-person solicitation has very limited First Amendment protection, and therefore left its regulation up to the individual states.
The issue of direct-mail solicitation was the focus of Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988). The Kentucky Bar Association had a statute that prohibited attorneys from using direct-mail solicitation to attract clients. The Supreme Court held that the law violated the First Amendment. The ensuing direct-mail standard was that truthful and nondeceptive ads could be targeted at people with known legal problems.
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