Attorneys’ Right To Advertise
When the U.S. Supreme Court recognized attorneys’ constitutional right to advertise in Bates v. State Bar of Arizona, the court noted that legal advertising would make legal services more accessible to the general public and improve the overall administration of justice.
Bates ruled legal advertising is commercial speech, which serves individual and societal interests in assuring informed and reliable decision-making, entitled to protection under the First Amendment.
Advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange.
As observed in Bates, advertising does not provide a complete foundation on which to select an attorney.
“But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision,” wrote Justice Harry Blackmun in the opinion.
Although the consumer may not know the detail involved in the attorney performing the specific legal tasks, he no doubt is able to identify the service he desires at the level of generality to which advertising lends itself, according to Bates.
Prohibiting or severely restricting advertising serves only to restrict the flow of information to consumers. Advertising is educational, reaching people who otherwise would be ignorant on their legal rights and options.
Legal advertising does not undermine professionalism and is not inherently misleading.
Studies show 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, according to the American Bar Association.
“Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action,” reads the Bates opinion.
Thus, it is imperative legal advertising exists to inform the public about available legal services and how to obtain them to protect their rights.
Bates opined legal advertising does not undermine professionalism and the belief that lawyers are above “trade” is an anachronism.
It is a daft premise that advertising legal services is inherently misleading. While reasonable restrictions can be placed on deceptive, false, or misleading advertisements, policy makers should not unnecessarily restrict the dissemination of truthful and non-misleading advertising that help consumers make informed decisions.
Overly broad restrictions of truthful and non-deceptive information are likely to harm consumers of legal services by denying them useful information and impeding competition among attorneys, according to the Federal Trade Commission, whose purpose is to enforce laws prohibiting unfair methods of competition and unfair or deceptive acts or practices affecting commerce.
Legal advertising not only benefits consumers and improves the overall administration of justice, it is a right protected by the U.S. Constitution.