"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.

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.

"Above the Law" Blog Bans Comments: LawPundit Drew the Same Conclusion Years Ago

Debra Cassens Weiss at the ABA Journal reports that
Plagued by 'often offensive' comments, Above the Law bans them all.

LawPundit made that same experience already years ago, as have surely many other blogs and websites.

When people are able to post anonymously under aliases, many apparently no longer feel constrained by the finely set but unwritten rules of normal social dialogue, and things get out of hand quickly, leading to flame wars or comparable uncivilized discourse.

In those wars, commenting on the "substance" of things becomes secondary to what is in effect a textual "battle" for a given position in the commenting pecking order, thus reflecting the combative mentality of many blog posters. Mankind is a competitive being, and, without constraints, is on the warpath.

Of course, the fact of having online venues where would-be text-writing warriors can establish their place and prove their worth is perhaps a socially useful thing, but it wreaks havoc on serious blogs.

We found only two solutions to the problem: the first solution is to moderate all comments rigorously, which quickly proves to be a time-intensive waste of time, and the second solution is to dispense with comments altogether, which has the disadvantage that it can reduce the number of total readers and may even antagonize some of the most dedicated blog aficionados, who find themselves "chilled" by not being able to express their thoughts.

Well, that is why there are so many lawyers in real life. Things are difficult enough when there ARE laws, rules and regulations to uphold, and that can be enforced. In their absence, things become an inglorious free-for-all.

Democracy Spring & Democracy Awakening Movement Against Undue Influence in US Politics Leads to ca. 1000 People Being Arrested for Acts of Civil Disobedience to Call Attention to Needed Reforms

What is Democracy Spring? or Democracy Awakening?
or #DoYourJob, as in a placard found there:
"WE DO OUR JOBS! Senate, #DoYourJob".

USA TODAY writes:

"Democracy Spring protests at the US Capitol

[See photographs at USA TODAY.]

[caption to Image 1] Supporters of the activist group 'Democracy Spring', which has been staging protests for a week at the U.S. Capitol to 'end the corruption of big money in our politics and ensure free and fair elections', stage a sit-in at the U.S. Capitol in Washington, D.C. on April 15, 2016. Several dozen of them were subsequently arrested.

[caption to Image 2] Actress Rosario Dawson takes part in a demonstration on Capitol Hill in Washington on April 15, 2016. The demonstration, called Democracy Spring, is advocating a set of reforms the organizers have dubbed the 'democracy movement' demanding Congress amend campaign finance laws and restore the Voting Rights Act, among other actions".

We reproduce the Common Cause press release below because one of our Stanford classmates, Helen Baumann, née Brennan (J.D. 1971), has, according to Facebook postings at her site, probably been arrested for taking part in the Democracy Spring demonstration in Washington D.C. on Capitol Hill: "Aunt Helen Baumann was on Fox News (Waters World on the Bill O'Reilly) a few nights ago. She wasn't interviewed but you can see her marching."

We ourselves are political centrists. Out of pragmatic reality, we are not partial to such demonstrations, but we respect the courage of people who are willing to demonstrate peacefully about causes in which they believe strongly. After all, Helen is an attorney, a mother, and not a political radical.

Stanford people are often found at the forefront of new developments, be these what they may, so that one should take notice of these commitments, because such demonstrations can be only the small tip of a much larger political iceberg.

Anyone who has been following the course of GOP and Democratic Party primaries in the USA can not escape the feeling that something has gone badly askew in America, when even simple primary election processes appear to be greatly under the influence of small groups or caucuses of political elites, big money, hidden underground donors, and undemocratic ways of doing things. Worse, voters' wishes appear to be openly disregarded by "good old boy" political party vested interests, and even disregarded by Presidential candidates. That is not the "democracy in America" that the founding Fathers envisioned and that the nation wants to hold up as a model for the world. NOT.

One can thus fully understand the demonstrators, who are also demonstrating against U.S. Supreme Court decisions that seem to have badly misjudged discrimination and inequality in the nation and have clearly harmed civil rights improvements that had taken place over the course of past decades.

We write that as someone whose "law & order" views are stricter than those of most observers and who favors no special privileges for anyone, at any time, and that includes artificial "legal persons" such as corporations and religious institutions. LAW and its enforcement should be fair and impartial. The people's right to vote should be paramount under the "one person, one vote" principle. Civil rights should adhere only to PEOPLE and not to institutions or religions.

The rise and popularity of more-or-less "non-establishment" Presidential candidates on both sides of the political fence indicates that there is a broad sector of the electorate that is not amused by the shenanigans that they see being enacted daily by establishment political figures on the political stage, especially in the U.S. Congress, which has become more a circus sideshow than a legislature wisely enacting laws for the good of the nation. The problem is a simple one: there are far too many people in political positions who spend their time "playing being important" rather than "doing something important".

We are, by the way, not against wealthy people contributing to political causes, but they should not be able to do so anonymously or under the guise of some institution or company, because democratic governments should not be elected or run clandestinely by hidden powers. Who is to say what amounts of money from foreign political or corporate anti-democratic sources are being funneled into political channels in that way to influence domestic U.S. elections?

Here is the Common Cause press release:

For Immediate Release, April 17, 2016
Contact: Scott Swenson 202-423-8130, sswenson@commoncause.org

Common Cause: Democracy Awakening Proves the People Will Prevail
Facing Challenges, Finding Optimism: Together We Are Building a 21st Century Democracy that Works for Everyone

Washington, DC --- Thousands of Americans gathered on the National Mall calling attention to the citizen-driven grassroots movement steadily gaining momentum and scoring impressive early wins in the six years since the Supreme Court ruled in Citizens United. After allowing more secret unaccountable money to tip the scales more toward wealthy special interests, the court dealt democracy another blow when it made voting harder for many people in Shelby, dismantling parts of the Voting Rights Act. But as thousands gathered to fight the twin threats to democracy, the mood is decidedly optimistic.

In music, artistic performances, speeches from elected officials and movement leaders, the crowd stood as a representation of millions of Americans across the country who are part of more than 100 endorsing organizations. This movement, built town-by-town, state-by-state, started to emerge on the national scene during the 2016 election by framing the Fighting Big Money, Empower People: An Agenda for a 21st Century Democracy. Through a series of events during the past two weeks, the Democracy Spring and Democracy Awakening, more than 1000 people have been arrested in acts of civil disobedience to call attention to the need for the reforms as captured in the Fighting Big Money Agenda and the issues endorsed by these actions.

This growing political force is demanding a debate in 2016 about the future of democracy, money's influence, our right to vote, and the people's desire for government that works for all of us.

Common Cause is the largest and longest-serving citizen-advocacy organization with 35 offices in states working on the frontline of democracy reform. A recent growth spurt in membership, now at 475,000 and climbing, suggests the issues of how our democracy works are as relevant to the New American Majority as they were to the generation that founded Common Cause. In 46 years Common Cause citizen-lobbyists held power accountable, no matter which party was in power, and passed the nation's first open government and transparency laws; fought back against money's influence starting with Watergate; elevated ethics in legislative bodies; expanded the vote to 18 year-olds. Today Common Cause is helping pass the first Automatic and Online Voter Registration laws; leading model reforms to reduce money's influence, such as Connecticut's Citizen Election Program, which shifted the balance of power away from lobbyists and back to the people. In addition, Common Cause is working to pass impartial redistricting commissions to fight polarization and end gerrymandering; working against the concentration of media and for net neutrality, and the full range of issues election related issues to reform, modernize, and create a democracy that works fore everyone in the 21st Century.

Statement from the prepared remarks of Miles Rapoport, Common Cause president, Democracy Awakening, April 17, 2016, Washington, DC.
"As the challenges we face threaten the survival of democracy itself, we have reason to be extremely optimistic."
"We have come to this moment of Democracy Awakening -- because people are realizing the system is rigged against most of us, for the benefit of a few wealthy special interests."
"The issues of racial equality and economic justice, and a democracy that works for everyone are now at the top of the agenda in this election. You made that happen -- you stood on street corners protesting the Citizens United decision; you fought to expand access to the ballot in the face of the Shelby decision. Because you fought back against big money, every candidate for president, congress, and on down ballot will have to answer one question -- "what will you do to reduce money's influence so that everyone's voice and vote are equal and we preserve democracy of, by, and for the people?"
"By working together, town by town, state by state, we will win this our generation’s fight for democracy just as people before us won the rights for us to be here today. We will not be the generation that gives up on democracy, and the next generation, the New American Majority, they will be the generation that finally and forevermore secures a democracy reflecting and worthy of the rich diversity of ideas, experiences, and people that will define 21st Century America."
"You have changed the national conversation, and when everyday American's change their conversations about what is important, the policies and decisions will change soon after. The politicians always catch up sooner or later."

Common Cause is a nonpartisan, grassroots organization dedicated to upholding the core values of American democracy. We work to create open, honest, and accountable government that serves the public interest; promote equal rights, opportunity and representation for all; and empower all people to make their voices heard in the political process.

View of the web: http://www.commoncause.org/press/press-releases/common-cause-democracy.html