Lawyer Stephen Smith’s advertising placard in an upper window is so large and so aggressively looming that it is a topic of public discussion. Above Smith’s likeness is his giant-sized telephone number. Thanks to the astute placement of a numeral 8, the phone number appears at first glance to read “1-888-batattack.” Glowering face. Bat attack. We seem meant to conclude that Smith is a tough guy and therefore an effective lawyer.
Lawyer advertising is so common, it may come as a surprise that from 1908 until 1977, lawyers in the U.S. were barred from advertising. On June 27, 1977, the U.S. Supreme Court, in the case of Bates and O’Steen v. State Bar of Arizona, issued a split decision holding that lawyer advertising is commercial speech entitled to First Amendment protection, and the Arizona Bar’s canon of ethics ban on lawyer advertising violated the federal Constitution. The Bates decision permits limits on lawyer advertising only to prevent fraudulent or misleading ads.
Lawyers Bates and O’Steen in 1977 traveled all the way to the Supreme Court seeking only to be allowed to advertise their legal services as reasonably priced. Once the Court opened the floodgates, however, it did not take long for a full spectrum of lawyer advertising to appear. Today, class action and personal injury lawyers thrive on aggressive advertising. Smith’s big placard casting himself as physically menacing and capable of attacking others for hire is only the latest example.
The Supreme Court’s decision in Bates established that the First Amendment trumps state professional ethics standards. Smith’s advertising is probably legal. But the Bates decision is based in part on the Supreme Court’s conclusion that value flows to consumers through advertising, and that lawyer advertising would make legal services more accessible to the general public and thus improve the administration of justice. That may be so. It is not clear, however, how Smith’s placard contributes to the administration of justice.
The Bates decision determined that lawyer advertising has a role to play in our legal system. It took away from states the responsibility to act as arbiter of lawyer ads and imposed that task on the public. It is an important job. The practice of law plays a singular role in modern society. Our legal system evolved from our commitment to avoid the harsh and unfair consequences that result from resolving human conflicts by brute force. We say we are a nation of laws, not of men. Ads that reduce the art and skill of good lawyering to comic book physicality demean our legal system. They do not reflect the realities of modern legal practice and process.
Before we rely on any lawyer advertising, it is up to us to decide if the ad tells us what we need to know about a lawyer’s ability to work effectively for us within our legal system. Smith’s ad tells us he is an enterprising and creative downtown businessman. It does not give us any information about his education, his experience, his analytic power, his writing skills, his ability to communicate orally, his reliability, his administrative skills or his perseverance — all necessary for effective lawyering in the modern legal system. Smith may have great lawyering credentials, but we have no way of knowing that from his placard or phone number.
I am a retired lawyer. When I began practice 40 years ago, advertising was barred. By the time I joined a Bangor law firm 30 years ago, the Bates decision had freed lawyers to advertise, but the senior lawyers in my firm tried to persuade us young lawyers that advertising was for others. They wanted our firm to avoid actively publicizing our services. The theory was that a lawyer’s good work should, and would, lead others to seek out our services. In large part, they were right.
Ultimately, however, some advertising became essential for our firm’s growth and survival. My old firm’s name does appear in the Yellow Pages, in booklets published for local events, on the Internet, in social media, and even in large letters on the side of its building. But the firm has maintained its high standards. Like most Maine law firms, it avoids advertising that distorts the reality of the practice of law and undermines public confidence in our system of conflict resolution.
Time marches on. Time has marched legal services consumers out into the marketplace on their own, where they act at their peril if they forget it is an effective lawyer they are seeking, not a hired gun.
John W. McCarthy practiced law for 30 years in the Bangor area.