ethics saved or a penny earned

8/3/2019 Ethics Saved or a Penny Earned

1/7

McNair Scholars Journal

Volume 1 | Issue 1 Article 3

1-1-1997

Ethics Saved or a Penny Earned: An ExploratoryDiscussion of Legal Advertising Bans

Kenya BurtonGrand Valley State University

Copyright 1997 by the authors. McNair Scholars Journal is reproduced electronically by ScholarWorks@GVSU. hp://scholarworks.gvsu.edu/

mcnair

Recommended CitationBurton, Kenya (1997) "Ethics Saved or a Penny Earned: An Exploratory Discussion of Legal Advertising Bans,"McNair ScholarsJournal: Vol. 1: Iss. 1, Article 3.Available at: hp://scholarworks.gvsu.edu/mcnair/vol1/iss1/3
http://scholarworks.gvsu.edu/mcnairhttp://scholarworks.gvsu.edu/mcnair/vol1http://scholarworks.gvsu.edu/mcnair/vol1/iss1http://scholarworks.gvsu.edu/mcnair/vol1/iss1/3http://scholarworks.gvsu.edu/mcnairhttp://scholarworks.gvsu.edu/mcnairhttp://scholarworks.gvsu.edu/mcnairhttp://scholarworks.gvsu.edu/mcnairhttp://scholarworks.gvsu.edu/mcnair/vol1/iss1/3http://scholarworks.gvsu.edu/mcnair/vol1/iss1http://scholarworks.gvsu.edu/mcnair/vol1http://scholarworks.gvsu.edu/mcnair


2/7

Ethics Saved or a Penny Earned:An Exploratory Discussion of Legal Advertising BansAbstractAdvert ising is a venue used to reachthe masses for many p roducts andservices. Whet he r it's the image of abasketba ll icon or a fami liar cartooncharacter, everyo ne is trying to mak ean impressionable th irty-seco ndniche that will pe rsuade the public toseek thei r product or se rvice.Yet , when there is a multitude ofadvertisers in one sector, the advertiseme nts can sudde nly change fromcatchy segue to annoying imag eryfor the consume r. Within the legalindustry, many lawye rs try to standout from the brigad e of attorneys byadvertising their talent to the publ ic.Unfortunately, it is the spirited fewthat use thea trical maneuvers thatseem to test the ethica l sensitivity ofsoc iety. Advertisements using bu siness cards that are reminiscent ofMonopoly's "get-out-of-jail-free" ca rds;medica l concerns; negative imageryof legal co unterparts; and toll-freetelephone assistance after an injuryhave sodd en the professional imageof the lega l profession.This research pro ject providesexamples of legal adve rtising frompast to present, and relevant courtdec isio ns th at both oppose anddefend a lawyers' right to market theirse rvices to the pub lic sector. Althoughlegal advertising is a nationa l controversy, this paper will direct its focuson how cu rre nt remedi es affect thelegal environment in Michigan .Part I of this review researches thelandma rk case Bates v. State Bar 0/Arizona, 433 U.s. 350 (1977), andits historical ruling that gave "constitution al protection to law firm marketing and ad vertisements" (A BAJournal, 1995).Part II focuses on the ge neral interest in legal advertising and mark etingthat is prevalent today, includingethical sensitivity and profession alimag e co ncerns.Part III examines recent court rulings that e ithe r defend or oppose cur-

rent marketing tactics. This sectionalso provides professional commentary on a recent case that affects thecurrent state of legal advert ising .Pa rt IV provides a conclusio n abou tthe future of lega l advertisements withthe introduction of advert ising bans,

and the effects on the legal consumer.Lastly, Part V is a personal conclusionon the research topic.PART 1: Bates v. State Baro fArizonaAmericans view legal adve rtiseme ntsin many ways. In the 1990s , legaladvertising is an everyday occurrencethat's proj ected to the masses in somemedi a form . Yet , with out the landmark Ba tes v. State Bar of Ariz onadecision, today's legal market ingtools wou ld be nonexistent.This sec tion provides a brief summary of Bates v. State Bar a /A rizona.Discussion in this section deals withce rta in relevant events proceeding thelawsuit, and the resulting aftermath ofthe lawsuit as those resul ts provide abasis for legal proclamations that areconside red customary today.In Bates, attorneys that were bothlicensed in the state of Arizona andmembers of the Arizo na State BarAssociation were cha rged with violating th e Sta te Supreme Court ofArizona's discip lina ry ru le that prohib its attorney advertising throughpublic media.'In 1976, John R. Bates and VanO'Steen adve rtised the services ofthei r legal clinic' to inform the publicof its se rvices and fees."This information was deemed neeessary by both partners in order tomaintain the clinic's ope rations.' Theadvertiseme nt was placed in theArizo na Republic, a Phoen ix newspaper. By listing ce rtain fees, and stating".. . legal se rvices offered at ve ry reasonab le fees, " the partners clearlyviolated Disc . Rule 2-101 (B)1: "Alawyer sha ll not publ icize himself orhis partner, o r associate, o r any other

Student: Kenya BurtonMentor: james \'Volter, Ph.D.

GVSU McNa;rSc!Jo[ars Jo" r //a[ VOLUME I. 1997


3/7

lawyer affiliate d with him or his firmas a lawyer thro ugh newspape r ormagazine adv ertisements, radio ortelevision an nounceme nts, disp layadvertiseme nts in the city or telephone directories , or othe r me ans ofcomm ercial publicity, nor sha ll heautho rize or permit othe rs to do so inhis behalf."The partn er s were then chargedwith a complaint filed by the Arizo naState Bar 's president. On ce the complaint wa s filed a hearing wa s heldbefor e the Spe cial Local Admin-istrative Committee.' The committeerecom men ded that the gro up be suspen ded fro m legal practice for no lessthan six mo nths . This recommendation wa s based on a challeng e by theoppo sing parties, not an attac k on thelegitimacy of the rule. Fur the r reviewby the Board of Govern ors of theArizona State Bar" recom mended asuspens ion from practice for bot hpartners. This recommenda tion wa smade final.The pa rtners then sought reviewof th e recom men dation? in the StateSupreme Cou rt of Arizon a . Thedefend ants argue d that the disciplinary rule violated articles 1 an d 2 ofthe Sherman Act" and infring ed upo ntheir First Amendment? righ ts.Th e Sta te Sup reme Cour t ofArizona rejected bo th of the defen da nts ' claims ." The State of Arizonacited that the rule wa s exempt fromthe She rma n Act by state-actionexemption of Parker v. Brown," 317U.S. 314 (1943) . The First Amen dment rights of the defen dants we renot vio lated according to the courtdue to past case s ." It wa s then heldtha t the plurality!' wa s based on passages in tho se opini ons tha t may bearspe cial circumstances to adv ertisingthe legal profession ."

The case wa s then appe aled to theU.S. Supr eme Court which affirme dthe decision, in pa rt, ba sed on theirrelevanc e to the Sherman Act. TheCourt reversed , however, the de cisionof irreleva ncy of co nstitutional rightsviolation, " sta ting that "the flow ofsuc h informa tion may not beres trained ...therefore holding thepresen t ap p lication of the disciplinary

12

rule aga ins t the appe llants to vio latethe First Amendment.By issuing such an opini on , adv ertising of the legal p rofession began.Yet, the issue of legal advertising andits effects on the legal p rofessionw ere conside red by the supremejudicial membe rs them selves. In hisdissen t, Mr. Justice Holhan , ev en wi thhis "perso nal dislike of the conc ept ofadvertisi ng by atto rneys ," stated:"...the information of what lawyerscha rge is im portant for pr ivate econom ic decisio ns by the public, bythose in need of legal services. Suchinformat ion is also helpful, per hap sindisp ensable , to th e formation of anintelligen t op in ion by the public onhow we ll the legal system is wo rkingan d whe the r it should be regulated oreven altered ..."!GThus, th e above op in ion reflects abenef it to tho se wi tho u t legal expertise or knowled ge to seek out th osewith legal intelligence . In to day 'sso ciety, ev en with its pu ns and negative views of legal ad vertiseme nts ,att o rneys are easily accessible .Accord ing to the spo kesperson forthe Grand Rap ids law office of DaleSprik and Associates, Bob Sprik ,"Advertising makes it ea sier for theclient to ac kno wledge our services.Our tradem ark (buffaloes) provides aqui ck re ferenc e to the public of se rvices that are offer ed.':"The adv erse effects of legal adv ertisements were focused on by theSup reme Court mem bers wh ile issuing their op inion. "Advertising is sa idto er ode the clien t 's trust in his attorney . On ce the client perceives thatthe atto rney is mo tivated out of pr ofit, his confidenc e that the atto rney isacting out of a commitment to theclients' we lfare is jeop ardi zed .':"In today 's world the image ofAmerican pe rsonal injur y attorneysas mo ne y-suc king leeches, and/o r

"snakes in the road '"? is not far fro mmajority op ini on. Rece nt pe rsonalinjury awards have many Americansqu estioning the necessity of somelawsuits ve rsus the ir benefit s to theattorney's earning potential.

Part II: From Necessity toProfessional DestructionPart II reviews in brief these advertising me thods and their professionalimpact. This se ction also provide s aprelude to the next sec tion by familiarizing the reade r with the negativereactions to one aspect of legal advertis ing, and its ult imate elimination.Bates b ro ugh t forth a revolution

no t only in the legal wo rld , bu t alsothe wo rld of advertising. Presen tingone 's legal services began to filte r tothe masses th ro ugh several met hodsof med ia adv ertising .Sinc e Bates, communica tion oflegal services has been intensified .From the controversial advertisementthat started it all to the w orldw ideWeb , the legal pr ofession has usedevery type of venue available to ma rket itself to the public. Thro ugh television, radio, newspapers, the Inter net ,solicitation, an d the age-old method ofreferral, the vast num ber of lawyersava ilable to one client has createdcompet itive marketing tactics , espe cially in the personal injury sec tor .Negative ad s that present fellowlawyers as clowns, handing ou t condoms to ma ritime clients that have aslogan stating: "This law firm savesse amen the old fashioned wa y ,"20 andsnappy commercial jingles have manylawyers worried ab out the profession 's image. From the da y th e rulingwas overturned, court justices wereconcerned ab out ad vertising 's impacton the profession.In an effort to address these concerns , the American Bar Association(ABA) has initiated a commission tofocus on methods that "ensure adv ertising that flows bo th free ly an d clean-ly.'?' Th e foremost issue addressedwa s that of moral suasion, whichincites members to have responsibility to the profession and them selves.Pr oclamations have subsequentlybeen made tha t strengthe n th e legalimage. Such tactics recommended toenact mora l suasion includ e community councils to monitor and commenton negative imagery, ABA professionalism codes, and award programs ."The ABA currently staffs a commission on advert ising that mo nitorsdevelop ments in legal advertising ,

Exploratory Discu ssion of Legal Advertising Bans


4/7

updates and informs both the publicand the profession, and researchesle ading issues that impact the legaladvertising environment. Its activitiesinclude an advertising clea ringhousethat hou ses a library containing information on legal advertising. The commission also sp onsors the Dignity inLawyer Advertising award.The ABA Dignity in LawyerAdvertising awa rd is one method ofpublicly and professiona lly recognizing "dignified and effective" legaladvertisements . The ABA also hasadopted "asp irational goa ls" to assistlawyers in producing digni fied andhigh-quality advertisements . Thesegoals include issu es such as conveying a positive message to the publicrelative to the profession , avoidinginapp ropriate marketing schemes thatstain the legal profession , and makingservices affordable to the public."Yet , des pite the efforts of the ABA,many still consider legal advertisementsa negative solicitation of the publi c.Beyond the impersonal world of massadve rt isement as so licitation is thecomplex area of personal so licitation.

There are many wa ys that person al solicitation can occur: chancemeeting in a public place , professional functions, phon e ca lls o r mail. Tomany this sco pe of legal advertising ismost annoying.A television or radio ad can be easily avoided by changing the channelor turning off the appliance completely. Newspaper ads can be shunned bynot reading them . An Internet site ischo se n by choice and a referral orsolicitation can be ignored . Yet , a pe rsona l petition through the mail canhappen uninvited .It is in the time of personalanguish that a lawyer can e ither beextremely hel pful or harassing. Forthose wh o are oblivious to the legalities, or lack of same , pertaining to anacc ide nt (when one is victimized),hope can be found in the lawyer whohas sought them . However, for thosewho are cultured in the legal world, aso liciting lawyer is, for the most part,un acceptable in times of despair."To pacify the public's exasperationwith the legal advertising world, thegovernment has asserted itself to help

the grieving, while transposing atower of legal immunity from the past(Bates).Part ill: ExonerationFlorida v. Mc l l en ry is a recen t decision with immense impact on advertising relating to the legal profession.This section will review the ba ckground of Mcl-lenry and its effects onthe public and lawyers. It will alsoexplain the effect of the decision onthe profession and the nat ion.The 90s thus far have been adecade of renewal, from reaffirmationof constitutio nal rights to environmental awareness. In this decade theSupreme Court has decided manycases that reduce the libert ies of theindividual.

On e such liberty is that of theprivate citizen and its dis taste oflawyers. Whether the spo tte d imageof lawyer s is du e to media images orthat of monetary jealousy, the publicis tired of all the lawyers.The most afflicted secto r of thelegal env ironment is the personalinjury sec to r. To the public this particular segment seems to reek ofgreed and se lfish interest that d is regards both the victim and the taxp aye rs who fund the court system.After a two-year study on theeffects of lawyer advertising on publ icopinion, the Flo rida Bar Assoc iationresolved that several changes wereneeded in its advertising rules . TheState Supreme Court of Florida adopted these amendments with the following two modifications:"l. "A lawyer shall not se nd , orknowingly permit to be sent ... writtencommunication to a prospective clien tfor the purpose of obta ining professional em ployment (see footnote 26)if: (A) the wr itten commun icationconcerns an action for personal injuryor wrongful dea th or othe rwise relatesto an acc ident or disaster involvingthe person to whom the communication is addressed or a relative of thatperson, unl ess the accident or disasteroccur red more than 30 days prior tothe mailing of the commun ication. '?'2."A lawyer sha ll not accept referrals from a lawyer referral se rviceunless the se rvice: (1 ) engages in no

communication with the public andin no di rect contact with prospectiveclients in a manner that violates theRules of Professional Conduct if thecommunication or conta ct were madeby the lawyer . " 28Stewa rt Mcl-Ienry and his lawyerreferral service, Went For It , Inc., filedan action for declamatory and injunctive relief in March of 1992 with theU.S. Distri ct Court for the MiddleDistrict of Florida ." McHenry challenged that Rules 4.7-4(b) ( 1) and 4.78 vio lated First and Four teenthamendments . Mcl-lenry 's mot ive forsuing was tha t his business sent informati on targeted to victims or the irsurvivors during the 30-day time period and he wished to proceed withthis manner of business ."The District Court referred thematte r to the magistrate judge whoresolved that the Florida Bar wou ld"p ro te ct the personal pr ivacy andtranquillity of recen t accident victimsand the ir re latives...ensuring thatthese ind ividu als do not fall prey toundu e influen ce or overreaching." 31The District Court rejected the mag istrate report and entered a summaryjudgment for the plaintlffs." Its bas iswas progen y Bates v. State Ba r ofArizo na, 433 U.S. 350, and subsequent cases (see Part 0. The matt erwas then appea led to the eleventhco urt where it was reaffirmed in thesame mann er as the lower court.Yet, in the appeal to the U.S.Supreme Court the judgment wa sreversed , the plaintiff asserting thatthe First and Fourteenth Amendmentswere not violated. Its grounds we rebased on two areas :

1) Bates and its progen y provideonly a "limited measure of FirstAmendment protect. " The "immediatescrutiny " framework se t forth inCentral Hudson Gas & Electric Corp.v. Public Service Comm , of N. Y , 447U.S. 557, a restriction on comme rcialspeech that, like the advertising atissu e, do es not concern unlawfulactivity and is not misleading is permissible if the gove rnment : ( 1) assertsa substantial interest in support of itslegislation ; (2) es tablishes that therestriction directly and materiallyadva nces that interest; and (3) demon-

GVSU McNa ir Scholars fo urnat VOLUME I. 1997 13


5/7

strates that the regul ation is narrowlydrawn (& , at 564-555. Pp .3-5..Jj)2) Thereby, the ban discussed withstands the Cen tra l Hudson scrutiny inthr ee e leme nts. First, the Flor ida Barhas substantia l interest in both thevictims and their loved ones , as we llas the image of the profess ion to protect aga inst invasive, unsolicited co ntact by lawyers. Second , results of theFlorida Bar study show statistically andanecdotally that direct-ma il so licitations immed iate ly afte r ac cidentsreflect poo rly on the profession .:"Third, the limit of the ban is parallelto the stated ob jectives. With in thetim eframe given , Floridian s haveother metho ds to learn about leg alservices if deem ed necessary."The effects of Mcllenry has beenques tion ed by many legal p rofession als . With the reversal of the low e rco urts ' verd icts the Mcl-Ien ry case w illhave the following implications:1) The Mcl-Ienry case will not legitimize all types of restrictions on legaladvertising. Th is case can provideprecede nt for other states to initiatethe ir own restri ctions.2) M cHem ) ' a llows an ecdotes to berelevant to First Amendment jurispruden ce .3) The direct-mail ba n appl ies only topersona l injury lawye rs wis hing torepresent the victim. Insuran ce companies, med ia, and defendant attorneys may still contact the victimthrough the ma il.4) All othe r means of legal servicemarketing is still applicable.Conse q uently, th e verdict hasmade quite an impact on the legalcommunity. To some the decisionwi ll br ing an element of publ ic admiration back to the p rofession . Asnoted by Wilbur Warren , Kenosha ,Wiscons in lawye r and chairman ofthe board wh ich ha ndles disciplinaryactions against lawyers, "My sense ofit, from talking to lawye rs in the co urthouse , is that the vast majority finddirect-mail so licitations to be distasteful and unprofessional. " ,\6 In agreemen t is William M. Cannon ofCanno n & Duphy (a personal injurylaw firm) wh o finds lawyers tha t usedire ct-mail so licitat ion "out of lineand disreputable ."

14

Even afte r the Ok lahoma Citybomb ing many attorneys flocked tothe area seeking clients who mightneed legal adv ice after the nationa ldisaster. To co unteract greedy actionsfrom "parachute lawyers ," as des-cribed by th e Oklahoma BarAssociation (OBA) executive director,a team of 200 lawyers wa s organizedto represent the fami lies and / or th evictims, free of charge.While maintaining that d irect-mailso licitat ion is a necessity, no t a nu isa nce, \Visconsin State Bar presidente lect David A. Soicheck states that"se nding letters are a far C1y fromambulance chasing or passing outbus iness cards at a d isaster site . Mostpeople appreciate a letter because itinforms them of thei r rights as potential p laintiffs."Others argu e that the Mciienrycase is biased in favor of the larger,wea lthy firms. "The lawyers who mostre ly on advertising an d so licitation areso lo practitioners and small firms ,beca use the larger firms already haveaccess to busin ess," says P. CameronDeVore , First Amendment expert whofiled an arn incu s br ief in the case ..;7 Asargued by Beverly Pohl , member ofthe Florida Bar, "Not all attorneys canafford TV ads . Direct mail is velY costeffective for a lawye r w ith a smallp ractice . But it isn 't effec tive if itsde layed after an accident. "Is the co nsumer rea lly at benefit oris this an internal p rofession al war asDavid Vlad eck, atto rney with thePublic Citizen Litigation Group inWashington, D.C., implies? Accordingto Vladeck , the Sup reme Cour t's decisio n "will only entrench the es tablish ed bar. ..th e plaintiffs ' law yerswa nt to sq uelch the competition ."One must ask whethe r the p rofes sional arguments are adequate , inre lation to the basis for the Sup remeCourt dec ision, in not only protectingthe p rofession, bu t most importantly,the consumer.Part IV: The ImpendingProspectsThis section will d iscuss some of thebenefits that th e co nsume r faceswithout the Flor ida ban. It will alsoprovide insight on some possible

losses to the unspoken ind ividualswho were hel ped , and not infuriated,by di rect-mail sol ic itat ion in Florida.Wh en an acciden t occurs thatinvo lves injury or death , relevance isgiven to the ava ilab le facts regardingthe acc ident's ca use in order toensu re the victim(s) of their possiblerightful restitution . However, some-times the restitution be comes a pr iority for the attorney instead of the victims' needs . The Mct-Ienry case is o neaspect of government trying to se tguide lines for proper, arbitrary tacticswit h the goa l being to end the negative image of greedy lawye rs .Yet, is a thirty-da y ban effective inprotecting the individual or the pro-fession ? As previously noted , law yerssee dir ect mail as damning to the professio n. Howeve r, the devil is in thede tails , and the possible dam age to avictims ' case co uld result in the lossof the cas e w ithin the thirty-day suspension period . It could be ben eficialto the case as a waiting period toestab lish injury.Now that the Mcllenry case hasbeen reversed many expe rts are dis cussing its effects on co nsumers seeking legal help . As noted in his d issen tafte r the op inio n was delivered , J.Kennedy warned "th at the majorityhad undercu t co nstitu tio na l protection in an importan t class of casesand unsettled lead ing First Amen-dment preced ents , at the ex pe nse ofthose victims most in need of legalass istance . When an accident resultsin death or injury it is ofte n urgen t toinves tigate the occurrence , iden tifywitnesses, and p reserve eviden ce . . .all tasks that can be pe rformed only ifthe plaintiffs' lawye r se ek s ou tprospect ive cl ien ts. "38 Kenn ed y'sopinion refl ects the co ncern of manylawye rs.As estab lis he d in his commentaryfo r the Con nect icu t Law Tribune,Ralph GregOIY Elliot stresses co ncernfor the uninformed victim. "Fo r thesepeop le , all too ofte n poo r, unlett ered ,non-English-speaking , the alternativechannels of media , bi llboard , andYellow Page ads are tot ally inadequate mea ns o f attention .. .wh enreleases are being shoved under th eirnoses and mo rticians plying thei r

Exploratory Discussion of LegalAdvertising Bans


6/7

wares .'?' How are these peop le to differenti ate the type of lawyer they mayneed in their time of grief. Some mayassume that the insuran ce companywill cover all damages only to d iscover late r this was not the case. Oran individua l may leave an accide ntscene unharmed without an injurystated on the po lice report. It is thentoo late to seek counsel, after the fact,when no cause is noted for therecord. As David Singer, a Hollywoodlawyer says, "Insurance companieswill have a thirty-day lead time to getclaimants to sign away their rights.":"Unfortunately for some, the Mc-Hem ) ' decision wi ll not be seen asvindication in Florida . It will insteadbe interpre ted as complete darknessin a unknown world.Part V: ConclusionAs a future lawyer, I find legal adve rtising and bans , as discussed in theMci ienry case, interesting. Beginningwith the Bates case, the legal advertising that is being either discouraged orpraised is all that I have ever known .As a consume r I find that it's not mainstream advert ising that hurts the imageof lawyers as much as sensationalism.In the ignorant age of ente rtainment, many only know what they seeand hear. Thro ugh available venues ,such as movies and books, we readand estab lish percep tion s of how theworld functions. The perception isthat lawyers are greedy because theycharge outrageous prices and liveoutlandish lifestyles . In the world ofreality few live the life of greed . Theprices charged are du e to economiccircumstances suc h as finan cia lresponsibilities , i.e ., schoo l loans,time , and manpower. To be a lawyeris a tremendous cycle of ex pensesfrom things as minute as copy fees tomajor expense s such as private investigator fee s. On ave rage , if a casegoes to tria l, a lawyer could spend aminimum of 100 hours in preparationfor the case. And when averaged out ,$100.00 an hour is chea p if it meansavo iding a financial loss, custody of achild or even imprisonment , which iswhy even though peop le complain,they still pay.The refore , the legal profess ion will

always be needed even by those wh oare appalled by it. It is not the profession overa ll that is to blame , it'sthe individual. In research ing thisproject I encountered many personsin the legal p rofession who were toomoney grubbing to give me five minutes o f their time , but I also encountered those who wer e very helpfuland free of cha rge .I suppo rt legal advertisements ,including mail so licitations . I feel de finitely that if an acc ident victim hadencountered thos e selfish individualsthat I encountered on my researchventures , the ir jud icial rights might belost and they could possibly continueto remain a victim.Currently, the State of Michigan isconsidering the same so licitation rule .The Michigan Bar Association hasestablished through its professionalcommittee a recommendation against

a sol icitation rule . Although moreresea rch will be performed to eva luateall the possibilities , it will be interesting to compare the results of the legalintegrity in Florida vs. the publicimage here in Michigan . I seriouslydoubt that a letter of solicitation willinfluence this issue in a positive way.

AcknowledgementsI would like to acknow ledge several professionals helpful in my research: the AmericanBar Association Advert ising Committeemembers Cassie Dallas Santa and \ViIIiamHornsby, .II'; Michigan Bar AssociationDirector of Adv ert ising, Thomas Oren; DaleSprik and Associates; as we ll as theMichigan Law Library. and other lawyerswho wished to remain unnamed .

GVSU MctvairScbolars fo n rnat VOLUME I. 1997 1':;


7/7

Footnotes1 Disciplinary Rule 2- 101(B), inco rp . in Rule 29(a) of the Supreme Court of Arizona , 17A Ariz.Rev. Stat., p .26 (Supp. 1976).2 The partners used this term for the i r law office which specia lized in pro viding inexp en sivelegal se rvices to lower-income ind ividuals.3 To provide such economica l p rices , services were limited to uncontested d ivorces . uncontestedadoptions, commo n perso nal bankruptcies, and name changes .* Information cited from Bates u. State Bar ofA rizona 433 U.S. 350 p354.4 ill ., at Tria l of O ral Arg . 4.5 As pre scribed by Arizona Supreme Court Rule 33.6 State Supreme Court Rule 36.7 Permitted by State Supreme Cour t Rule 37.8 Federal Act that prohi bits compe tition limits .9 Amendment of the Cons titu tion that p rovides freed om of speech to citizens o f America.10 113 Ariz. 394, 555 P.2d 640 ( 976).I I Framework case that sta ted California officia ls were not prohibited to have sta te programsthat limited growers or raisins, thus , ma intaining prices. The Supreme Court held that"as sove reign , it imp osed the rest ra int as an act o f gove rnm ent wh ich the She rman Act didnot prohibit." (317 U.S. at 352.)12 William son u. Lee Optical Co., 348 U.S. 483 ( 955), and Virginia Pharmacy u. Virgin iaConsurner Con nett. 425 U.S. 748 (976) .13 Meaning is similar to common co nnection.14 It should be noted that in some cases, such as Williamson u. Lee Opt ical, the co urts did not

resolve a First Amendment issue .15 According to the fil ling the "co nstitutiona l issue o f the case was whe ther the Suprem e Courtma y pr event the pu blication in a newsp ap er of truthful advertising co ncern ing the ava ilabilityand terms of routine legal se rvices." (Bates u. State Bar ofAriz ona, 433 U.S. 350 pp . 384.)16 Id ., at 402-403, 555 P. 2d , at 648-649 .17 See acknowledgem en ts after th is article .18 Bates u. State ofA rizona 433 U.S. 36819 Res po nse wr itten of a min ute survey that was issue d as part of the research for th is pro ject.See Ackn owledgement s .20 Exce rpt from "The org anized bar 's ro le ," Bar Leader, ( Ian/Feb . 1995).21 Bar Lead er (Jan ./F eb . 1995), p . 9 par. 1322 "Recommend ations from lawy er advertising at the crossroads ," Bar Leader . (Ian ./Feb . 1995).23 ABA Dignity in Lawye r Advert ising website. www .aba ne t.o rgilega lse rv/d ignityaward .hmtJ.24 Pelt z, "Legal ad vertising-op ening pan dora's box" 19 Steso n L. Rev. 43, 116 ( 989).25 "Flor ida Bar : Pet ition to amend the ru les regulating the Florida Bar"-Advertisin !-! Issues , 571,So . 2d 451 (Fla. 1990).26 1995 WL 365648 (U.S.)p .2 par,27 Rule 4-7Cb) (J )28 Rule 4-7.8 (a)29 1995 \,\'L 365648 (U.S.) p .2 para.230 Note : McHenry wa s disbarred for unrelated actions; John T. Blakely, lice nsed in Florida,substitute d in his place .31 1995 WL 365648(U.S.)p .2 pa ra .S32 808F.Supp. 1543(MD Fla.1992)33 1995 WL 365648 CU.S.) pp . I par.3 Opinion of J. O'Connor .34 Respon dents mentioned as a bas is by J. O'Con no r are Edenfield u. Pane 507 U.S.; Shapero u.

Kentucky Bar Assn.. 486 U.S. 466, 475-476; and Bolger u. Youngs Drug Products COIP.. 463U.S. 60. n.35 Thi s section was taken in pa rt from West Law documentation of the Supre me Cour t decisionde cided June 21,1995 , for the MctIenr case 1995 WL 365648 (U.S,).36 Taken from Milwaukee Journa l Sentine l. Decembe r 24, 1995.37 Lawyers Week ly USA. July 3, 1995.38 63 U.S.L.W. 4644, Wall Stree t [oumal Jun e 22. 1995.39 Conne cticut Law Tribune 21 (50) December 18 , 1995.40 Quote is an excerpt from The Miami Herald Ju ne 22, 1995.

Exploratory Discussion of Legal Advertising Bans

ethics saved or a penny earned

Documents