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

Monday, April 18, 2016

Modern Attorney Advertising Since Bates v. State Bar of Arizona (or) How Far Have Things Come in the Virtually Monastic (Medieval Origin) Legal Profession?

Victor Li at the ABA Journal reports from the seventh annual Avvo Lawyernomics conference that Lawyers should be big, brave and bold in their advertising efforts, at least as based on two keynote speeches by Scott Stratten, president at Un-Marketing, and Ann Handley, chief content officer of MarketingProfs. It was Handley who specifically "encouraged lawyers to be 'bigger, braver and bolder' when creating content for marketing purposes".

Big, Brave & Bold? It could be a law firm name. Surely the speakers Stratten and Handley are right in urging more courage, but how far has lawyer advertising actually moved since the 1977 U.S. Supreme Court Decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and why not further.

Bates v. State Bar of Arizona was our favorite case to teach law students legal analysis in the days when we were FFA Lecturer in Anglo-American Law, Legal Research and Legal Writing at the University of Trier Law School.

Legal issues relating to attorney advertising illuminate the legal profession better than perhaps any other parameter, and it is perhaps significant that very little substantive progress has been made on this score in 40 years.
 
State bar associations in the USA rely upon the ABA (American Bar Association) Model Rules of Professional Conduct for basic guidelines, but each State bar brews its own cauldron of regulations in exercising local monopoly powers over its members. Attorneys are kept on a tight rein. Why is that so?

The profession of law retains many similarities to a monastic order. See James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts, University of Chicago Press, 2008 [reviewed at forum historiae iuris by Mark R. Munzinger]; Amelia J. Uelmen, A View of the Legal Profession From a Mid-twelfth-century Monastery, 71 Fordham L. Rev. 1517 (2003). Available at: http://ir.lawnet.fordham.edu/flr/vol71/iss4/11; James A. Brundage, The Ethics of the Legal Profession: Medieval Canonists and Their Clients, 33 Jurist 237, 237 (1973).

Munzinger in his above cited review summarizes Brundage's main thesis:
"Brundage defines professionalization, in its strictest sense, as much more than the acquisition of the skills necessary to making a living in a given occupation. Rather, a true professional has studied and mastered a body of esoteric knowledge, an accomplishment that confers a degree of prestige; the occupational application of that knowledge is not only useful, but purports to promote the interests of the whole community; the professional has pledged to uphold an ethical standard different and more demanding than ordinary community norms require. These criteria lie at the base of Brundage’s thesis and provide the framework for his account of the development of the medieval legal profession.
...
Although Professor Brundage modestly deems his book a provisional account to be modified by further research, Medieval Origins is nothing less than the magnum opus of a master scholar. As such, it lays the foundation and sets the standard for future work on the subject. Medieval Origins of the Legal Profession not only delivers on its title, but is much more besides. Every medievalist, legal historian, and lawyer interested in the history of his or her profession should have a copy on their shelves."
At the ABA website page on Professionalism & Ethics in Lawyer Advertising we find under Latest Developments an update from January 1, 2016 in the form of a .pdf about Differences between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct, plus links to Court Rulings, Reports and still other Links.

The .pdf cited above writes in addition: "For links to all state ethics rules (including advertising rules), go to" ... Links of Interest at
http://www.americanbar.org/groups/professional_responsibility/resources/links_of_interest.html, an online page which then takes us to more Links to Other Legal Ethics and Professional Responsibility Pages.

Those links include
  • Nationwide links 
  • Links relating to Individual States of the United States each state, plus
  • Foreign Rules of Professional Conduct (Australia, Canada, United Kingdom, and Other Countries) 
  • Links to Law Schools involved with Law and Ethics
  • Additional American Bar Association Ethics and Professional Responsibility Resources 
  • National Organizations dealing with legal ethics and professional responsibility
  • Journals dealing with the Legal Profession and Ethics, and
  • Other Links
Whoever reads the U.S. Supreme Court decision in Bates v. Arizona and then compares the holding in that case with various current State bar rules and regulations will quickly see that the bar associations utilize their monopoly powers just as effectively now as nearly 40 years ago in keeping their membership under a strong virtually monastic regime of discipline, also as regards attorney advertising.
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A bit off topic, but we might add here for those interested in the historically, militarily and politically critical corridor between the Baltic Sea and Black Sea, which remains a hot spot in our modern political world today, that Munzinger, cited above, also has written some interesting material about that:

Mark R. Munzinger, The Profits of the Cross: Merchant Involvement in the Baltic Crusade (c. 1180-1230), Journal of Medieval History 32 (2006), 163-85., cited in Alan V. Murray, editor, The Clash of Cultures on the Medieval Baltic Frontier, Routledge & Taylor Francis Ltd, United Kingdom (2009), Ashgate Publishing Ltd., Farnham, Surrey UK and Burlington, VT, USA.