Ethics of Attorney Advertising: The Effects of Different State Regulatory Regimes, The

Georgetown Journal of Legal Ethics, The, Summer 2005 by Olson, Emily

INTRODUCTION

Today's increasingly urbanized environment forces law firms and other providers of legal services to adapt to new ways of doing business. As information technology continues to speed up the ability of consumers to attain information about desired goods and services, increasing competition places additional strains on legal service providers. In this "increasingly competitive and global marketplace," law firms realize that they must "understand their market and have a strategy for protecting and enhancing their market share."1 The new marketplace conditions now require law firms, more than ever before, to react to market pressures like other traditional businesses. "Competition for both clients and lawyers thus has led firms to rationalize their operations more explicitly along business lines."2 Logically, this shift in operations style results in a greater dependence on traditional business tools such as advertising and marketing mediums.

Legal service providers now operate in an environment "that is shaped by the dynamics of a competitive market for legal services."3 In contrast to the "golden age" of the law firm, which occurred in the mid-20th century, "clients [today] no longer give all or most of their business" to a single law firm.4 In-house counsel now handle routine legal work that large firms traditionally handled. Large firms are focused on large-scale litigation or transactional work, which has forced the legal profession to become highly specialized.5 In order to compete in the new environment, "firms vigorously market their services and seek to differentiate themselves from competitors through seminars, brochures, and explicit advertising."6

Because legal advertising now plays a more economically vital role to the legal service provider, restrictions on such advertising are now just as important. All states seek to regulate advertising in order to maintain the ideals of the profession while allowing attorneys to effectively notify prospective clients of their services and permit clients to seek effective and well-priced legal services. Despite differences in approach to regulating attorney advertising, these regulations have not resulted in drastically different environments for attorney advertising. The actual forces affecting attorney choices about advertising and marketing are actually historic ethical and professional notions about the legal profession in relation to advertising as well as current trends towards increased marketing in most professional fields.

I. BRIEF HISTORY OF ATTORNEY ADVERTISING

In 1908, the American Bar Association ("ABA") established and promulgated its first ethics code, known as the Canons of Professional Ethics, which condemned all advertisement and solicitation by lawyers.7 Academics at the turn of the century generally viewed advertising as not appropriate for the legal profession. They believed that only tricksters used legal advertising in order to improve their reputation and an honest lawyer worked to earn his good name. "In the case of the lawyer, advertising of one's own willingness to be trusted as a man of unselfish devotion frosts the rose before it has a chance to bloom."8

Due to changes in the nature of the legal profession and the desire to regulate areas not previously included in the Canons of Professional Ethics, the ABA established the Model Code of Professional Responsibility ("Model Code") in 1969.9 The Model Code was an effort by the ABA to create practical rules that went "beyond the pretty details of form and manners" and addressed "the chained relationship of the lawyer to his clients, to his professional brethren and to the public."10

In 1977, the United States Supreme Court, in Bates v. State Bar of Arizona, ruled that advertising by lawyers is partially protected by the First Amendment.11 The Supreme Court rejected the argument by the Arizona Bar that advertising adversely affected professionalism and that attorney advertising was "inherently misleading."12 The Court found "the postulated connection between advertising and the erosion of true professionalism to be severely strained," and noted that "lack of legal advertising could be viewed as the profession's failure to 'reach out and serve the community.'"13 The Supreme Court ruled that certain regulations are permissible, such as reasonable time, place, and manner restrictions and bans on false or misleading advertising.14 States may "adopt ethical guidelines that place some restrictions on lawyer advertising" and "enforce the guidelines with appropriate sanctions."15

Following the Bates decision, competition and market forces quickly led many large firms to adopt various marketing techniques.16 In response to the decision in Bates, the ABA established the Commission on Evaluation of Professional Standards in 1977 to undertake the task of rethinking the "ethical premises and problems of the legal profession."17 After deciding that the changes were of such a great degree that a revision of the previous Model Code was unreasonable, a six-year study and drafting process was commenced that produced the Model Rules of Professional Conduct ("Model Rules").ls The ABA designed the Model Rules to better handle the advertising needs of the evolving legal profession and provide a framework to govern as models for state regulatory law.19