Need for Uniformity: Fifty Separate Voices Lead to Disunion in Attorney Internet Advertising, The

Georgetown Journal of Legal Ethics, The, Summer 2005 by Monroe, Nia Marie

INTRODUCTION

"Tune in the radio. Turn on the television. Check out the billboards on the highway. Stop at a light behind a bus. Crack open the phone book. At almost every turn, there is an advertisement for a lawyer or law firm, many with catchy toll-free numbers like 877-U-HURT-ME."1 Although many of these advertisements are placed in traditional media, such as newspapers, radio, and television, the Internet is a new medium of choice, presently evolving into one of the fastest growing methods of advertising.2

Today, a large number of law firms utilize the Internet as a principal medium to place firm advertisements. One benefit of utilizing the Internet is that "[w]ebsites ... make lawyer marketing easy [and] cheap."3 Most law firms and solo practitioners presently maintain websites that link the public to a list of its attorneys, recent news on the firm, a list of the overall services that the firm provides, and contact information for the firm and its attorneys.

It is important for attorneys to understand the ethical codes implicated by their actions, and thus, this Note argues for uniformity and simplicity in the laws that govern attorney website advertising. Through basic laws applied uniformly, the laws of fifty separate states can unite as one, helping to alleviate major issues such as the conflict in laws regarding which state law governs in the circumstance of an Internet advertisement created in one state and viewed in another. Part I of this Note begins with background information regarding attorney advertising from the 1970s to the present. Part II illustrates the trend of state regulation of attorney advertising, possibly leading to fifty variations in advertising laws. Part III of this Note describes the current American Bar Association ("ABA") regulations and state codes. Part IV highlights some differences that exist among states' governance of advertisements on the Internet. Part V addresses potential ethical issues with the global reach of Internet advertising. Finally, Part VI advocates for uniformity in this area of law.

I. BACKGROUND OF ATTORNEY ADVERTISING

"Attorney advertising has traditionally been regulated by state bar associations."4 This changed with the Supreme Court's ruling in Bates v. State Bar of Arizona.5 In that case, two attorneys of the Arizona State Bar violated a rule prohibiting advertising by lawyers, the Supreme Court of Arizona imposed disciplinary sanctions, and the attorneys appealed.6 The State Bar of Arizona argued that it could forbid all legal advertising including the ad at issue in Bates because "[l]egal ads (1) would have an 'adverse effect on professionalism' and encourage 'commercialization,' (2) were inherently misleading, (3) would stir up litigation, (4) would increase the cost of legal services, (5) would encourage shoddy work, and (6) were difficult to monitor against abuse."7 In its ruling, the Supreme Court determined that the appellants' truthful advertisement could not be restrained, stating that the advertisement at issue in Bates deserved First Amendment protection.8 However, the Court clearly affirmed that advertising that is false, deceptive, or misleading is still subject to restraint.9 In addition, the Court stated that a state bar "might [also] be able to require a warning or disclaimer in legal ads" and "could possibly restrict quality claims" regarding the level of service that the attorney could provide "because they were hard to verify or measure."10

The Bates decision does not implicate advertising in the form of in-person solicitation. In-person solicitation was discussed in two cases that were decided a year later. One of the cases, Ohralik v. Ohio State BarAss'n,11 "is the only lawyer advertising case in the Supreme Court to uphold a permanent and categorical ban on a [specific] type of communication-in-person solicitation."12 Ohralik stated that "in-person solicitation of professional employment by a lawyer does not stand on par with truthful advertising about the availability and terms of routine legal services, let alone with forms of speech more traditionally within the concern of the First Amendment."13

Later, in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York,14 the Court established a four-part test that is applied to all commercial speech, including attorney advertising, to determine whether the speech at issue should be afforded First Amendment protection.15 To qualify for First Amendment protection, the speech must concern a lawful activity and not be misleading.16 second, the asserted governmental interest in restricting the speech must be substantial.17 Third, if both inquiries yield positive answers, such that the speech gets First Amendment protection and the government's interest is substantial, it must be determined whether the regulation directly advances the governmental interest asserted.18 Fourth, the Court must assess whether the restriction on the speech is not more extensive than is necessary to serve that interest.19 This four-part test has been used consistently in later cases by the Court to determine whether the commercial speech in question is protected.