"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.