Bates v. State Bar of Arizona

BAR OF ARIZONA BATES STATE еt al. Argued January 18, 1977 Decided June 76-316.

No. Court, opinion Brennan, in which J., delivered BlacKmtjN, joined, I II of JJ., and in Parts and Marshall, Stevens, White, JJ., joined. J., RehNquist, C. Stewart, Powell, which Burger, part, part dissenting in J., opinion concurring in C. filed an Burger, concurring dissent- p. J., opinion part post, 386. filed an Powell, J., post, joined, p. ing part, J., 389. Rehnquist, which Stewart, part, post, opinion dissenting p. filed an Jr., appellants. the cause for C. Canby, argued

William Melvin him on the briefs was L. With Wulf. him on appellee. With argued

John P. Frank cause Orme Lewis. the brief was the cause for the argued Solicitor General Friedman

Deputy the brief reversal. On urging as amicus curiae United States Baker, Bork, Attorney General General Assistant were Solicitor Barry and Grossman.* by John B. Schmidt urging were filed

*Briefs of amici curiae reversal by H. Schuck and Alan B. Chicago Lawyers; Peter the Council of for by Inc., al.; States, et and of United Morrison for the Consumers Union Organizations Philip Congress of Senior L. Plains Goar for the Mountain et al. Stanley by A. filed Justin urging affirmance were Briefs of amici curiae Assn.; by M. for Peter for Bar and H. Blair White the American Sfikas Boskey, Lyons, Edward Assn.; by Bennett and American Dental Ellis the by Assn.; James W. Rankin Optometric for the American A. Groobert Assn.; by Veterinary Medical Scott the American and Donald E. Maryland Bar George for the State W. Liebmann L. Scanlan and Alfred Attorney Miller, Virginia, by General Assn., Inc., al.; Andrew P. et Miles, Attorney General, John J. Assistant Dunn, Deputy and H. Stuart Roger Stokey, by Bar; and P. Attorney General, for the State pro se. by by Assn.; the American filed Medical

Briefs of amici curiae were the Martin J. Solomon for Arizona Credit Union Relihan and John J. Lascher, Rosenthal, Herbert M. Stuart Inc.; by L. League, Edward California; Edmisten, L. Forsyth Bar of A. for the State Rufus

353 opinion delivered the of the Court. Blackmun Mr. Justice part Supreme of its regulation As Arizona Bar, disciplinary- Court of that imposed State has enforces a advertising by attorneys. pre- rule that restricts This case issues: 1 2 sents two whether 15 Act, §§ Sherman 1 and such state 2, regulation, §§ U. S. C. forbid whether operation Amendment, of the rule violates the made First through applicable to States Fourteenth.1

I attorneys are Appellants John Bates and Van R. O’Steen such, practice in the Arizona.2 As licensed law State of Bar of Arizona.3 they aрpellee, members State Jr., Carolina, Vañore, Deputy Attorney Andrew A. Senior of North General Attorney General, and Attorney General, Harrell, Norma S. Associate Harry Bar of for the State North Carolina. W. McGalliard State, Bigelow 809, (1975); Schneider v. Virginia, 421 811 U. S. 1See 308 U. S. University Col appellant graduate of Arizona State Each law school faculty named lege of Law. Mr. Bates was class; graduated cum laude. outstanding Mr. student of his O'Steen App. 220-221. (a) Arizona, 17A Ariz. Rev. Supreme Court Stat. Rule (1973), pp. reads part: 8A-85 according justice In order to advance the administration of

“1. hereby perpetuate, create law, Supreme of Arizona does ... Court organization an under the and control of this Court and continue direction Arizona, persons now hereafter known as the State Bar of all engage practice shall be members licensed in this state in the of law rules of this Bar of in State Arizona accordance with Court. ..." out as one practice in hold himself person No shall law this state or

“3. member of the may he practice law unless is an active who in this state state bar.” (1976). 32-237, 32-201, 32-264 Const., 3; See Ariz. Art. Rev. Stat. Ariz. §§ Donohue, Lathrop v. Bar, thus, integrated one.

The Arizona is an See 367 U.S. 820

After to the in 1972, appellants admission bar worked as attorneys County the Maricopa Legal Society. Aid App. 221. opened

In March 1974, appellants Society left the a office, they “legal law which call Phoenix. Their clinic,” a in legal persons aim was to at fees to provide modest services qualify governmental moderate income who did not Id., they would end, aid. at 75. order to achieve this accept divorces, as only routine such uncontested matters, personal adoptions, simple bankruptcies, uncontested changes kept for which costs could be down name, equipment, typewriting extensive use of automatic paralegals, procedures. com- and standardized forms office More be plicated as would not cases, divorces, such contested Id., prices so accepted. appellants at 97. set their Because relatively they handled, have return on each case low Id., they depended at on substantial volume. 122-123. manner for two conducting practice After their and clinical appellants practice their years, concluded that availability concept could not survive unless serv- fees were and, particular, at was advertised ices low cost Id., gen- in order to at Consequently, advertised. 120-123. necessary business, “to attract is, erate flow of Arg. 4, on Febru- id., 121; appellants Tr. of Oral clients,” at in the (reproduced an ary 22, placed advertisement 1976, 385) Repub- Arizona opinion, infra, at Appendix to this in the Phoenix daily newspaper circulation lic, general As stated seen, advertisement metropolitan area. very offering services at reasonable appellants “legal were fees for certain services.4 fees,” their listed appearance from after an increase business office benefited doubtful, however, App. 235-236, 479-480. It of the advertisement. advertisement, solely for the was due advertis whether increase Id., might prompted It be ex ing itself several news stories. Hobbs, See nonetheless, pected,. will increase business. Lawyer Advertising: Beginning Enough, Not 62 A. B. A. J. A Good but

355 Appellants concede that the advertisement constituted a Disciplinary incorporated clear violation of Rule 2-101 (B), Rev. (a) 17A Ariz. Supreme Arizona, Rule Court of p. disciplinary provides rule (Supp. 1976). Stat., part: his A or

“(B) lawyer publicize himself, not shall with any lawyer or affiliated partner, or other associate, maga- him or lawyer through newspaper or his as a firm, announcements, zine or television advertisements, radio city or directories display telephone advertisements in the he or nor shall publicity, other means of commercial or so in his behalf.” permit authorize others do (1976) (lawyer referred more than referral service advertised city of many in another 11 times as clients as one that did not advertise size). comparable general (B) exceptions The remainder of subdivision states prohibition: legal by, by, services

“However, lawyer paid or whose a recommended may authorize by, qualified legal organization a are furnished assistance dignified commercial organization permit or to use means or assist such any lawyer by name, identify to describe publicity, which does This availability legal benefits. legal its services or service or nature of lawyer as dignified of a prohibit limited and identification rule does not lawyer by as well as name: germane “(1) professional his status political In advertisements when campaign pohtical to a issue. political to the or lawyer profession of a “(2) pubhc when name and In notices purpose reasonably pertinent for a required or are or authorized law potential the attraction of clients. other than civic, business, fide “(3) reports of a bona In routine and announcements director or he as a professional, political organization which serves officer. by him.

“(4) prepared In on documents legal publications, textbooks, treatises, and other “(5) In and dignified thereof. and in advertisements along qualified legal organization, “(6) assistance communications (6) (A) 2-102 permitted under DR biographical information 356

Upon filing complaint by president the a the initiated App. hearing the State a Bar, was held before a 350, three- member Special Local Administrative Committee, pre- as by Supreme scribed Arizona Court Rule 33. 16. App. Although position the committee the it could took that validity consider an on the the attack the allowed rule, challenge parties develop a such could record on which a be the based. The committee recommended that each of less appellants suspended practice be law for not from the Id., the by than six review Upon months. further pursuant Supreme Board of Governors of the to the Bar, State only a 36, Court’s Rule the Board recommended one-week consecutively. suspension for run appellant, each the weeks to App. 486-487. 37, Rule permitted by Supreme as the Court’s

Appellants, sought arguing, in the Supreme Arizona, then review Court 1 among disciplinary §§ other that rule violated things, the tendency 2 to limit of the Act because its Sherman Amend- infringed and that rule their First competition, the In re rejected rights. ment The court both claims. Bates, plurality6 (1976). 113 555 2d 640 The 394, P. Ariz. a skepticism with the claim that may have some viewed an effect on com- advertising might on have adverse restraint might if violate the even the rule otherwise petition.7 But, reputable 'in law list [biographical be listed a information beneficiary organization.” directory’], a of such directed to member or 6 justices five plurality opinion represented the views of the The of two 2; Const., 6, Art. compose Supreme Arizona. Court of Ariz. § (1956). evident, however, majority It Rev. 12-101 Ariz. Stat. § exposition although opinion, One plurality’s of the law. adhered agreed plurality opinion styled dissent, author stated that the punishment. justice, One respects” except for the reduction “in all concurring, agreed he “with much of law specially stated that opinion many expressed majority.” The comments remaining justice is discussed the text. 7 Assn., 688, Retailers F. 2d 691 United States v. Gasoline But see plurality regulation concluded that

Act, exempt was Act activity from Sherman attack because the rule “is an Id., P. acting sovereign.” of Arizona State at regulation thus held to shielded from 2d, at 643. was exemption Act of Parker v. Sherman state-action Brown, U. S.

Turning to noted plurality the First issue, Amendment have survived professional restrictions challenge along constitutional in the with other past, citing, Co., (1955), Williamson Lee 348 483 cases, Optical v. U. S. Examiners, (1935).8 and Semler Dental 294 U. 608 S. Vir Although recognizing Virginia Pharmacy Board v. that Council, Bigelow v. ginia Consumer 425 748 (1976), U. S. speech 421 Virginia, 809 held that commercial (1975), U. S. Amendment, protection entitled to certain under the First was in acknowl plurality passages opinions focused those adver edging special might considerations bear on the Virginia by lawyers. services See tising professional Council, at Pharmacy S., Consumer 425 U. Board v. Bigelow v. id., (concurring opinion); 25; 773 at 773-775 n. apparently plurality 421 825 10. The Virginia, S., at n. U. profes dealing older decisions was of the view that unscathed, these recent cases advertising survived sional Amend- (B) passed Rule 2-101 First Disciplinary held 150, Socony-Vacuum, Co., 1961); Oil 310 U. S. (CA7 cf. United States v. Engi Society (1940); v. National United States 221-222 of Professional (1977) (ethical prohibition 41, 2d 978 neers, App. D. C. 555 F. 181 U. S. submitting competitive engineering for society bids from on members Act). services violates Sherman Board, The Court Mexicо 374 U. S. Head v. New See also any these cases. Amendment issue in a First did not resolve upheld challenges on due in the face of based were restrictions Al equal with interstate commerce. protection, and interference process, Head, in the Court refused issue was though the First Amendment raised presented the state courts had been neither it it to consider because Id., appeal. 432-433, n. 12. nor reserved the notice at agreement with the court, muster.9 Because ment appellants’ “was felt Governors, Board of DR constitutionality to test good faith done only.10 the sanction to censure (B),” 2-101 it reduced P. Ariz., 400, 2d, at at 646. Justice opinion of Mr.

Of interest here is the particular been view, should have the case Holohan in dissent. his consumers public right “the framed terms of profession,” legal to know about activities citizens id., involving than as one 2d, 648, rather 555 P. at light, in this Observed merely regulation profession. of a to the disservice he felt a substantial performed the rule public: is charge lawyers information of what

“Obviously the in need by those decisions important private economic per- helpful, information also services. Such intelligent an to the formation haps indispensable, system on how well opinion by or even regulated should be working and whether to such access prevents issue The rule at altered. . . . Id., 2d, P. 555 402-403, at by public.” the information at 648-649. types that some acknowledged

Although the dissenter felt that he deception, cause confusion advertising might advertising. rather than all form, remedy ban that the was to concept of advertis- dislike despite “personal Thus, his the he found id., at 2d, 648, 555 P. 402, by attorneys,” ing unconstitutional. ban (1976). 813 429 U. S. jurisdiction. probable noted

We 9 equal protection unsuccessfully challenged on the rule Appellants also procedures vio disciplinary that asserted the grounds vagueness made here. are not These contentions process. due lated pending final Rehnquist stayed of censure the order Justice Mr. by this Court. matter determination II Act Sherman In Brown, Parker v. S. Court held (1943), U. against Sherman Act was apply not intended to cer- tain Smith, state action. See also Olsen 195 U. v. S. 344-345 In (1904). Parker raisin producer-packer brought suit аgainst program California challenging officials a state designed to competition thereby restrict among growers and to maintain prices the raisin market. held that The Court the State, sovereign, imposed “as restraint as an act of government which Act did Sherman not undertake to prohibit.” 317 U. S., Appellee at 352. argues, Arizona Supreme exemption Court the Parker held, also bars the instant Sherman Act claim. agree. We

Of Parker v. Brown has course, not been final word In two matter. recent cases has considered Court exemption state-action Sherman ‍‌‌​​​‌‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​‌‌‌​​​​‌​​‌​‌‌​​​​‍Act and found it inapplicable one reason or another. v. Goldfarb Bar, State (1975); U. S. 773 Cantor Co., Detroit Edison Cantor, 428 U. S. 579 however, are Goldfarb and their distinguishable, reasoning supports our conclusion here. 1§ we held the Sherman Act was Goldfarb by publication

violated of a by minimum-fee schedule county by bar association and its enforcement the State Bar. The schedule and its enforcement operated mechanism rigid price to create a floor for services and thus constituted example price fixing. a classic Both bar associations activity argued shielded their was the state-action Court exemption. This concluded that the action was not emphasizing that “we need not protected, inquire further into question fairly the state-action because cannot be said that Virginia through Supreme its the State of Court Rules anticompetitive activities of required respondent.” the either In the instant case, by 421 at 790. S.,U. the contrast, chai- 360 the

lenged command of Arizona restraint is the affirmative (a) 29 Supreme (a) Court its 27 its under Rules body court is Disciplinary (B). Rule 2-101 That the ultimate see Ariz. wielding practice law, over the power the State’s P. 29 Bailey, (1926), re 30 Ariz. Const., 3; Art. by and, the direction the thus, “compelled restraint State acting at 791.11 sovereign.” S., as a U. The

Appellants seek draw from Cantor. defend- solace light distributed bulbs to case, ant an electric utility, including charge, its residential customers without additional utility plaintiff, the state-regulated cost in its rates. the brought claiming that light bulbs, suit, retailer who sold utility using distribution monopoly power was its bulbs. The electricity compеtition in the sale of restrain utility immunize itself from Court held that could not challenged practices its by embodying Act Sherman attack approved by in a commission. Since the dis- tariff state Code of Pro- ciplinary here is from the rule at issue derived Association,12 Responsibility of American Bar fessional immunity no argue by analogy to Cantor appellants having the Code from the bar’s success should result They the interest adopted by the also assert State. prevail the state must over embodied in Act Sherman note, moreover, opinion concluded Court’s We Goldfarb anticompetitive con holding that certain with the observation that “[i]n by lawyers reach Sherman Act we intend no is within the of the duct regulate professions.” 421 authority the State to its of the diminution challenge discipli S., Allowing instant Act U. 793. Sherman nary precisely that effect. have undesired rule would Arizona, Stat., (a) 17A Ariz. Supreme of the Court of Rev. Rule 29 1976), provides: p. (Supp. prescribed obligations of shall duties and members bar]

“The [of Responsibility Bar American Associa- of Professional Code 1, 1970, Court.” The tion, as amended November effective (B), present rule, DR is now identical with challenged 2-101 version (B), rule, 2-101 ABA parallel numbered DR Code also August Responsibility, as amended to Professional

361 Par- regulating in 428 at 595. S., interest the bar. See U. ticularly they is the because the case, claim, interest upon ban is not tailored as to intrude the federal so id., necessary. 34, to the minimum extent at 596 n. See in which Cantor however, We the context believe, is Cantor would First, obviously, arose critical. and most been entirely have been if the claim had an different case rather against public agency, directed official or a claims against private party.13 appellants’ than a the Here, the against Supreme the State. The Arizona Court is the interest; in the party adopted rules, real it process. ultimate of fact and law in the enforcement trier Although Wilson, In 441 (1970). re 106 470 2d 34, Ariz. P. enforcement, rules, in of the plays part Bar a State acts by court; appellee completely its role is defined supervision. its continuous agent as the the court under in the State emphasized the Court Cantor Second, interest the market independent regulatory had no id., 612-614 584-585; 604-605, at at light S., bulbs. 428 U. suggestion There was no (concurring opinions). market competitive in the justified by was flaws program

bulb And an safety concerns. health or response or was a not essential State’s program for the was exemption regulation of contrast, utilities. regulation of electric power the core of the State’s bar is at activities of the ac this Court Indeed, public. protect Goldfarb regulating of the States interest knowledged that “[t]he lawyers are essential to great since especially lawyers opinion in Cantor that was SteveNS, portion of his in a Mr. Justice Parker JJ., White, MaRshall, observed that Brennan, joined Cantor officials, the claims whereas against public Brown was suit S., 585-592, at only private defendant. U. against directed were applied the state-action in Cantor would have The dissenters 600-601. Id., identity defendants. 615-617 at exemption regardless of Rehnquist, JJ.). J., joined Powell (Stewart, administering function primary governmental justice, ” historically S., been ‘officers courts.’ U. have Hurley, (1961).14 Cohen v. S. 123-124 U. 792. See advertising by over specifically, More controls solicitation and oversight.15 long attorneys subject been to the State’s have regulation of interference with a traditional Federal State’s the sanc profession entirely is unlike the intrusion Court in Cantor.16 tioned by instigated in light-bulb program the Cantor was

Finally, only utility acquiescence regulatory with of the state into program The incorporation commission. State’s utility its authorized the tariff reflected conclusion that was S., 428 U. practice it so desired. See employ if entirely dif- The us is and n. 31. situation now before 594, disciplinary clear articulation ferent. The rules reflect a behavior. policy régard professional State’s subject rules are Moreover, shows, as the instant case Arizona by policymaker to pointed re-examination —the concern proceedings. Our Supreme Court —in enforcement unnecessarily being inappropriately federal policy that situation; in such a policy to state is reduced subordinated clearly so policy it significant we deem the state supervision- affirmаtively expressed the State’s is so active.

14 Spevack v. Hurley, respects, has overruled. in been Cohen v. other Klein, (1967). 385 U. S. 511 15 attorneys to have by Arizona seems The limitation incorporation American with the reference 1919 commenced Arizona’s statu Ethics into Bar 1908 Canons Professional Association’s Laws, tory Sess. 1919 Ariz. c. law. 16 today presaged Indeed, on the Sherman Act issue was our decision Virginia Council, Pharmacy Virginia Consumer Board v. 425 U. S. “Virginia require pro is free there: whatever 770 We noted pharmacists; it them or of its subsidize fessional standards wishes Brown, Parker ways. competition in protect other Cf. v. them from (1943).” U. S. determina- Supreme the Arizona Court’s

We conclude Act claim is barred appellants’ tion Sherman Brown Parker exemption must affirmed. v. hH

I—I Amendment The First

A Con Pharmacy Virginia Board Virginia Last Term, Council, sumer Court considered (1976), U. S. of a statute validity under the First Amendment con “unprofessional declaring pharmacist guilty that a was phar drug prices. duct” if prescription he advertised or the monetary penalty macist to a subject would then be thus suspension The statute or revocation his license. drug price effectively prescription prevented desired pharmacist who recognized that information. We news report any particularly to advertise did not wish philosophical, worthy any cultural, fact or to comment was characterized his desired communication political subject; Ythe drug “T X at you prescription sell simply: will ” Id., that commercial we held price.’ Nonetheless, 761. First protection of the entitled to the speech of kind was Amendment. that our ibid., with the observation analysis began,

Our in the though it speech even long protected have cases Valeo, 424 1 Buckley advertisement, v. S.U. paid form of a Sullivan, 376 Times 254 York Co. v. U. S. New (1976); California, Smith v. profit, is sold for form that (1964); Pennsylvania, Murdock v. 319 105 U. (1959); S. U. 147 361 S. pay or contribute of a solicitation to form or in the (1943); Sullivan, supra; Cantwell v. Times York Co. v. New money, speech If commercial is to (1940). Connecticut, 310 U. S. distinguished by content.” “must be its distinguished, competing interests consideration But a S., at 425 U. speech should not be with- such our view reinforced protection merely proposed from a mundane drawn because it speaker’s commercial interest though transaction. Even largely speech economic, protected the Court such has Co., g., Packing NLRB Gissel See, certain e. v. contexts. Alabama, (1940). Thornhill (1969); U. S. 575 310 U. v. S. concern listener’s interest is substantial: the consumer’s speech may for the free of commercial be far keener flow often Moreover, than concern for urgent political dialogue. his Ad significant speech. societal interests are such served carry though entirely commercial, often infor vertising, day. Bigelow import significant mation of issues of the See Virginia, speech And commercial v. U. S. 809 availability, nature, serves to Inform the prices products services, performs and thus an indis pensable enterprise role in in free the allocation resources Co., FTC system. See Procter & Camble 386 U. S. (1967) concurring). short, 603-604 such (Harlan, J., speech assuring serves individual and societal interests informed and reliable 425 U. at 761-765. decisionmaking. S.,

Arrayed against the free flow these substantial interests in speech proffered justifica- commercial were a number of were among tions for the Central them ban. maintenance claims that ban was essential to the was professionalism among pharmacists. licensed It asserted might price competition would create adyertising pharmacist expense. cause the to economize at the customer’s truly professional portions might He reduce or eliminate the packaging drugs of the maintenance and of so his services: on effectiveness, supplementation to assure their and the as prescribing physician’s advice as to use. occasion of advertising it would said, was cause consumers Moreover, thereby undermining pharmacist’s effort to price-shop, to regular use of a customer drug monitor the so to ensure that as provoke would not drug allergic an reaction or prescribed with another substance the incompatible customer was consuming. was Finally, argued it that would image reduce the of the as a pharmacist specialized skilled and image craftsman —an that was said to attract talеnt profession good and to reinforce the habits of those in it—to Id., a shopkeeper. mere at 766-768.

Although acknowledging strong the State a inter- had est in maintaining professionalism among pharmacists, this Court proffered justifications concluded that were inade- quate to support High professional ban. standards were in large part regulation assured the close pharmacists to which Id., were subject. 768. at inspection And we observed that “on close seen that the protectiveness State’s its large citizens rests in measure Id., advantages being kept ignorance.” their But we presence noted the potent alternative to this “highly paternalistic” approach: “That alternative to as- sume that harmful, this information is not in itself people perceive will own best if only they their interests well enough informed, and that the best means to that end is to open the channels of communication rather than close Id., them.” dangers sup- at 770. choice between the pressing information dangers and the from arising its free flow precisely seen was the choice “that the First Amendment makes for us.” Ibid. See also Associates, Linmark Inc. Willingboro, 431 U. S. have set out summary Pharmacy

We this detailed because the opinion conclusion that rule disciplinary Arizona’s might is violative First Amendment be said to flow from it. Like the Virginia statutes, disciplinary fortiori serves inhibit rule the free flow of commercial information keep ignorance. Because possi- however, among bility, professions might differences different constitutional bring considerations into play, we judgment professions.17 reserved as to other specifically that we regulation stress have considered “We case the In the arguments instant case we are confronted with the explicitly directed regulation advertising by toward the attorneys. licensed

B we presently First, The issue before us is a narrow one. need not peculiar problems address the associated with adver- tising relating to the Such quality claims services. probably susceptible claims measurement precise are not or might well and, circumstances, verification under some Appellee dеceptive misleading or or false. public, even adver- not do suggest, perceive, appellants’ does nor we as otherwise, extravagant tisement contained or claims, for issue quality of services. leave that Accordingly, we problems day. resolve the Second, another we also need not hos- in-person clients —at associated with solicitation of pital any room other situation site, or the accident or “run- attorneys agents or their breeds undue influence — Activity of over- might pose dangers that kind well ners.” newspaper reaching misrepresentation not encountered and issue also is advertising. Hence, announcement criticism of adver- appellee’s Third, before us. we note much some force to attorneys apply does not tising as to advertising: information of the basic factual content office number, attorney’s address, telephone name, and has itself American Bar Association hours, and like. Responsibility in its current Code of Professional a provision information, more, disclosure of such allow the that would express opinion by pharmacists. Although we no commercial functional, distinctions, between historical professions, other Physi- quite factors.' may require different consideration professions, dispense products; standardized lawyers, example, do not for cians nature, variety infinite professional services of almost they render if consequent deception possibility confusion enhanced with the S., advertising.” 425 U. at kinds of they undertake certain were to id., opinion). (concurring original). (emphasis in See 773-775 25n. in the of telephone directory. classified section the DR 2-102 (A) (6) (1976).18 We recognize, however, that an spartan provide diet limited to such fare would scant nourish- ment. today

The heart dispute before us whether lawyers may constitutionally also at which prices advertise the disciplinary rule, referring listing reputable The a in “a law after to list,” legal directory, directory, or telephone company classified section of a states: published following: name, including

“The only data include associates; of firm and professionаl name law names of and addresses telephone numbers; lawyer one or fields more of law in which the or concentrates, prohibited by authority having firm law to the extent not jurisdiction subject; practice under state law over a statement law, prohibited by is limited to one or more fields of extent not authority having jurisdiction under subject state law over the of practice by lawyers; lawyer of limitation statement or law specializes particular practice, firm in a field of law or law to the extent jurisdiction permitted authority having under state law over subject specialization by lawyers in prescribed and accordance with rules authority; place birth; place date and date and of admission courts; to the bar of state and attended, federal schools with dates graduation, degrees, distinctions; and quasi- other scholastic public offices; military service; posts honor; legal authorships; legal teaching positions; memberships, offices, assignments, committee and memberships associations; in bar memberships legal section and offices societies; professional licenses; fraternities technical and mem- scientific, berships professional societies; technical and associations and foreign language ability; names references, and, addresses of consent, regularly their represented; names clients whether credit cards arrangements accepted; or other credit office and other hours of avail- ability; statement fees for an initial consultation or the avail- ability request upon of a written schedule fees or an estimate of the charged specific to be services; provided, fee for the published all such only data shall disseminated extent such format language uniformly applicable lawyers, prescribed by authority all jurisdiction by having subject. state law proviso over This is not any applicable implemented by authority state unless until it is such in that state.” justifi- Numerous performed.

certain routine services will be price such advertis- proffered cations are for the restriction of ing. consider each in turn: We places Appellee The Adverse Effect Professionalism. price effects that it feels

particular on the adverse emphasis key legal profession. will on the have involve- pride that is the sense of professionalism, argued, price generates. It is claimed discipline ment in the will which bring commercialization, advertising will about self-worth. and attorney’s dignity undermine the sense pro- affect marketplace adversely the The hustle of the will (cid:127) damage the orientation, irreparably fession’s and service his to and lawyer’s earn the need delicate balance between to said erode obligation Advertising to is also selflessly serve. perceives client the client’s attorney: trust his Once lawyer is his confidence profit, that the motivated welfare the client’s attorney acting a commitment to is out of digni- advertising is to tarnish jeopardized. is And said profession. public image fied spirit commend the course, and recognize, We and to practiced is profession of law service with which the li- Court, Members this present it which is dedicated. would And we attorneys could not feel all, otherwise. censed today would our pause if we felt that decision have reason to postulated find the connection spirit. But we undercut professionalism true erosion of between argument pre- At its severely core, strained. be from themselves attorneys conceal must sumes that lawyers their earn the real-life fact that from their clients ‍‌‌​​​‌‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​‌‌‌​​​​‌​​‌​‌‌​​​​‍attorneys engage that few suspect at the bar. We livelihood moreover, is the client, And rare self-deception.19 in such readily argument all stated: “We appellee oral for the Counsel they may businesses, that have billion-dollar big offices are know that law computers, all the rest. clients, they’re run with or million-dollar them noncommercial made to term argument be And so Arg. humbug.” Tr. Oral is sanctimonious even one of modest who enlists means, the aid an at- torney expectation with the his will be ren- services Lawyers of charge. People dered free for Christensen, See B. American (1970). of Moderate Means 152-153 fact, attorney “a Bar Association advises that an shоuld reach of the fee agreement clear with his client as to the basis charges soon made,” and that is to be done “[a]s Pro- lawyer employed.” as feasible after Code of has been If the commercial Responsibility (1976). fessional EC 2-19 basis of the on ethical relationship promptly is to be disclosed once the client it seems inconsistent grounds, office, to condemn information the candid revelation the same before he arrives at that office.

Moreover, the assertion that will diminish community attorney's reputation open question. in the engineers yet professions these advertise,20 Bankers and Lawyers People Christensen, of Moderate Means 151-152 See B. Note, Duty Make (1970); Advertising, Profession’s Solicitation Indeed, Available, Legal 81 Yale J. Counsel L. alleged appears profession now views the adverse that even medical light appellee. A in a different from the effect of somewhat pro American Medical Association Statement of the Judicial Council of the part: vides in Principles “Advertising' proscribe ad- Medical do not Ethics] [of —-The they proscribe public

vertising; patients. the of . The solicitation . . physicians, type practices, is entitled to know the names the of their of offices, hours, their their office and other useful information the location of physician. people enable to make a more informed choice of will accepted physician may through the local “The furnish information physicians communication, open media of which are to all signs, professional cards, dignified announce- on like conditions. Office directory examples ments, telephone listings, reputable are directories acceptable making public. of media available for information may give listing physician biographical

“A and other relevant for data directory. reputable physician, option, a If the at his ... chooses may supply information, charge for a published fee data include his range services, specific types standard office or his fee or of fees for of visit provided of the pertinent disclosure is made variable and other factors 370 sug- it has been regarded undignified.

are not as fact, lawyers of to advertise creates gested that failure The of profession.21 absence ad- disillusionment with failure to may profession’s seen to reflect the vertising be community: many reveal that reach out and serve Studies they perceive not counsel even when a need persons do obtain 22 or of price of services because an because feared cynicism competent attorney.23 inability Indeed, to locate a specified. published data in- affecting The the amount of fee false, misleading, or physician, clude but other relevant facts about A. deceptive 235 J. A. M. statements or claims should avoided.” (1976). Adversary Lawyers’ System 115-116 Freedman, M. See Ethics an Attorney Legal (1975); Steinberg, Fee Branca & Schedules and Adver tising: Implications Goldfarb, 516-517 The of UCLA L. Rev. Availability Report Special Legal of The of Committee on the Services, adopted by Delegates the House the American Bar Associ of of ation, Prepaid Legal and contained in ABA's Revised Handbook on (1972), states, persuaded 26: or feared Services that the actual “We price unequal coupled bargaining services with a status is such sense significant a E. barrier to wider utilization services.” See also Koos, Family (1948) (survey The Law The which work 47.6% ing-class using lawyer); cost as not a P. families cited the reason for Murphy Walkowski, Prepaid Compilation & of Reference S. Materials study 1,040 Legal (1973) (summarizing 2-3 514 of Services in which using lawyer’s respondents gave cost for a expected as reason services despite perceived need). There are indications fear of cost un Petition the Board of Governors of District Columbia realistic. See Governing Bar Bar for Rule X of the Amendments to Rules (1976), reprinted App. in the to Brief for United District of Columbia study 10a, (reporting Amicus 24a-25a in which middle- States Curiae lawyers' drawing fees for the class consumers overestimated 91% will, reading advising 2-page simple on a installment sales 340% consultation). Marks, also F. contract, and for 30 minutes of See 123% Shreveport Clifton, Experiment Plan: An in the Hallauer, R. & R. Legal (1974). Delivery 50-52 of Services survey of preliminary release results conducted The some Survey Legal by Special Needs in collaboration ABA Committee to with-regard profession to the may be created the fact that long has publicly condoning eschewed advertising, while actions of who attorney structures his social civic or so as to provide potential associations contacts with clients. appears It the ban on rule advertising originated as a etiquette not rule of Early lawyers and as a ethics. in Great Britain viewed the as a of public law form rather service, they than as a of earning living, means and looked down “trade” unseemly. on 210- Legal See Ethics Drinker, H. 211 (1953).24 Eventually, the attitude toward fostered this aspect view evolved into an of the ethics of profession. Id., habit tradition are But and in adequate themselves an answer to a constitutional challenge. person we do not belittle who day, living by strength earns his arm the force of his lawyers mind. the belief that are somehow “above” his Since strongly agreed Bar American Foundation reveals that and 48.7% slightly agreed people go another with the statement do not 30.2% lawyers they way knowing lawyers no because have which competent Legal particular problems. ABA, to handle their Services Public, (Jan. 1976). Spalding, Alternatives 15 See B. Curran & F. Legal (Preliminary 1974) (an Report The Needs the Public earlier concerning survey). Although advertising by report the same is not itself adequate problem completely, provide to deal with this it can some of intelligent information that a consumer needs to an make selection. changing. An British view be official British Commission recently presented reports recommending that be to Parliament solicitors permitted Monopolies Mergers Commission, Serv advertise. England Report Supply in A ices and Wales: on the of Serv Solicitors England ices of in Solicitors Wales Relation Restrictions on Advertising (1976); Monopolies Mergers Commission, 39-41 Services Report Supply Solicitors in A on Scotland: of Services of Solicitors (1976). Scotland in A Advertising Relation to Restrictions on 31-34 companion study concerning changes barristers rеcommended no upon advertising, chiefly made the restrictions their because barristers directly by laymen. Monopolies Mergers are not hired Com mission, Report Supply A Barristers' Services: on of Barristers’ Serv Advertising ices Relation Restrictions 21-24 trade has become an anachronism, the historical foundation for the advertising restraint has crumbled. Inherently

2. The Misleading Nature Attorney Adver- tising. It argued advertising legal is that services inevita- bly misleading be (a) will such because services are so individ- ualized with regard quality prevent to content and as to comparison informed of an advertisement, (b) the basis be- cause the consumer of services is unable to determine just (c) advance he because needs, what services attorneys will irrelevant factors highlight fail to skill. show the relevant factor of adver- professional are not that persuaded

We restrained Although by lawyers misleading. be tising inevitably will it attorneys unique, many are indeed performed by services fixed any could advertise attorney would or is doubtful that lend only type.25 The services for services of that prices uncon- routine ones: advertising are the themselves to personal the uncontested divorce, simple adoption, tested very serv- like—the and the change of bankruptcy, name, precise service Although the by appellants.26 ices advertised although legal may vary slightly, and each task demanded make these facts do not fungible, services are Responsibility, 90 Evolving of Professional Concept Morgan, The See and the Note, Advertising, Solicitation (1977); 702, 741 Harv. L. Rev. J. Available, 81 Yale L. Legal Duty Counsel to Make Profession’s advertising is a suggest more considerations Economic frequently goods used inexpensive marketing of significant force in the unique marketing products in the markets than mass and services with or services. misleading in the advertisement nothing is Moreover, we see Associa Bar The American half-hour consultation. of an initial the cost per (A)(6) (1976), Responsibility DR 2-102 Professional Code of tion’s of a section in the classified information such fee disclosure of mits the 18, supra. is not mislead If the information directory. n. telephone See why it see directory, difficult to telephone published in a ing when newspaper. misleading published in a when becomes misleading attorney long necessary so work does price.27 at the advertised argument services are unique so that fixed rates meaningfully cannot established Bar appellee refuted record in case: The State a sponsors Legal Program par- itself in which the Services ticipating attorneys agree perform to like those adver- services appellants tised the App. at standardized 459-478. rates. until the decision of Court Indeed, in Goldfarb Bar, State Bar Maricopa County U. the (1975), S. apparently suggested Association had schedule minimum legal fees find App. for standard tasks. thus 355. We little the because misleading force assertion that is advertising of an inherent lack of standardization in services.28 component the argument The second adver- —that 27One commentator has observed: reveals moment’s reflection “[A] argument barbers; rarely can be haircuts that the same are two made quote identical, but that does not mean that barbers cannot a standard relatively price. Lawyers perform which countless standardized services utterly vary complexity job in but much somewhat not so as to make each unique.” Morgan, supra, n. at 714. argue and MR. Justice Powell in dissent that The Chief Justice misleading the included because exact services that are will be clearly package Specified in an be understood advertised not or Post, bar, the how prospective client. at 386-387 and 392-394. The ever, power define be an retains the to the services that must included thereby divorce, standardizing package, as an advertised such uncontested recognize might fail to “product.” that an occasional client the We attorney legal problem visit an appreciate complexity of his and will difficulty ad handled that his can be at in the mistaken belief however, usually exposed misunderstanding, will be price. vertised The attorney impose, at consultation, and an ethical would at the initial charge charge all for the most, no at a minimal consultation performed, a fee сould have work If the client decides to discussion. largely is client thus normal manner. negotiated light advertising. there were no be if position he would the same problem can be resolved those whose to of the benefits on is not warranted account price, suppression the advertised at legal difficulties. his misperceives client who occasional is little better.29 It diagnostic tising ignores role—fares attorney merely to ascer- go an unlikely many people to attor- Rather, bill of health. they if have a clean tain tasks. specific likely employed perform neys to be per- involved may not know the detail Although the client identify the service doubt is able forming task, he no advertising lends generality which he at the level of desires itself. does Advertising without merit: component not

The third an which to select foundation on complete provide deny consumer, attorney. peculiar But it seems least some incomplete, information ground an informed needed to reach information relevant advertising— prohibition of The alternative —the decision. con- flows to information that only to restrict serves public the argument assumes that Moreover, sumers.30 29 advertising abortion argument be made about The same could may of the medical layman know all the details Although not services. accurately diagnose pregnancy, always able to may be not procedure Bigelow protection. v. advertising First Amendment has certain such (1975). Virginia, 421 U. S. 809 30 advertising it allows might argued is undesirable because It be reputational advertising for information potential substitute client to Scrutiny g., Note, attorney. See, e. Act appropriate Sherman selecting an by Attorneys, 62 L. Advertising and Solicitation Va. on of Bar Restraints relying (1976). system 1135, Since in a referral 1152-1157 Rev. dependent on attorney’s partially is current reputation an future business providing a mechanism system has the benefit both of performance, such a attorney creating and of an incentive for an to disciplining for misconduct may Although system job present clients. have do a better for his lawyer practiced small, homogeneous com typical in a worked when the easy munity ascertaining reputational for a information was which seriously questioned efficacy. current consumer, commentators have its Lawyers g., Christensen, People Moderate Means 128-135 See, e. B. Note, (1970); Bar Restrictions on Dissemination of Information about Services, (1974); Note, Act Legal UCLA L. Rev. Sherman supra, special Scrutiny, at 1156-1157. The trends of urbanization and practice long typical since have moved of law from its small- ization is sophisticated enough realize the limitations adver- to tising, public kept ignorance and that is better than suspect trusted with incomplete correct but information. We argument public. rests on an underestimation of the any any based justification we view as dubious that is event, Pharmacy ignorance. Virginia on the of public benefits See Council, Board 769-770. Consumer 425 U. S., to correct omis- Although, course, power the bar retains the sions presenting picture, that have the effect of an inaccurate If preferred remedy less. is more rather than disclosure, attorneys advertising by the naivete of the will cause to be misleading, then it is the bar’s role to .assure populace place is' to sufficiently informed as to enable it advertising proper perspective. its The Justice. Adverse on the Administration of Effect stirring up Advertising effect of is said have the undesirable machinery designed serve those litigation.31 judicial claims. sufficiently aggrieved bring who feel forward their encourage the assertion Advertising, it is serves argued, unsettling thereby undesirably rights in courts, Lawyer Antiquity setting. Pound, The from to Modern town See R. qualifications lawyers is not Information as to the Times 23, supra. And, inac- many. available, if n. available to See supra, Note, Scrutiny, at 1157. biased. Sherman Act curate or See argued encourage fraudulent claims. It also will relationship believe, however, that there is between do not an We inevitable Commission, dishonesty. Monopolies Mergers See (“The England Wales, supra, 24, of and n. at 32-33 Services Solicitors required high profession of the temptation depart to from the standards likely to exists, that would be no doubt but we do believe solicitors frequently merely by easily reason of it mоre or more succumb to profession advertising; supposed of the traditions of contamination strong responsibility are in our view too of of its members sense laymen likely lawyers happen”). and dishonest for this to Unethical advertising appropriate though on exist. The meet even restrictions to problem alone, not a to that response to fraud is a sanction addressed unduly legitimate activity. a burdens sanction 376 barratry. See, of suggestion even a repose. There is

societal Against Solicita- Analysis A of Rules g., Comment, Critical e. (1958). 675-676 674, 25 L. by Lawyers, Chi. Rev. tion U. source unmitigated by attorneys is not an advertising But great may offer It justice. harm to the administration the use increase Although might benefits. it is the notion accept machinery, we cannot

judicial to silently than wrong always person a to a better for suffer “the acknowledges, bar by legal redress action.32 As it or served being our is not reached population middle 70% Hand- ABA, Revised profession.” adequately Among the (1972).33 2 Services Prepaid Legal book and an cost, is fear reasons for this underutilization supra. nn. 23, a 22 inability lawyer. to locate suitable See problem: help acknowledged Advertising can to solve free-market is the mechanism Advertising traditional purchaser of economy inform supplier potential for a rule at exchange. disciplinary The availability terms services, par- likely issue served to burden has access 32 recognized view. has Decided cases reinforce this The Court often activity meaningful to the that collective undertaken obtain access Transporta protected under the See United courts -First Amendment. Michigan Bar, 576, (1971); tion Union v. 401 U. S. Mine Workers v. 585 Assn., 217, (1967); Illinois Bar U. Trainmen v. 389 S. 222-224 Railroad 415, 1, Button, Bar, (1964); 377 U. S. NAACP v. 371 U. S. 438- these if a It would difficult to understand cases lawsuit Underlying viewed them was the were somehow as an evil itself. aggrieved regarding information Court’s concern receive their legal rights effectuating applies the means This them. concern groups. aggrieved at least as much force to individuals as does survey The ABA discussed in n. 23 indicates that of the adult 35.8% attorney population never visited an another has visited has an 27.9% attorney only Alternatives, suprа, at 12. P. once. n. See also Mur Walkowski, phy Compilation Prepaid & S. Legal Reference Materials on (1973); Meserve, Forgotten Average American, Services Our Client: (1971). Appellee prob 57 A. B. A. J. 1092 concedes the existence lem, argues but offers an Brief unfortunate solution. Appellee 54M56. A unknowledgeable. not-quite-poor and the

ticularly with be in accord advertising would allowing rule restrained process intelligent of “facilitate obligation the bar’s to fully making services lawyers, legal and to assist selection of Responsibility EC 2-1 ABA of Professional Code available.” (1976). is Advertising. Economic It The Undesirable Effects of the overhead costs will increase

claimed along passed then will be and that these costs profession, is Moreover, form fees. in the of increased to consumers will create a sub- practice cost of the additional claimed that young attor- deterring preventing entry barrier, stantial entrenching posi- the market and neys penetrating from established of the bar’s members. tion dis- best. Neither arguments seem dubious at These two Pharmacy Board Virginia lawyers others, from see tinguishes neither Council, S., at 425 U. Virginia Consumer v. adver- The ban on the First Amendment. relevant to appears lowest difficulty discovering to increase the serves tising extent ability. to this result, As a acceptable seller cost to incentive and the competition, from attorneys are isolated it is true Although reduced. competitively is price not been price services has advertising on the effect prod- regard revealing evidence there demonstrated, advertising, price the benefit of have where consumers ucts; they would be dramatically than lower often are prices retail entirely possible advertising.34 It without services the cost advance, reduce, will serve the consumer.35 Eyeglasses, 15 Advertising the Price of Benham, The Effect of See Advertising and Com (1972); Cady, J. Restricted Econ. 337 Law &

J. Pharmacy Drugs See also of Retail The Case petition: Board, Council, (noting S., 754, and n. Virginia Consumer 425 U. city). up in one drug prices of variation 1200% attorney’s hand, advertising overhead increase an does one On the public, by the services light of the underutilization costs, and, in entry-barrier argument The unpersuasive. is In equally the absence of advertising, attorney rely an on must his con- community tacts with the generate to a flow of business. view of the necessary time develop to such contacts, ban in fact to perpetuate serves position market of established attorneys. of entry-barrier Consideration would problems urge that be allowed so com- advertising as to aid the new petitor in penetrating the market. The

5. Adverse Advertising Quality on the Effect of of Service. It is argued attorney may given that the advertise a “package” of service at a set inclined to price, and will be by provide, use, indiscriminate package regard- the standard less of whether it 'fits client’s needs. way

Restraints on advertising, are an ineffective however, deterring shoddy An attorney work. inclined who is to quality cut will regardless advertising. do so rule on And the advertisement a standardized fee does not nec- essarily mean undesirably offered are services standardized. Indeed, attorney the assertion that an who quality substantially advertises a standard fee will cut is by of appellee’s pre- undermined the fixed-fee schedule own paid Legal Program. Services Even if advertising leads to the supra, may 33, substantially it see n. increase the demand for services. price Both tend these factors will to increase services. On the hand, tendency advertising competition might to other enhance be attorneys expected produce pressures to on reduce The net effect fees. competing significant, of these influences is hard to deem it estimate. We however, organizations urging that consumer have filed briefs as amici advertising that, despite the restriction be lifted. And we on note as well might price the fact that occasion increase the consumer pay,. competition through advertising ordinarily must the desired norm. by drop, Even if fees it no means causes clear that a lawyers loss of income The will result. increased volume business generated by advertising might compensate more than for the reduced profit per Frierson, Legal Advertising, (Winter 6, case. See Barrister 1975); Wilson, Avenue, Bar, Meеt Madison A. B. A. J. “legal appellants’

creation of clinics” like that of —clinics emphasize procedures standardized problems- routine is—-it possible by that such clinics improve reducing will service likelihood of error. argued it is Finally, Difficulties of Enforcement. the wholesale justified by problems restriction is any

enforcement if other course is Because the taken. sophistication lacks in legal particularly matters, susceptible misleading deceptive advertising by lawyers. After-the-fact action the consumer lured such advertis- ing may provide not a realistic the inabil- restraint because of ity layman to assess whether the service he has received professional vigilance regu- ‍‌‌​​​‌‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​‌‌‌​​​​‌​​‌​‌‌​​​​‍meets standards. a Thus, latory numerous agency required. will be But because of the purveyors overseeing advertising will be services, burdensome.

It incongruous opponents is at least somewhat for the legal pro- to extol the virtues and altruism of the its mem- point, and, another, fession at one at to assert that opportunity mislead and distort. We bers will seize the lawyers will behave as suspect that, with most advertising, always will abide their solemn oaths they They have-: profession and integrity and honor of their uphold through every attorney who system. For overreaches be can- of others who will there will be thousands advertising, it will straightforward. And, course, did and honest in other cases of misconduct interest, as in the latter’s be their weeding out those few who abuse bar, to assist trust. any proffered persuaded not

In we are sum, for the acceptable reason an rise the level justifications attorneys. of all suppression C showing speech, restraint on involving a case In the usual unconstitutionally suppress rule served challenged 380 analysis. would end our the First

speech Amendment context, permitted overly the Court has attacks on broad requiring person without making statutes the attack specific protected. demonstrate that conduct was fact his See, Bigelow Gooding g., Virginia, 815-816; e. v. 421 atS.,U. Wilson, Dombrowski v. 518, (1972); 405 U. 521-522 S. Pfister, 380 479, (1965). Having U. S. 486 shown that disciplinary protected appellants rule interferes with speech, ordinarily expect could to benefit оf the nature of regardless their acts. however,

The First doctrine, Amendment overbreadth represents departure rule that a from the traditional person may challenge ground a statute on the might applied unconstitutionally in circumstances other g., than before Broadrick v. See, those the court. e. Oklahoma, Raines, United States v. 601, (1973); U. S. A, 288, TV (1960); 297 U. S. U. S. Ashwander v. (1936) concurring). The reason for (Brandeis, J., An special apparent: over- rule First Amendment cases speech. chill First might protected broad statute serve to person who fragile interests, Amendment interests are and a by the discouraged contemplates protected activity might Button, 371 NAACP v. terrorem effect of the statute. See might choose person such a 415, Indeed, U. S. priv uncertainty his claim of whether speak not to because use of overbreadth challenged. if ilege prevail would to harm possible that analysis conclusion reflects the go unpunished speech to unprotected society allowing from will protected speech possibility outweighed is be muted. anal- of overbreadth application for the justification

But the ordinary commercial in the all, if at weakly, ysis applies Pharmacy Board acknowledged As was context. there 24, at 771 Council, S., 425 U. n. Virginia Consumer v. are “commonsense differences” between speech commercial and other varieties. id., See also at 775-781 (concurring opin- ion). Since advertising is linked to commercial it well-being, unlikely seems that such speech is particularly susceptible to being crushed by regulation. id., overbroad 771-772, See at n. Moreover, concerns for uncertainty in determining the scope protection are reduced; the advertiser seeks dis- seminate information about product a or service that he pro- vides, and presumably he can readily determine more than others whether his speech is truthful protected. Ibid. Since overbreadth has been “strong described this Court as medicine,” which “has employed only been . . sparingly . resort,” as a last Broadrick v. at Oklahoma, S., U. we apply decline to it professional advertising, context necessary where is not further objective. it intended its Bigelow Virginia, Cf. 817-818. S.,U. at Is, then, appellants’ scope of basic advertisement outside the general First Amendment from claims as protection? Aside undesirability any advertising by to the a matter attorneys, appellee argues appellants’ considered advertise- above, particu- is and hence three misleading, unprotected, ment “legal clinic,” to a (a) lars: the advertisement makes reference claims that allegedly term; (b) undefined the advertisement an prices, “very and, offer services at reasonable” appellants uncontested the advertised regard divorce, least with to an does not (c) the advertisement bargain; price change name he obtain a the consumer that inform Arg. 56-57. attorney. of Oral of an Tr. without the services suspect We unpersuasive. assertions record, these On this “legal the term readily understand would refer all—to on the term at focused indeed, if, clinic”— geared appellants’ like that operation to an in his multiple fact, services. standardized provide Bar of Arizona observed of the State president the deposition “exploring ways the bar the there was a committee concept properly developed.” clinic can be in which the id., id., (testimony at 401. also at 84-85 App. 375; see See concept profession And clinical in the sister appellants). publicly acknowledged and surely by now is medicine understood. counsel divorce, appellee’s an

As to the cost of uncontested $150 $300 from at this runs argument stated oral a fee of .Appellants Tr. advertised area. of Oral 58. Arg. “very reason- a seems plus filing-fee, $20 court rate that $175 customary Appellee’s own light charge. Legal able” at rate for uncontested divorce Program sets the an Services permit will com- App. course, $250. Of thus if the rates among of rates parison competitors, revealing reasonable. argument As to that a name the final failure to disclose —the aid change accomplished be the client without might only legal services attorney an note that most need —we performed legally citizen himself. See ABA California, (1975); S. Code Faretta U. Responsibility EC 3-7 The record does Professional facts deter- not reveal some the relevant unambiguously such as how mining misleading, whether nondisclosure is provides complicated procedure is and whether State laymen. deposition of one how- assistance for appellant, change name ever, when he ascertained that a reflects he fre- only the correction a record required like, client to himself.36 quently change would send the effect App. 112. it has not been demonstrated that

We conclude suppressed. issue could be advertisement however, my job appellant, stated: to inform a 36 The same “[I]t’s lawyer employ he needn’t to handle his work.” prospective client that App. 112-113.

383 IY holding advertising by In attorneys may that sub- not be jected suppression, blanket the advertisement at issue is protected, we, course, advertising do not hold that by attorneys may any not regulated way. be mention We some clearly permissible limitations on not by our holding. foreclosed is

Advertising false, deceptive, misleading course subject Virginia Pharmacy restraint. See Board v. Council, Consumer S., 771-772, 425 at and n. 24. U. Since product advertiser his knows and has a interest commercial its worry we dissemination, regulation have little as- sure protected Id., truthfulness will 771- discourage speech. at 772, n. any 24. And truth- concern that requirements strict undesirably fulness will inapplicable inhibit seems spontaneity because speech commercial generally Indeed, is calculated. public private speech benefits from derive commercial 1 from confidence in accuracy reliability. its Thus, leeway for untruthful or misleading expression that has been allowed other little force in the contexts has Welch, Compare Inc., commercial arena. Gertz v. Robert (1974), Connecticut, 339-341 323, U. S. and Cantwell v. S., 310, Co., 310 U. NLRB Packing Gissel S., v. U. at 618. because the fact, sophistication lacks concerning legal might be over- services, misstatements looked or unimportant may deemed in other advertising be found quite inappropriate advertising.37 For example, quality claims as to services—a matter we not do address not today susceptible of measurement or —are verification; accordingly, likely such claims so to be be requires an misleading The determination whether advertisement FTC, legal sophistication Cf. Feil consideration its audience. (CA9 1960). Thus, degrees regulation may 285 F. 2d different appropriate in different be areas. objections restriction.

misleading warrant Similar do might justify solicitation. We in-person restraints possibility supplementation, foreclose that some limited by way might required or the warning like, or disclaimer upon today' so of even an kind ruled advertisement recog- sum, that the consumer is not misled. we assure boundary many defining that in be- problems nize advertising remain be deceptive nondeceptive tween role expect special and we the bar will have resolved, attorneys flows both play assuring cleanly. freely and well

As with other varieties of it follows as speech, place, restrictions on there be reasonable the time, Pharmacy Vir advertising. manner of Board v. See Council, Advertising con ginia S., Consumer U. obviously may cerning illegal transactions that themselves Pittsburgh Press Human Relations suppressed. be See Co. v. Comm’n, (1973). prob And the special 413 U. S. media will lems of electronic broadcast Broadcasting Capital Co. special warrant consideration. Cf. sub Supp. (DC summarily aff’d Mitchell, 1971), v. 333 F. y General, Capital Broadcasting Acting Co. nom. Attorne 405 U. S. 1000 only

The constitutional issue this case is whether appel- publication newspaper may prevent State availability concerning the lants’ truthful advertisement simply flow terms routine services. We rule may not and we therefore restrained, of such information disciplinary against rule application present hold the' First Amendment. to be violative of appellants Supreme Court of is therefore judgment Arizona part. reversed in part affirmed

It is so ordered. APPENDIX TO OPINION OF THE COURT concurring part in Burger, Justice Chief Mr. part. in

dissenting with Mr. agreement in general Powell’s am I Justice I opinion. particu- II Court’s with Part analysis “today’s statement that larly agree Powell’s Mr. Justice of law.” in profound changes practice decision will effect changes Although effect of those Post, the exaсt at 389. injurious they I will known, be fear cannot now designed to advertising was legal ban on those whom the of legal need protect general members —the services. apparently believe the Court

Some Members year ago present holding our one controlled case Council, 425 Virginia Consumer Pharmacy Board v. I made that we (1976). However, thought had U. S. our rested on fact that explicit holding there most standardized, name-brand prepackaged, advertisement Id., context, was at issue. at 773 n. 25. drugs useful prohibition price which had served a advertising, medicines, days individually compounded function it birth. was no tied to conditions which longer given had respect which, same cannot be said with services I Indeed, vary must from case to case. necessity, greatly identify find if not difficult, impossible, categories problems For exam- fungible or services which are nature. ple, persuasively demonstrates Justice Powell Mr. can be

fallacy any notion that even an uncontested divorce Post, charge” A “standard.” at 392-394. “reasonable appellants such could be wish to adver- $195, a divorce as the tise, reasonably great more, depending or it could be deal any prop- alimony, such variables as child custody, support, erty legal ever, services can if rarely, settlement. Because rarely know in potential “standardized” and because clients price advertising do in fact they need, advance what services picture to base' public can an accurate on which give never attorney. Indeed, its of an the context of selection such incomplete information could be worse than no services, information at It could trap all.1 unwary. become a

The Court’s opinion largely disregards these on the facts unsupported assumptions attorneys will not advertise anything “routine” totally but services—which fails Court to identify or or, if do they the bar advertise, that define— the courts protect will be able to public from few those practitioners who abuse their trust. The former notion is speculative highly and, does nothing course, solve problems that this will decision create; latter, existing machinery administrаtive of both profession and proved wholly courts has inadequate police profes- effectively. sion ABA Special See On Evaluation Committee of Disciplinary Enforcement, Problems Recommendations in Disciplinary Enforcement To impose the enormous new regulatory burdens called for the Court’s decision on the deficient machinery of presently the bar and courts is unreal- istic; predictable it almost problems will create unmanageable proportions. The thus Court a “great takes leap” into an unexplored, regulatory sensitive area where the profession and the courts yet have not crawl, learned to let alone up stand or walk. In my there is no need for view, hasty plunge problem into a not even the wisest of where experts experts such exist—can move with sure steps. —if express no view on Mr. Justice Powell’s

1 1 conclusion that the adver attorney’s tisement of an initial hourly consultation fee or his rate would inherently misleading not be permitted thus should be since I cannot why understand “initial charge an consultation” should have different hourly Post, from base an study rate. prob 399-400. Careful attorney yet lems none has been well —and made — reveal that carry advertisements limited to such matters do -with them potential accompanies for abuse that par the advertisement of fees for ticular However, services. even such advertisements limited should not be permitted a disclaimer which without informs the the fee charged any particular depend vary case will on and according to the individual circumstances of that case. See ABA Code of Professional Responsibility (B) (1976). DR 2-106

388 information attor- sure, public concerning the needs

To be time, public their fees. At the same the neys, work, their incompetent or unscrupulous from the protection needs the seems, It to practitioner anxious to uninformed. prey the by permitting me can best goals that these twin be served which organized experiment perfect programs bar with to range of public probable would to the fees announce putative some specifically services and thus clients givе defined liability potential idea of cost out assist- seeking when programs ance.2 should be confined However, such even g., truly uncon- the known and “routine” knowable, e. any dispute over tested which defined to divorce exclude custody support, and should property rights, alimony, child any public charged make clear the actual fee vary case will to the individual circumstances given according DR 2- Responsibility ABA Professional involved, see Code of expectations (B) in order to insure that (1976), unduly any reform Accompanying clients are inflated. pro- type this must be administrative nature some effective complaints the grievances cedure to hear and resolve disappointed clients. ap- profession past

Unfortunately, has with too proached protection for the solutions result, has been caution, and, much as too little progress post, at However, points out, made. as Powell Mr. Justice recently some reforms 398-399, organized bar has made offing. Rather appear be in the sensitive area and more today opts Court allowing fruit, than these efforts to bear only breed I will for a “solution” which believe Draconian more resolve. problems than can conceivably would organized bar publication such information Bar, holding State create conflict our no Goldfarb charge obligation (1975), long attorneys U. S. under no so were range within the of fees described. Powell, Justice with whom Justice Stewart

Mr. Mr. joins, concurring part dissenting part.

I agree with the appellants’ Court that Sherman claim Act is barred the Parker v. Brown, exemp- 341 (1943), U. S. join tion and II therefore opinion. Part the Court’s But I join cannot the Court’s holding that under the First Amend- ment “truthful” newspaper advertising lawyer’s prices legal “routine services” Ante, not be restrained. at 384. Although appears the Court to note (men- some reservations tioned it is clear that within below), today’s undefined limits decision will effect profound practice in the changes law, viewed for centuries profession. as a learned supervisory The power of the courts over members of the of the bar, -officers courts, authority respective States to oversee regulation profession have been weakened. Al- though the opinion professes Court’s narrowly, to be framed subject and its reach is holding to future clarification, explicit expansive respect to the undefined my “routine services.” view, result required by neither the First nor Amendment, interest.

I placed young Bar, two members of the Arizona Appellants, for the newspaper apparently in a Phoenix an advertisement on validity of Arizona’s ban purpose testing ante, reproduced at by attorneys. advertisement, services provided “legal appellants’ Clinic” “Legal stated following four identified the very fees,” reasonable price exact for each: services, indicating an (both (1) separation or legal Divorce —uncontested filing court fee. spouses sign plus $175 $20 papers): on and instructions (2) Preparation papers court all $100. your how to uncontested divorce: simple do own $225 proceeding: Adoption- severance (3) —-uncontested publication cost. plus approximately $10 proceed- contested Bankruptcy non-business, no (4) — fee; filing wife plus $55 court ings $250 —individual: filing fee. plus $300 $110 husband: court filing court fee. (5) Change plus $95 $20 of Name — regarding also information The advertisement stated request. Since types other of cases would be furnished Disciplinary is conceded this advertisement violated Supreme (a) Rule 2-101 in Rule 29 (B), incorporated is whether question Court of before us Arizona,1 the to advertise- application appellants’ rule disciplinary ment violates First Amendment. in our recent finds of that question

The Court the resolution Virginia Virginia Consumer ‍‌‌​​​‌‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​‌‌‌​​​​‌​​‌​‌‌​​​​‍Pharmacy Board decision Council, In we un- case, 425 U. S. 748 that held under Amendments the First and Fourteenth constitutional unprofessional conduct for a declaring statute prescription pharmacist prices licensed to advertise the effect speech that commercial' to drugs. We concluded Y price” you drug “I X at the prescription will sell Amend- to the First protection was entitled certain under justifications were inade- proffered and found that ment, we advertising. But were quate support price to the ban on price dealing in with were that case careful to note we specifically product. The Court advertising of a standardized constitutionality regu- of state judgment to the reserved advertising respect professional services: price with lation of case considered in this stress we have “We by pharmacists. of commercial regulation opinion professions, no as to other Although express we profes- between distinctions, functional, and historical different factors. may require quite consideration sions, dispense for and do Physicians lawyers, example, ante, at reproduced rule disciplinary n. 1 The standardized services products; they professional render variety of almost infinite nature, consequent with the they enhanced for if possibility deception confusion and Id., advertising.” were undertake certain kinds (emphasis 773 n. in original).2 presents This case reserved, the issue so and the Court resolves assumption legal it on the that what it calls “routine” services essentially purposes no different for of First Amendment analysis prepackaged prescription drugs. from so holding, give the Court fails to appropriate weight the two funda- ways in professional mental which the services presents a different from issue that before the Court with respect tangible products: vastly potential increased deception difficulty regulation enhanced of effective interest.

A been long thought price advertising It has inevitably will misleading services because such services respect quality are individualized to content lay usually consumer because the services does not precise scope nature and of the services know advance Ante, finds requires. Although he at 372. the Court some “many reasoning recognizes in this and that services force attorneys by unique,” are indeed its first answer performed lawyers few “would optimistic expression hope of is the type.” prices could advertise fixed for services of Ibid. acknowledged in of the response Court’s basic view But the advertising “unique” of services is deceptive for potential range professional product immense divide the Virginia Pharmacy, emphasized Justice, concurring in also The Chief tangible professional products and services: between the distinction prescriptions roughly of all are filled with Court notes that “The 95% phar- already prepared by and dosage the manufacturer sold the units 'prepackaged items, dispensing phar- In the macy these in that form. ... compounding rather than a function largely packaging a performs macist S., (emphasis original). in at 773-774 times.” 425 U. of former “routine.” “unique” and categories: lawyers into two one draws to how opinion the only insight afforded those similar finding the services this line is uncontested “the are routine: advertisement appellants’ bank- personal uncontested adoption, the divorce, simple the Ibid. What like.” and change name, the the ruptcy, But the indicated. like” embraces is phrase the “the flow words, in the must, such services Court’s advertising of Ante, freely cleanly.” “both and lawyers for which on the tasks

Even the briefest reflection they per- among the services the variation are trained and assumptions against facile form should caution unique. the into the routine services can be classified client for the impossible most situations —both accuracy advance identify with reasonable lawyer —to encountered may be problems that scope the nature routine. seems the outset a matter that at handling when even measurement qualitative nor quantitative Neither in advance.3 to be feasible likely needed service actually by appellants’ is well illustrated problem This definitional $195 divorces uncontested willingness to obtain advertised he if misled grievously A client can be potential each. eye depends beholder. on the are “routine” services What lawyer specialized has may quite who particular be routine to service A will, for provisions years. many The marital trust in that area for they may lawyer; experienced tax and estate example, are routine to lawyer. un litigation what the wholly negligence And be alien to predicted. simply be may routine cannot sophisticated think is client service, understanding as to Absent even a minimal common required, actually given unpredictability in what advance of meeting lawyer prospective will have no client often customarily widely tangible products Although the minds. advertised prospective majority vary many respects, vast of cases at least comparative preliminary purchasers product make a know the and can lawyer doing judgment price. But based not even required extent services in advance the nature and can know desig comparisons responds the advertisement. Price of to client who therefore, likely services, are more to than to inform. nated mislead reads the advertised embracing service as all of possible his A problems needs. of are implicated by They host divorce. alimony; support include and children; maintenance for child custody; rights; visitation com life insurance, interests munity tax property, refunds, liabilities; and tax and the disposition of other property rights.4 processing of papers apparently provide court only appellants service — usually $100 the most and least de straightforward —is manding lawyer’s divorce aspect responsibility important viewpoint More from of client is case. diagnostic advisory function: of relevant pursuit and unaware, client be inquiries which the would otherwise arrangements that respect advice with to alternative and other marriage or prevent irreparable dissolution of the might profes Although those problem.5 client’s wise resolve the applicable for many problems are not argued that these It invariably true, even This is no means means. couples of modest ques maintenance, property alimony, support respect to sensitive certainly respect to more it true with And is not tions. rights. custody problems and visitation of child desire seeking as to divorce percentage couples high A counsel They initially describe themselves be uncontested. often it they mutually agreed separate; want a people civilized who have counsel alimony. experienced But without quiet, out-of-court divorce spirit amity quickly when col fades initial often knows that explored. Indeed, scrupulous counsel— carefully problems lateral аre parties separate have counsel insist except in the rare case—will protected each, children,' ade rights and those assure lawyer performed his duties of quately. short, until first has usually to know whether rights, impossible diagnosis and advice as Mark Harrison President be an uncontested divorce. As there can will Bar Arizona testified: State response you lucky get three come in suppose can have clients “I children; property; no no who have no real [appellants’ advertisement] divorce, you disagreement, can such an uncontested real handle prestated price. job [pre] determined, . . proper do for a . special you advance, what can’t know in inherent vice [is] “[T]he sional functions are appellants’ not within packaged included they routine divorce, frequently fall within of concept the “advice” with lay person which the properly is concerned when he or seeks she counsel. average lay person The simply has no feeling for which are services included packaged and divorce, capacity thus no judge the nature of product.6 the advertised As result, type a of adver tisement inescapably before us many respond will mislead who to it. In the it will end, promote lawyers distrust and disrespect system for our justice. own specified services a price at fixed only infirmity not Ap- at advertisement issue.7 pellants also assert that “very these services are offered at reasonable fees.” That finds this to be accurate Court an statement since the advertised fee fell at end of the lower range customary charges. customarily But fee charged in locality for similar services never been has considered the sole determinant of the of a reasonableness This fee.8 is because quan- reasonableness reflects both the problems you the client who present, sees advertisement will and if are predetermined price you bound to a going . . . sooner or later to have inevitably quality you App. sacrifice the of service are able to render.” 378-380. complications Similar adoption surround the uncontested and the sim ple bankruptcy. any Use of unusual, the term “clinic” describe firm a law size is possibly ambiguous generally meaning view of its understood profession. Appellants the medical justified by plan defend its use as their provide prices through employ standardized services at low ment equipment paralegals. nothing automatic But there novel or unusual about the use law equipment, firms of automatic paralegals, techniques serving and other modern for clients lower cost. appellants Nor are a They private service law firm. are in practice, though primarily their is directed to clients with family incomes $25,000, appellants of less than prac do limit their Id., tice to this income level. at 82. example, For the American Bar Association’s Code of Professional Responsibility specifies guides actors to be considered as in deter- “[f] A tity quality $195 may service. fee be reasonable for one divorce and unreasonable another; $195 fee charged reasonable when an experienced divorce lawyer charged by and unreasonable when recent law graduate. readily apparent, school For that are not reasons today discriminating more approach Court discards the which profession the used to reasonableness long judge has the of fee, and approach substitutes an based on market aver- ages. “very Whether fee is reasonable” a matter not a and matter as the Court opinion, of verifiable fact suggests. One unfortunate result of is that today’s decision lawyers may feel variety adjectives free to use a wide —such “fair,” “moderate,” “low-cost,” or town” —to “lowest in bargain describe the the they public. offer to

B accept legal Even if one were the some view that sufficiently possibility routine to services minimize the there nonetheless remains a enforcement deception, serious problem. recognize The problems. Court does some It notes “other that misstatements be immaterial adver- may mining (B) (1976). the reasonableness of a fee . . .” DR 2-106 These . include:

“(1) required, novelty difficulty the The time and labor and the requisite questions involved, perform and the skill service properly.

“(2) likelihood, acceptance apparent client, if to the The particular employment preclude by lawyer. employment will other customarily “(3) charged locality The fee for similar services.

“(4) The amount involved and the results obtained. by “(5) by imposed The time limitations the client or the circumstances. professional “(6) length relationship The nature client.

“(7) ability lawyer experience, reputation, lawyers or performing the service. “ (8) contingent.” fee is fixed or Whether the legal advertising” may quite inappropriate be found tising concerning public sophistication “the lacks precisely because Ante, recognizes also that “adver- legal services.” 383. It at suscepti- . . are tising quality claims as to the services . “may be or of measurement verification” therefore ble Ante, at restriction.” likely misleading so to be as to warrant defining recognizing problems 383-384. After remain in nondeceptive advertising, boundary deceptive between to have expected then Court observes that the bar attor- special play assuring role “a Ante, freely cleanly.” neys flows both seriously over- difficulties, and The Court understates agency capabilities any of the bar —or indeed estimates degree of assure with a reasonable private —to same time can at price advertising effectiveness that Ibid. There are some unrestrained and truthful. be both country. They have been licensed lawyers in 400,000 operat- bars within the organized and the States, States — acting pur- courts highest approved under codes ing respon- primary had the statutory authority to suant —have ethics professional sibility assuring compliance for disciplinary pro- been means have The traditional standards. sub- voluntary bar committees initially by conducted ceedings pro- sheer size of the view of the ject judicial review. to jurisdictions, and multiplicity of of a fession, the existence standards of ethical in the maintenance inherent problems problem traditions, with established profession even of a proved to be country in this has disciplinаry enforcement Special Committee extremely generally ABA, difficult. See Problems and Disciplinary Enforcement, on Evaluation of Disciplinary Enforcement Recommendations assumption casual that its authorization Court’s almost The policed effectively by the bar advertising can price mag- striking underappreciation nature and reflects a nitude of disciplinary problem. very reasons that price tend to make inherently of services decep- tive wholly make its policing impractical. With respect commercial advertising, concurring Stewart, Mr. Justice Pharmacy, noted that since “the factual claims contained in commercial price product or advertisements tangible relate to goods services, they be tested (cid:127) empirically and corrected to reflect the S., truth.” 425 U. But there simply way is no “empirically” to test the claims made in appellants' advertisement of serv- ices. There are serious in determining difficulties whether the advertised services fall within the Court’s undefined category of they “routine services”; whether are described accurately and understandably; appellants’ whether claim as to reasonableness of the fees is accurate. These questions factual which answers; for there are “truthful” instances, relatively most the answers would turn on subjective judgments which could there be wide opinion. differences of These appellants’ difficulties with will in any comparable price advertisement inhere advertise- of specific legal ment services. if public agencies Even were professional established oversee price adequate advertising, protection from lawyers and of deception, ethical from unfair prove could wholly to be a intractable competition, problem.

II emphasizes The Court need information will persons desiring legal assist lawyers. services choose Under system, advertising our economic is the com- most monly used useful means of providing and information as goods to and other but services, generally has not been respect legal with to and used certain other professional controlling weight Until today, given services. been has to danger general advertising of such services too often rather tend to mislead than would inform. there Moreover, been the has further concern characteristics thought legal profession society beneficial code of —a professional professional ethics, an sense of imbued responsibility, self-discipline, tradition and duties as if officers courts —would suffer the restraints on adver- tising significantly were diluted. against proscription

Pressures toward some relaxation years gained in with general advertising have force recent difficulty low- and middle- the increased recognition finding willing in counsel serve experience income citizens problem has prices. The of this at reasonable seriousness At bar. both by organized been overlooked need addressed the the bar has national and state levels, variety in a availability legal services expanding the for increasingly (i) group legal plans, service ways, including: associations; (ii) trade by unions, cooperatives, used by bars; (iii) lawyer plans local and state operated referral firms; service law bar-sponsored clinics; (iv) public legal plans. Notable service group prepaid insurance or (v) pro- past been over the two decades progress has made insig- charged with crime. Not indigents counsel for viding bar-sponsored through progress nificant also has been made Legal Services legal and, recently, aid more the Federal cases. indigents in civil Corporation providing counsel has been profession recognizes that less success But pay can afford to assuring persons who achieved willing lawyers competent fees have access modest represent them.9 initiation of major was taken in 1965 step A forward fully Opportunity, program program of the Office Economic services program services by American Bar Association. supported by Corporation, Legal the Federal Services created now administered availability of profession to broaden the Congress Efforts gained persons low- middle-income lеvels also legal services to in 1965. momentum

Study experimentation Following continue. a series in hearings of the American Bar Association amended Code of Responsibility its Professional to broaden the infor- mation, lawyer may when allowed state law, that a provide in approved advertising. means of DR 2-102 customary published addition to the data direc- tories, regulation publication the amended authorizes lawyer’s fee for an initial fact that other consultation, fee on specific willing- information is available and the request, attorney of accept ness to credit or other credit ar- cards rangements. regulation approves placement The of such telephone directories, advertisements the classified section of customary in the law lists and and also directories, other lawyers prepared of consumer directories groups. nothing I observes, and there agree,

The Court of the cost misleading in the of inherently advertisement limit the fee I would Indeed, consultation. an initial Although the skill the initial conference. to information any negate widely lawyers vary as to so experience lawyers, by different hours of service between equivalence lawyers are licensed by duly service quality variations purpose least for at Lawyers operate, inevitable. specified basis on the accounting, control internal case— appropriate in an request upon hourly rates, —or such employment willing undertake lawyers are most appropriate in an rates, these advertisement rates. misleading necessarily be would not duly designated, medium, charge clear the total made also information fee if this hours number of on the depend would representation predict. difficult variable problem client’s devoted —a limited advertisement content price Where client’s to the devoted hour per rate item finite misleading is consider- deceiving or likelihood problem, a ably specific than are advertised at when services less price. fixed

Ill holding I Court’s disagree strongly with the Although I un- believe price as to of undefined —and advеrtisements in there are reservations services, definable —routine may serve to opinion worthy emphasis they since its of has narrow ultimate notes that it First, its reach. Court problems “the with adver- peculiar not addressed associated Ante, tising quality to the of services.” relating claims any quality of almost questions at 366. are inherent in There I type of do not view price advertising lawyers, impli- appellants’ quality free from entirely advertisement as respect cations. in this Nevertheless the Court’s reservation could limiting be a factor. again notes Virginia Pharmacy, in the Court

Second, as time, place, on the there reasonable restrictions my price advertising. and manner of commercial view, significantly have broader reach such should a restrictions standardized professional with to than as to respect services important recognized the products. long This has Court advertising. professional regulation state interests Board, (1963); 374 424 William Head New Mexico S. v. U. v. Dental Co., (1955); 483 Semler Optical son v. Lee 348 U. S. Examiners, (1935).10 U. 608 And as to lawyers, S. process issue Although Semler v. Dental Examiners involved a due challenge, the distinction drawn in than a First Amendment rather professional and commodities is the advertisement services case between Court, writing Hughes, Mr. Chief Justice stated: highly relevant. authority State the baleful to estimate “We not doubt do legislature put stop a The was methods and to them. effects such commodities, dealing but with the vital interest of traders with treating demanding profession bodily health, ills and from which are in the conduct those traditional different standards community place. competition market is concerned with the professional only standards which will insure not com- maintenance recently Court noted that interest has States "[t]he regulating lawyers especially great lawyers since primary governmental essential function of administer ” 11 ing justice, historically and have been 'officers of the courts.’ Bar, State U. S. Goldfarb Although opinion today finds these insufficient interests justify prohibition price of all advertising, the state inter recognized ests in these cases should be weighed carefully peteney practitioners, protection against in individual but would those who prey upon public peculiarly susceptible imposition through alluring promises physical community pro- relief. And the is concerned viding safeguards only against against deception, practices not but which profession by forcing would tend to demoralize the its members into an unseemly rivalry enlarge which opportunities would the of the least scrupulous. generally profession isWhat called the ‘ethics’ of the is but expert opinion necessity the consensus of as to the of such standards.” S., at 612. U. distinction, specifically This advertising, ques- addressed to has never been today. Indeed, recently tioned until Court Sender was cited with approval Bar, in State 421 U. 792-793 S. Goldfarb opinion The Court’s is not without an of undertone of criticism lawyers legal profession and opposition price advertising: the for their to g., (i) profession e. “condoning the reference the the the actions of attorney who structures his provide social or civic associations as to con so potential clients,” ante, tacts with 371; (ii) at implication the opposition lawyers derives from the view “belittle person the living by who earns his strength the of his arm” and ante, trade,” “somehow ‘above’ at 371-372. This indiscriminate [are] unjustified. Lawyers criticism is society are not hermits would they legal customarily suffer if were. profession Members of the in civic, charitable, cultural, political are leaders life of most com Indeed, professional responsibility lawyers thought munities. of is duty public participation. profession, include civic and As a lawyers callings. do differ from other is conceit, “This not a fancied but tradition, preservation a cherished lawyer’s is of which essential to the calling.” Drinker, reverence for Legal (1963) (footnote his H. Ethics 211 omitted). certainly pride There profession can be in one’s without belittling perform those who other society. tasks essential to an ongoing place, apy consideration manner time, future restrictions.12 pos- “foreclose the

Finally, opinion the Court’s does not warning sibility supplementation, limited way some might be of even an ad- like, required disclaimer or the or upon today the kind as to assure vertisement of ruled so Ante, I view this that the consumer is misled.” potential deception recognition as at least some services. fixed-price advertising specific inherent of other state- though ambiguous fight This recognition, encouragement opinion, may ments viewed as price I if those who believe —as are to have we do—that require will services, advertisement interest particularized the most regulation.

IV until has, The area into which Court now ventures profession self-regulation by the today, largely been left to of conduct within the framework of canons standards where prescribed by respective enforced States and the courts. clients necessary by problem bringing lawyers together mutually basis, on a fair consistent public interest, itself. It profession as old as the of especially of in view complexity, one considerable constantly evolving services. nature of the need problem complete The not been satisfaction has resolved bar by organized the despite diligent thoughtful and efforts no many years, period others over a of and there and only advertising, speaks specifically newspaper The Court of but today’s principled that basis to clear decision be on a cannot confined price be newspapers. advertisements in can be drawn No distinction newspapers spectrum and a broad of other means —for tween rather magazines, signs subways, handbills, in example, posters, buses questions open time, place, But remain to mail circulations. as affecting media, such radio and manner restrictions other television. reason to believe today’s best answers will responsive to future needs. context, this the Court’s imposition of hard and fast

constitutional rules as price to advertising is neither required by precedent likely nor to public serve the interest. One great the virtues of federalism is the opportunity it affords for experimentation and with freedom innovation, to discard or amend that which proves unsuccessful or detrimental to public the good. The constitutionalizing the affirma- —indeed tive encouraging competitive price advertising specified —of legal services will substantially experimentation inhibit underway has been and also will limit control heretofore lawyers exercised over by respective States.

I am apprehensive, despite the expressed Court’s intent proceed cautiously, today’s holding by will be viewed lawyers thousands of tens as an by public- invitation — spirited lawyers and the selfish engage competi- alike —to tive escalating may on an lawyers basis. Some gain temporary advantages; will others suffer from the eco- power stronger nomic deceit of lawyers, subtle scrupulous lawyers.13 may less Some members suggested It price advertising younger has been will benefit lawyers firms, public, enabling smaller as well as the them com pete favorably larger, more with the established firms. overtones suggestion principle. are antitrust rather than First Amendment in origin, seriously validity But whatever the there is reason to doubt the premise. increasing complexity legal practice, perhaps With strongest profession today specialization. trend is toward Many practice intensely areas; specialized small firms will limit their larger, likely variety depart firms institutionalized to have a ments, special each special devoted area of the law. The established large advantages ist and the law firm have that are if not inconsiderable price competition commonplace. They truthfully becomes can advertise they practice; they enjoy areas which economies of scale that justify prices; they possess lower power often the economic to dis advantage inexperienced any weaker or more firms will be many others risk is that but marginally, benefit serv- professional of by simplistic price victimized Virginia . . variety and nature . ices “almost infinite [in] today, Until Board, 773 n. 25. Pharmacy S., 425 U. thought was not it legal profession, long history marginal by the required public deception was this risk by the Court. asserted interests First Amendment part. dissenting Rehnquist, Me. Justice appel holding opinion I II join the Court’s Part Brown, Parker v. by the lants’ Act claim is barred Sherman for the Largely exemption. (1943), 317 U. state-action S. Board v. Pharmacy my dissent in reasons set forth how (1976), 748, 781 Virginia Consumer 425 U. S. Council, agree I I III cannot because dissent from Part ever, regulation by Arizona’s infringed First Amendment is services. essentially activity commercial v. Breard (1942); Chrestensen, Valentine 316 U. S. 52 v. Pittsburgh Press Co. Alexandria, (1951). See U. S. 622 ‍‌‌​​​‌‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​‌‌‌​​​​‌​​‌​‌‌​​​​‍Comm’n, Human Relations 413 U. S. speech Amendment

I the First to believe that continue sanctuary for Court as a long regarded provision, interest, or intellectual public importance expressions of goods protect advertisements by invocation to demeaned appellants’ simply I that the quite hold and services. would may be, truthful or reasonable advertisement, however adopted was the Amendment expression not the sort protect. demonstrates persuasively my think Brother Powell I that., little opinion very offers the Court’s opinion in his regula- state permissible or nature of as to extent guidance join I would and medicine. such as law professions tion of potential for increased concentration law competition. Whether larger firms would be detrimental to practice smaller number in a by the Court. addressed is not opinion took the except his that once the Court belief my Virginia Pharmacy step “slippery slope” first down the Board, supra, possibility of understandable and workable protected speech unprotected differentiations between speech in largely evaporated. the field of Once exception of speech protection commercial from the First Amendment which had been established Valentine Chrestensen, supra, abandoned, case-by-case was the shift to adjudication of First Amendment of advertisers was a claims predictable consequence. I agree my

While Powell the effect Brother today’s opinion professions on the is both unfortunate required by and not Amendments, the First and Fourteenth. I join implication opinion cannot in his that some forms constitutionally legal advertising may protected. constitutionally practi- distinction Valentine was sound step I cally workable, unwilling am still to take even one “slippery slope” away from it. down the I I II but join therefore of the Court’s opinion, Parts III judgment. from the dissent from Part

Case Details

Case Name: Bates v. State Bar of Arizona

Court Name: Supreme Court of the United States

Date Published: Oct 3, 1977

Citation: 433 U.S. 350

Docket Number: 76-316

Court Abbreviation: SCOTUS