Document Type

Article

Publication Date

1983

Abstract

In Bates v. State Bar of Arizona, a 1977 decision, the United States Supreme Court overturned the American Bar Association's (ABA) sixty-nine-year-old prohibition of advertising by lawyers. The Bates holding invalidated comprehensive bans on lawyer advertising but left unsettled the scope of permissible regulation. While the Bates Court found attorneys' price advertising to be protected speech under the first amendment, it also stated that false and misleading advertising could be prohibited. The majority expressly declined to consider the problems of advertising claims relating to the quality of legal services.

The organized bar's reaction to Bates has been hesitant and inconsistent. Two years after the decision, fifteen states still had not formulated new advertising standards. Although by the middle of 1982 bar associations in all states and in the District of Columbia had adopted rules allowing some promotional activities by lawyers, many of these new rules permit only print advertising of the name, address, and specialization of an attorney, and thus may be incompatible with the potentially broader scope of the Bates holding. In response to Bates, the ABA revised the Model Code of Professional Responsibility to permit limited advertising of the type specifically at issue in the case: simple publication by print or radio. It concurrently rejected a proposal that would have allowed all advertising that was not ‘false, fraudulent, and misleading.’ Subsequently, the ABA Commission on the Evaluation of Professional Standards, which was charged with revising the Model Code of Professional Responsibility, recommended the less restrictive rule to the ABA, which adopted it on August 2, 1983. It is as yet unclear to what extent state bar associations will follow the ABA's lead on the advertising issue.

Publication Citation

58 N.Y.U. L. Rev. 945 (1983).

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