"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Wednesday, October 28, 2015

The Changing Nature of Law Practice: Commercial Free Speech ala Citizens United and Law Advertising by the Legal Profession ala Bates

We are often decades ahead of the trend, and this -- again -- is one such case.

During our law teaching tenure at the University of Trier Law School, our favorite case for inclusion in law school final examinations was Bates v. State Bar of Arizona, 433 U.S. 350 (1977), a decision in which the United States Supreme Court upheld the Constitutional right of attorneys to advertise their professional legal services.

We taught that Bates was a more important case than people thought. Indeed, Bates was a forerunner of the "commercial free speech" championed by the U.S. Supreme Court in Citizens United v. Federal Election Commission. For a modern take, see Apt46.net.

As can be read at the American Bar Association in Lawyer Advertising and Solicitation Chapter from Lawyer Advertising at the Crossroads, monopolistically-oriented local State bar associations in past years have had serious difficulties in abiding by the law as set out in Bates.

The controversy centering on "legal advertising" by attorneys is handled by Jacob Gershman at the Wall Street Journal Law Blog in
Need a Lawyer? Legal Ads Are Proliferating, Says New Report

where he refers to an article by Robert Trigaux in the Tampa Bay Times in
Tampa Bay leads the nation in number of lawyer ads on TV

and also to an "On the Case" blog posting by Alison Frankel of Reuters at
In defense of trial lawyers advertising for clients.

This entire matter has a much larger component which points to the changing nature of law practice in general, as discussed by Renee Newman Knake in her Democratizing the Delivery of Legal Services, where she writes in conclusion:
"This Article is the first to identify a jurisprudential thread of cases supporting the corporation’s First Amendment right to deliver legal services through an arrangement involving ownership of or investment in a law practice, notwithstanding bar regulators' historic distaste for such relationships. Proponents of corporate law practice ownership and investment maintain that this will bring affordable representation to the general population and address the well-documented, unmet need for lawyers. Opponents counter that corporate involvement will exacerbate the already poor reputation of lawyers, undermine lawyer independence, and subject lawyers to insurmountable conflicts of interests driven by a profit motive instead of service to the client. Neither side, however, seems to fully appreciate the First Amendment interests at stake in the delivery of legal services."
Given the recent precedent of Citizens United in firmly establishing "commercial free speech" as a constitutional right, many of the special rules and regulations of local State bars that suppress attorney free speech are clearly unconstitutional, regardless of the motives that lie behind them.

Advertising by the legal profession is thus likely to increase in coming years.

Most Popular Posts of All Time

Sky Earth Native America

Sky Earth Native America 1 :
American Indian Rock Art Petroglyphs Pictographs
Cave Paintings Earthworks & Mounds as Land Survey & Astronomy
Volume 1, Edition 2, 266 pages, by Andis Kaulins.

  • Sky Earth Native America 2 :
    American Indian Rock Art Petroglyphs Pictographs
    Cave Paintings Earthworks & Mounds as Land Survey & Astronomy
    Volume 2, Edition 2, 262 pages, by Andis Kaulins.

  • Both volumes have the same cover except for the labels "Volume 1" viz. "Volume 2".
    The image on the cover was created using public domain space photos of Earth from NASA.


    Both book volumes contain the following basic book description:
    "Alice Cunningham Fletcher observed in her 1902 publication in the American Anthropologist
    that there is ample evidence that some ancient cultures in Native America, e.g. the Pawnee in Nebraska,
    geographically located their villages according to patterns seen in stars of the heavens.
    See Alice C. Fletcher, Star Cult Among the Pawnee--A Preliminary Report,
    American Anthropologist, 4, 730-736, 1902.
    Ralph N. Buckstaff wrote:
    "These Indians recognized the constellations as we do, also the important stars,
    drawing them according to their magnitude.
    The groups were placed with a great deal of thought and care and show long study.
    ... They were keen observers....
    The Pawnee Indians must have had a knowledge of astronomy comparable to that of the early white men."
    See Ralph N. Buckstaff, Stars and Constellations of a Pawnee Sky Map,
    American Anthropologist, Vol. 29, Nr. 2, April-June 1927, pp. 279-285, 1927.
    In our book, we take these observations one level further
    and show that megalithic sites and petroglyphic rock carving and pictographic rock art in Native America,
    together with mounds and earthworks, were made to represent territorial geographic landmarks
    placed according to the stars of the sky using the ready map of the starry sky
    in the hermetic tradition, "as above, so below".
    That mirror image of the heavens on terrestrial land is the "Sky Earth" of Native America,
    whose "rock stars" are the real stars of the heavens, "immortalized" by rock art petroglyphs, pictographs,
    cave paintings, earthworks and mounds of various kinds (stone, earth, shells) on our Earth.
    These landmarks were placed systematically
    in North America, Central America (Meso-America) and South America
    and can to a large degree be reconstructed as the Sky Earth of Native America."

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