Bates v. State Bar of Arizona

Infobox SCOTUS case
Litigants=Bates v. State Bar of Arizona
ArgueDate=January 18
ArgueYear=1977
DecideDate=June 27
DecideYear=1977
FullName=John R. Bates and Van O'Steen v. State Bar of Arizona
USVol=433
USPage=350
Citation=
Prior=Lawyer discipline imposed, 555 P.2d 640 (Ariz. 1976).
Subsequent=
Holding=The First Amendment allows lawyers to advertize in a manner that is not misleading to members of the general public.
SCOTUS=1975-1981
Majority=Blackmun
JoinMajority=Brennan, White, Marshall, Stevens
Concurrence/Dissent=Burger
JoinConcurrence/Dissent=
Concurrence/Dissent2=Powell
JoinConcurrence/Dissent2=Stewart
Dissent=Rehnquist
LawsApplied=U.S. Const. amend. I

In "Bates v. State Bar of Arizona", ussc|433|350|1977, the Supreme Court first allowed lawyers to advertise their services. By holding that lawyer advertising was a kind of commercial speech protected by the First Amendment, the Court upset the tradition among lawyers that it demeaned the profession as a whole for lawyers to advertise their services.

William C. Canby, Jr., argued for the appellants John Bates and Van O'Steen in the Supreme Court. At the time, Canby was a professor of law at Arizona State University. He currently serves as a judge on the United States Court of Appeals for the Ninth Circuit. John P. Frank argued for the appellee State Bar of Arizona. Frank was a partner in the prominent Phoenix law firm of Lewis and Roca, and argued for the defendant in the seminal case of "Miranda v. Arizona". Solicitor General Robert Bork argued on behalf of the U.S. government.

Facts

John Bates and Van O'Steen graduated from the Arizona State University College of Law in 1972. They were licensed to practice law in Arizona that same year. Two years later, they formed a legal clinic whose aim was to "provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid." They accepted simple cases—uncontested divorces, uncontested adoptions, simple bankruptcies, and changes of name—and relied heavily on paralegals and automated typewriters in order to keep their overhead low. Their business model depended on volume of cases, and in order to generate an adequate volume, they placed an advertisement in the "Arizona Republic" on February 22, 1976.

The ad read:

Do you need a lawyer?
Legal services at very reasonable fees

*Divorce or legal separation — uncontested (both spouses sign papers)$175.00 plus $20.00 court filing fee
* Preparation of all court papers and instructions on how to do your own simple uncontested divorce$100.00
* Adoption — uncontested severance proceeding$225.00 plus approximately $10.00 publication cost
* Bankruptcy — non-business, no contested proceedingsIndividual$250.00 plus $55.00 court filing feeWife and Husband$300.00 plus $110.00 court filing fee
* Change of Name$95.00 plus $20.00 court filing fee

Information regarding other types of cases furnished upon request
Legal Clinic of Bates & O'Steen

The ad was clearly labeled as an advertisement, and gave the downtown Phoenix address and phone number of the clinic.

In 1976, the State Bar of Arizona categorically forbade lawyers in that state from advertising their services. The State Bar initiated disciplinary proceedinings against Bates and O'Steen, beginning with a hearing at which the validity of the rule would not be decided, but at which the pair could introduce evidence in support of overturning the rule. The disciplinary committee that conducted the hearing recommended that Bates and O'Steen be suspended for not less than six months. The pair asked the Arizona Supreme Court to review the proceedings, and specifically contended that the absolute ban on lawyer advertising violated the Sherman Antitrust Act and the First Amendment. The court rejected both claims. The Sherman Act did not apply, the court ruled, because regulating the practice of law was an act inherent to the State of Arizona as sovereign. Although the U.S. Supreme Court had recently ruled that, under the First Amendment, pharmacists could not be forbidden from advertising the prices of prescription drugs, the court reasoned that lawyer advertising was entitled to special considerations that took such speech out of the realm of First Amendment protection. Nevertheless, the court reduced the sanction against Bates and O'Steen to censure only because it felt that the advertising was "done in good faith to test the constitutionality" of the ban on lawyer advertising. A dissenting justice on the court believed that the ban on lawyer advertising, while repugnant, impinged on the public's right to know about the activities of the legal profession, and concluded that the ban violated the First Amendment.

The U.S. Supreme Court concluded it had appellate jurisdiction over the case, and set it for oral argument.

Analysis

As Professor Thomas Morgan has put it,

The organized bar traditionally took the position that a lawyer was not permitted to actively publicize his services. In effect, it was presumed that every lawyer had an established clientele, or that a lawyer's reputation for good work would inevitably lead others to seek out the lawyer's services. Under this approach, direct publicity for lawyers was strictly controlled. [Morgan, Thomas D. (2005) Legal Ethics, p. 145. Thomson-BarBri. ISBN 0-314-15633-X.]

The Court's decision in this case cast this tradition aside.

The Sherman Act Claim

The Court agreed with the Arizona Supreme Court that the sovereign acts exception to the antitrust laws applied to Arizona's ban on lawyer advertising. This was so even though the Court had, in the two previous Terms, held that the Sherman Act did apply to other lawyer-regulation activities of state bar associations. In "Godlfarb v. Virginia State Bar", ussc|421|773|1975, the Court had held that a minimum-fee schedule enforced by the state bar was a "classic example of price fixing" that the Supreme Court of Virginia, exercising its sovereign power to regulate the practice of law, was not required to undertake. By contrast, Arizona's ban on lawyer advertising was "compelled by the direction of the state acting as a sovereign" because it was promulgated by the state supreme court. Accordingly, the Court affirmed the Arizona Supreme Court's rejection of the Sherman Act claim.

The First Amendment Claim

Speech does not escape protection under the First Amendment merely because it "proposes a mundane commercial transaction." The listener's interest in receiving information regarding potential commercial transactions is "substantial," for "the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue." Furthermore, commercial speech serves significant societal interests in that it informs the public of the availability, nature, and prices of products and services, allowing them to act rationally in a free enterprise system.

These reasons were central to the Court's rejection of a ban on advertising the prices of prescription drugs in "Virginia State Pharmacy Board v. Virginia Citizens Consumer Council", ussc|425|748|1976. The Court held that the citizen's interest in knowing the price of certain prescription drugs at various pharmacies outweighed the desire to maintain "professionalism" among pharmacists; to prevent customers from price-shopping, which necessarily would take them away from the care of one particular pharmacist who could monitor the patient for dangerous drug interactions; and to perpetuate the image of the pharmacist as a "skilled and specialized crafstman," which was crucial for recruiting new pharmacists.

By describing the holding in "Virginia Pharmacy Board" in this way, the result in "Bates" appeared a foregone conclusion. Nevertheless, the Court in the Virginia pharmacy case expressly reserved judgment on how that same balance might be struck with respect to other professions, as to which different constitutional considerations might come into play.

Nevertheless, the Court did characterize Arizona's ban on lawyer advertising as serving to "inhibit the free flow of information and keep the public in ignorance." It emphasized the advertisement Bates and O'Steen published was the most basic one possible — listing various services, the prices charged, and an address and telephone number. The central point of contention in this case was the fact that the lawyers were advertising the "prices" they charged for particular services.

Like the Virginia Pharmacy Board, the State Bar of Arizona appealed to a desire to maintain a certain air of "professionalism" among lawyers as justifying its ban on lawyer advertising. Advertising, the State Bar asserted, would "undermine the attorney's sense of dignity and self-worth," "erode the client's trust in the attorney" by exposing an economic motive for representation, and "tarnish the dignified public image of the profession." But the public understands that attorneys make their living at the bar, and few attorneys deceive themselves by thinking otherwise. "Bankers and engineers advertise, and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession." A lack of information about the price of legal services tends to dissuade people of modest means from seeking legal representation, even when it is in their best interest to engage such representation. Finally, insofar as the "belief that lawyers are somehow 'above' trade has become an anachronism, the historical foundation for the advertising restraint has crumbled."

Nor is advertising by lawyers inherently misleading. The Court speculated that the "only services that lend themselves to advertising are the routine ones," precisely the services that Bates and O'Steen were advertising. "Although the precise service demanded in each task may vary slightly, and although legal services are not fungible, these facts do not make advertising misleading so long as the attorney does the necessary work at the advertised price. The argument that legal services are so unique that fixed rates cannot meaningfully be established is refuted by the record in this case: The State Bar itself sponsors a Legal Services Program in which the participating attorneys agree to perform services like those advertised by the appellants at standardized rates." And although advertising for legal services is necessarily incomplete — responsible lawyers will, of course, disclaim that all cases are "simple" ones — a rough estimate of the cost is more useful to the public than keeping them in the dark entirely.

Justice Powell pointed out that a lawyer's primary task, even in a "routine" divorce case, is one of diagnosis and advice: to point out to the client concerns of which he might not be aware, and ensure that the client addresses those concerns. Powell thought it difficult to value this aspect of legal representation, and hence for consumers to sense how much diagnosis and advice they could expect for a fixed, advertised price. Consequently, it is impossible to know whether Bates's and O'Steen's assertion that their fees are "reasonable" is an accurate one. "Whether a fee is 'very reasonable' is a matter of opinion, and not a matter of verifiable fact as the Court suggests. One unfortunate result of today's decision is that lawyers may feel free to use a wide variety of adjectives — such as 'fair,' 'moderate,' 'low-cost,' or 'lowest in town' — to describe the bargain they offer to the public."

To the extent that lawyer advertising might be said to encourage frivolous lawsuits, the Court countered that the American Bar Association had observed that the "middle 70% of our population is not being reached or served adequately by the legal profession," suggesting that a vast number of meritorious cases are being stifled for want of a lawyer willing and able to assist the client in bringing suit. Bans on advertising, moreover, are ineffective means of reducing lawyer overhead and of maintaining the quality of legal services provided. Finally, there was no reason to believe that allowing lawyers to advertise would result in a tidal wave of disingenuous claims for the state bar to investigate and prosecute, as Justice Powell feared would happen. "For every attorney who overreaches through advertising, there will be thousands of others who will be candid and honest and straightforward."

Having disposed of the arguments against allowing lawyer advertising, the Court ruled that Arizona's total ban on lawyer advertising violated the free speech guarantee of the First Amendment, such that the discipline imposed on Bates and O'Steen had to be set aside. But that did not mean that states were powerless to regulate lawyer advertising at all. The Court reiterated that states may still ban "false, deceptive, or misleading" advertising by lawyers; regulate the manner in which lawyers may solicit business in person; require warnings and disclaimers on lawyer advertising in order to assure that the public is not misled; and impose other reasonable restrictions on the time, place, and manner of lawyer advertising.

References

ee also

* List of United States Supreme Court cases, volume 433
* [http://www.vanosteen.com/lawyers.asp O'Steen & Harrison, PLC]

External links

* [http://www.oyez.org/cases/1970-1979/1976/1976_76_316/ Multimedia files, OYEZ project]
* [http://www.law.cornell.edu/supct/html/historics/USSC_CR_0433_0350_ZS.html Text of the opinion, LII, Cornell University]
* [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=433&invol=350 Text of the opinion, findlaw.com]