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Legal Advertising and Solicitation Land & Water Law Review Volume 16 Issue 2 Article 7 1981 Legal Advertising and Solicitation Gene W. Murdock Patricia Linenberger Follow this and additional works at: https://scholarship.law.uwyo.edu/land_water Recommended Citation Murdock, Gene W. and Linenberger, Patricia (1981) "Legal Advertising and Solicitation," Land & Water Law Review: Vol. 16 : Iss. 2 , pp. 627 - 690. Available at: https://scholarship.law.uwyo.edu/land_water/vol16/iss2/7 This Article is brought to you for free and open access by Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Land & Water Law Review by an authorized editor of Law Archive of Wyoming Scholarship. Murdock and Linenberger: Legal Advertising and Solicitation University of Wyoming College of Law LAND AND WATER LAW REVIEW VOLUME XVI 1981 NUMBER 2 Advertising and solicitation are difficult and controversial issues. However, the difficulty and controversy surrounding these issues is neither justification for ignoring nor opposing the changing environ- ment. In the next five years, the number of attorneys is expected to increase drastically. With this increased competition among attorneys, may come the need to advertise to maintain or gain enough clients to survive economically. This article discusses advertising and solicitation as a service to both consumer and attorney. In addition, the article outlines the legal background of advertising and solicitation by attor- neys and the marketing of legal services. LEGAL ADVERTISING AND SOLICITATION Gene W. Murdock* Patricia Linenberger* For the past several years the issues of lawyer adver- tising and solicitation have created a continuing controversy among members of the legal profession. Balanced against a concern for tradition and professionalism is the consumer's "need to know." Although many Wyoming attorneys are not familiar with the alternatives available or the consequences of choosing a particular alternative, they are faced with the decision of whether to advertise. Part I of this article will review the legal background of advertising and solicitation by attorneys, discussing United States Supreme Court deci- sions, the response of the organized bar, and recent litigation. Copyright© 1981 by the University of Wyoming *Assistant Professor of Business Administration, University of Wyoming, B.A., 1971, University of Wyoming; Ph.D., Marketing, 1979, University of Nebraska at Lincoln. **Assistant Professor of Business Administration; B.A., 1963, University of Northern Colorado; M.A., 1969, University of Northern Colorado; J.D., Published1975, by Law University Archive ofof Wyoming Wyoming; Scholarship, Member of 1981 the Wyoming Bar Association. 1 Land & Water Law Review, Vol. 16 [1981], Iss. 2, Art. 7 628 LAND AND WATER LAW REVIEW Vol. XVI Part II of this paper deals with the marketing of legal services. The purpose of this section is threefold: first, to increase awareness of the changing competitive environment characterizing the legal service marketplace; second, to edu- cate lawyers on the effects of advertising by discussing some of the fallacies that exist; third, to suggest some implemen- tation guidelines for those lawyers who want to advertise. I. LEGAL BACKGROUND A. Bates v. State Bar of Arizona The United States Supreme Court decision in Bates v. State Bar of Arizona1 "will effect profound changes in the practice of law."2 In Bates the Court held that state regula- tions prohibiting the advertisement of routine legal services violated the first amendment.' The appellants, Bates and O'Steen, operated a legal clinic in Phoenix, Arizona. To generate business they placed a newspaper advertisement which read "Do You Need a Lawyer? Legal Services at Very Reasonable Fees." 4 The services advertised were: divorce or legal separation-un- contested, $195; preparation of all court papers and instruc- tions on how to do your own simple uncontested divorce, $100; adoption-uncontested severance proceeding, $235; bankruptcy-nonbusiness, no contested proceedings, $305 individual, $410 couple; and change of name, $115. Bates and O'Steen conceded that the advertisement violated Rule 29(a) of the Arizona Supreme Court.' After being suspended from the practice of law by the Arizona 1. Bates v. State Bar of Ariz., 433 U.S. 350 (1977). 2. Id. at 389 (Powell, J., dissenting). 3. Id. at 384. The decision was five to four with Justice Blackmun writing for the majority consisting of himself and Justices Brennan, White, Marshall, and Stevens. Justice Powell was joined in a dissenting opinion by Justice Stewart; Chief Justice Burger and Justice Rehnquist dissented in separate opinions. 4. Id. at 385. 5. Disciplinary Rule 2-101(b) of the CODE OF PROFESSIONAL RESPONSIBILITY had been adopted by the Arizona Supreme Court as Rule 29(a): A lawyer shall not publicize himself, or his partner, or associate or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television advertisements, display advertisements in the city or telephone directories or other means of com- mercial publicity, nor shall he authorize or permit others to do so in his behalf. https://scholarship.law.uwyo.edu/land_water/vol16/iss2/7 2 Murdock and Linenberger: Legal Advertising and Solicitation 1981 LEGAL ADVERTISING 629 State Bar the two lawyers appealed to the state supreme court. They contended that the advertising ban violated Sections 1 and 2 of the Sherman Act and infringed their first amendment right to freedom of speech. The court re- jected both claims but reduced the penalty for violation to a censure for both.6 On appeal to the United States Supreme Court Bates and O'Steen renewed their antitrust and first amendment arguments. The court granted review of the two questions: 1. Does a total ban upon advertising by private attorneys, enforced by an integrated bar and state supreme court, violate the Sherman Act notwithstanding the state action exemption? 2. Does such a ban violate the first amendment? The Court unanimiously rejected the antitrust argument,7 but reversed on the ground that the first amendment was infringed by the ban on lawyer advertising.8 The first issue, whether Sections 1 and 2 of the Sher- man Act forbid state regulation by the Arizona Bar in restricting advertising by attorneys, was answered in the negative based on a previous Supreme Court opinion in Parker v. Brown,9 which set forth a state-action exemption to the Sherman Act. In Parker the Court held that the Sherman Act does not prohibit restraints imposed by a state when the restraints are an act of government." The Arizona lawyers in Bates unsuccessfully argued that since the disciplinary rule involved was derived from the Code of Professional Responsibility of the ABA, no state immun- ity should exist." The Court, however, concluded that the Arizona court, not the bar association, is the ultimate body through which the state exercises its power over the prac- tice of law.' 2 6. In re Bates, 113 Ariz. 394, 555 P.2d 640 (1976). 7. Bates v. State Bar of Ariz., supra note 1, at 363. 8. Id. at 382. 9. Parker v. Brown, 317 U.S. 341 (1943). 10. Id. at 352. 11. Bates v. State Bar of Ariz., supra note 1, at 362-63. 12. Id. at 362. For a more thorough discussion of the antitrust issue see Levin, The State Action Exemption after Bates v. State Bar of Arizona, 40 U.P.N. Published215 by (WinterLaw Archive 1977-1978). of Wyoming Scholarship, 1981 3 Land & Water Law Review, Vol. 16 [1981], Iss. 2, Art. 7 630 LAND AND WATER LAW REVIEW Vol. XVI The Court made a more extensive review of the first amendment issue. The majority based its decision on the precedent established in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council."s In Virginia Phar- macy the Court held that commercial speech contains infor- mation valuable to consumers and is therefore entitled to first amendment protection." To determine the degree of protection to be accorded to purely commercial advertising, the Court employed a balancing test. It concluded that the state's interest in maintaining the professionalism of licensed pharmacists was outweighed by the public's right to the free flow of commercial information. 5 In light of the decision in Virginia Pharmacy it was forseeable that the Bates Court would extend first amendment protection to attorney advertising. In fact, the analysis of the first amendment issue in Bates was made with the assumption that Virginia Pharmacy would control unless the Arizona State Bar could show significant differences between the advertising of legal services and pharmaceutical services.' " The Court summarized six justifications that the state had raised in support of the advertising ban. Each issue was disposed of separately in the Court's analysis. 1. The bar association argued that advertising would have an adverse effect on professionalism. It would cause commercialism, erode the client's trust in his attorney, and affect the attorney's reputation in the community.' Find- ing the argument to be without substance, the Court em- phasized that the relationship of attorney and client is a commercial one.'" It was noted that it would be inconsistent, 13. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976). 14. Id. at 762. 15. Id. at 770. 16. After a comprehensive discussion of Virginia Pharmacy, the court said: "We have set out this detailed summary of the Pharmacy opinion because the conclusion that Arizona's disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it. Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance. Because of the possibility, however, that the differences among professions might bring different con- stitutional considerations into play, we specifically reserved judgment as to other professions." Bates v.
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