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FLORIDA BAR V. WENT for IT, INC.: SUPREME COURT SUCCUMBS to STATE REGULATION of LAWYER ADVERTISING

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FLORIDA BAR V. WENT for IT, INC.: SUPREME COURT SUCCUMBS to STATE REGULATION of LAWYER ADVERTISING "LET ME REPRESENT YOU!" FLORIDA BAR v. WENT FOR IT, INC.: SUPREME COURT SUCCUMBS TO STATE REGULATION OF LAWYER ADVERTISING Kim Y. Oldham Advertising activity among members of the legal to reach out to individuals through various methods profession has grown more popular as a marketing of advertising.' The issue arises, however, of tool over the past twenty years.' Lawyers no longer whether permitting states to regulate lawyer adver- simply place advertisements in newspapers and the tising constitutes an unwarranted suppression of Yellow Pages.' Now, they rent billboards, send out commercial speech.' mass mailings, and broadcast radio and television Prior to the mid-1970's, the First Amendment of commercials.' In particular, the use of targeted, di- the United States Constitution did not include com- rect-mailings' to individuals known to have an im- mercial speech under its umbrella of protection." It minent legal need substantially increased during the was not until 1976 that the United States Supreme 1980's and continues to be a common medium for Court recognized the informational function of com- lawyer advertising.' mercial speech and granted it constitutional protec- Today, lawyers are becoming more innovative and tion.1" Subsequently in 1977, the Court decided the more aggressive in their attempts to solicit clients. 6 landmark case Bates v. State Bar of Arizona,"' in Consequently, states are becoming more concerned which the Court held that advertising by lawyers with the extent to which lawyers should be allowed should be included in the category of commercial 1 A.B.A. COMM'N ON ADVERTISING, LAWYER ADVERTISING new entrants into the legal profession and for small firms with AT THE CROSSROADS 47 (1995) [hereinafter LAWYER ADVER- low capital. See generally Al H. Ringleb et al., Lawyer Direct TISING]. A 1993 Gallup Poll commissioned by the A.B.A. Jour- Mail Advertisements: Regulatory Environment, Economics, and nal revealed that 61% of surveyed A.B.A. members said their Consumer Perception, 17 PAc. L. J. 1199 (1986). firms participated in some form of advertising. Id. at 52. e See, e.g., In re Anis, 599 A.2d 1265 (N.J. 1992)(lawyer ' When lawyers first began to explore advertising in the late sent a solicitation letter to the father of a student killed in a 1970's, newspapers and Yellow Page directories were the most plane crash just one day after his remains were identified); Nor- common media. Id. ris v. Alabama State Bar, 582 So.2d 1034 (Ala. 1991)(firm sent 3 Id. Other marketing devices include Christmas cards and flower wreath to funeral home along with note offering legal promotional items bearing the firm's name and the sponsoring of services to family of 19-month-old decedent). public events. HARRY J. HAYNSWORTH, MARKETING AND LE- See infra notes 17 and 19 and accompanying text. GAL ETHICS: THE RULES AND RISKS 31-40 (1990). 8 Commercial speech is defined as speech that is related ' An advertisement uses some form of mass media to convey solely to the economic interests of the speaker and its audience. a message to the public about a particular firm. LAWYER AD- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, VERTISING, supra note 1, at 44. In contrast, a solicitation con- 447 U.S. 557, 561 (1980). sists of direct contact via telephone, in-person, or through the ' Valentine v. Chrestensen, 316 U.S. 52 (1942)(holding that mail. Id. Throughout this Comment, the term advertising will be Constitution does not restrain government from banning the dis- used to refer to all modes of communication, including tribution of handbills bearing purely commercial advertising). solicitations. 10 Virginia Pharmacy Bd. v. Virginia Citizens Consumer " Id. The 1993 Poll reported that seven percent of surveyed Council, 425 U.S. 748 (1976)(holding that commercial speech lawyers use direct-mailings. Id. at 52; Larry Bodine, Advertising serves not only the interests of the speaker, but also assists con- Acumen, NAT'L L.J., Aug. 13, 1990, at 9. This increase in the sumers and furthers the societal interest of full dissemination of use of targeted direct-mailings is due largely in part to the cost- information). effectiveness of sending material through the mail, especially for 11 433 U.S. 350 (1977). COMMLAW CONSPECTUS [Vol. 4 speech. 12 The ruling in Bates, however, was narrow Florida Bar's thirty-day waiting period to control the and the degree to which states may regulate advertis- use of targeted direct-mailings. This Comment con- ing by lawyers has been a recurring issue before the cludes that the Supreme Court's recent holding rep- Court.' Essentially, the cases stemming from Bates resents an open door that will stimulate states to have circumscribed state regulation of lawyer adver- limit the means by which lawyers may advertise. tising so as to prevent in-person solicitation' 4 and false or misleading communications.' However, Florida Bar v. Went For It, Inc.,'" the Supreme I. PRIOR LAW: BATES AND ITS PROGENY Court's most recent decision in the area of lawyer advertising, may provide a basis to permit state bars A. Advertising General Routine Services 7 to impose further restrictions.' The issue of whether the First Amendment pro- In Florida Bar, the Supreme Court upheld a pro- tects the contents of lawyer advertising was not ad- posed rule prohibiting lawyers from sending direct- dressed by the Supreme Court until 1977 in Bates v. mailings to injured victims and their families within State Bar of Arizona.2 The Court held that adver- thirty days following an accident or disaster.' Al- tising by lawyers fell within the category of commer- though the decision presently applies only to Florida, cial speech and, therefore, may not be subject to many state bar associations have already initiated ef- 2 9 blanket suppression. forts to enforce similar restrictions. In Bates, two lawyers established a legal clinic to This Comment evaluates the Supreme Court's de- provide routine services at modest fees to persons of cision in Florida Bar and its ramifications on states' modest income.2" To attract more clients, the lawyers role in regulating lawyer advertising. Part I traces advertised their services and fees in a daily newspa- the history of the Court's past rulings regarding state per." The state bar filed a complaint on the ground restrictions on lawyer advertising. Part II discusses that the advertisement violated an Arizona discipli- in detail the Court's rationale in upholding the nary rule, which prohibited a lawyer from advertis- thirty-day ban in Florida Bar. Part III analyzes the ing his services through various means of commercial decision as a departure from the Supreme Court's publicity, including newspapers.24 Despite the law- established precedent and explores its implications. yers' claim that the disciplinary rule infringed upon Part IV considers a less restrictive alternative to the their First Amendment rights, a special committee's 12 Id. at 364. California, and New Mexico. Id. Some states such as Alabama, 12 Since Bates, the Supreme Court faced the issue of state Colorado, New York, Michigan, and Illinois have created task regulating lawyer advertising six times. Marcia Coyle, Ad Deci- forces to review rules regarding the regulation of lawyer adver- sion Could Spur a Rollback, NAT'L L.J., July 3, 1995, at A26. tising. A.B.A. Comm'n on Advertising, The Florida Bar Case See Peel v. Attorney Registration & Disciplinary Comm'n, 496 Stimulates State Action, LAWYER ADVERTISING NEWS, Aug. U.S. 91 (1990); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 1995, at 1. The Rules of Professional Conduct Review Commit- (1988); Zauderer v. Office of Disciplinary Council, 471 U.S. tee for the District of Columbia Bar is considering a post-acci- 626 (1985); In re R.M.J., 455 U.S. 191 (1982); In re Primus, dent proposal similar to Florida's. Inadmissible, LEGAL TIMES, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Ass'n, 436 U.S. June 26, 1995, at 3. 447 (1977). 20 433 U.S. 350 (1977). 14 See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 21 Id. at 383. (1978). See discussion infra part I.B. 22 Id. at 354. "Routine services" are those such as uncon- "8 Bates, 433 U.S. 350; Zauderer, 471 U.S. 626. See discus- tested divorces and adoptions, simple bankruptcies, and changes sion infra parts L.A and I.C. of one's name. Id. 1e 115 S. Ct. 2371 (1995). 23 Id. At the top of the ad in large bold print was the follow- " Coyle, supra note 13, at A26. Twenty-eight state and lo- cal bar associations joined in an amicus curiae brief asking the ing: "DO YOU NEED A LAWYER? LEGAL SERVICES Supreme Court to give them more power to regulate lawyer ad- AT VERY REASONABLE FEES." Id. at 385. vertising. A.B.A. COMM'N ON ADVERTISING, LAWYER ADVER- 24 Id. at 356. The rule provided: TISING NEWS, June 21, 1995, at 1 (Special Supplement). A lawyer shall not publicize himself, or his partner, or 11 115 S. Ct. at 2381. The purpose of the waiting period, as associate, or any other lawyer affiliated with him or his explained by Justice O'Connor in the majority opinion, is to firm, as a lawyer through newspaper or magazine adver- "forestall the outrage and irritation with the state-licensed legal tisements, radio or television announcements, display ad- profession that the practice of direct solicitation only days after vertisements in the city or telephone directories or other accidents has engendered." Id. at 2379. means of commercial publicity, nor shall he authorize or 19 Paul M.
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