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Lawyer advertising still controversial after 30 years

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The ad that started it all
The newspaper ad that prompted the successful challenge to the lawyer advertising ban. Arizona attorneys John Bates and Van O'Steen took out this ad in an Arizona newspaper.
Bates v. Arizona, U.S. Supreme Court Appendix

More than 30 years ago, two Arizona lawyers decided to set up a legal clinic that would serve lower and middle class consumers. To attract business, the two placed a newspaper ad that offered "legal services at very reasonable fees" and listed the fees for each of the services such as uncontested divorces, adoptions and simple bankruptcies. 

At the time, lawyer advertising was banned in all 50 states. The State Bar of Arizona censured the two for violating ethics rules against lawyer advertising. The two appealed and the U.S. Supreme Court, led by St. Paul native Chief Justice Warren Burger, heard the case.

Arguing on behalf of the Arizona attorneys in 1977, another former St. Paulite, William Canby, told justices that advertising helped consumers access legal assistance.  He told the Supreme Court that the wealthy knew how to access lawyers because they moved in the same social circles.  But for those who were not wealthy, hiring a lawyer was intimidating.

Life's Short.  Get a Divorce?
Divorce attorney Corri Fetman unveils her new advertising campaign on mobile billboards June 7, 2007 in Chicago, Ill. Fetman's previous campaign featured a fixed billboard with the same slogan, "Life's Short. Get a Divorce." but used different photos that were removed by the city after one week.
Photo by Scott Olson/Getty Images

"A great number of people in the United States don't know how to find a lawyer, don't have regular contact with lawyers and they also don't have a very good idea, many of them, what lawyers charge for their services, and a good portion of them tend to overestimate the cost of lawyer services," said Canby.

But attorney John Frank made an impassioned plea to keep commercialism out of the legal profession.

"The few at this table, this court, the lawyers in this room, the lawyers outside and those who came before us have taken pride in what is good about this profession.  May it never be said that this profession was cheapened here in this its highest sanctuary," Frank said.

The greatest opposition to advertising came from personal injury lawyers.  Those who had established practices built their businesses on reputation, word of mouth and who they knew socially.

Advertising would change that. A new lawyer -- who had no social connections -- could attract clients.

If they would ban advertising tomorrow, I'd probably go out and toast it.

The Supreme Court struck down Arizona's ethics rule saying it violated the First Amendment.  Since then, local bar associations have tried to limit how attorneys advertise but those limits vary widely around the country.   All agree that lawyers can't mislead or falsely represent themselves.  Minneapolis attorney Ron Meshbesher says advertising puts lawyers in a bad light. He advertises but calls it a necessary evil.

"If they would ban advertising tomorrow, I'd probably go out and toast it," said Meshbesher. "I think what's happened here is that lawyers have gotten tarnished very negatively by this advertising and look in the yellow pages and some of the TV ads -- they just look like hucksters and it takes away the professionalism of the profession," he said. 

Even before lawyers were allowed to advertise in 1977, polls showed they suffered from a poor public image.  Richard Cebula, a national expert on economic analysis, conducted an empirical study on how lawyer advertising affects the image of lawyers.  He found many factors were at play: Politicians don't have a good image and many are lawyers; people typically aren't happy when they see lawyers like during divorces; and for every case that wins, someone has to lose.

Cebula says in general how a person reacts to such advertising depends on demographics.  He says those who had lower incomes, little education, or were new citizens thought more of lawyers based on advertising.

"What I think we're dealing with here is that we have a declining image of lawyers, but that has historical basis and a number of identifiable sources. But it certainly isn't lawyer advertising. If anything, lawyer advertising, the evidence shows -- that if we allow for all of these other factors -- lawyer advertising actually improves the overall image of lawyers," said Cebula.

The highest duty of the legal professsion
"The highest duty of the profession is to provide legal services to those who need it and don't have it." -- Senior Judge William C. Canby, Jr., U.S. Court of Appeals for the 9th Circuit.
Photo/University of Minnesota

Movies also played a strong role in the public's view of lawyers Cebula found. The 1993 film "The Firm" and others like it reinforced the stereotype of conniving attorneys.  In one scene, senior partner Gene Hackman talks ethics with young associate, Tom Cruise.

"You think I'm talking about breaking the law," asks Hackman. 

"No I'm just trying to figure out how far you want to bend it," says Cruise.

"As far as you can without breaking it," he says.      

So what does the attorney who won the Supreme Court case in 1977 think now?  

William Canby is a judge on the 9th U.S. Circuit Court of Appeals.  He has seen some lawyer advertising that he did not like, but overall he says it has been good.  

When asked about whether advertising has cheapened the profession, Canby said, "My answer to that is:  Really the highest duty of the profession is to provide legal services to those who need it and don't have it.  When you think about it, the dignity of a profession may not be the highest public goal."

Canby also says he's disappointed that more attorneys haven't advertised their prices but he understands that may be impractical in individual cases.

One of the original plaintiffs who challenged the Arizona law, Van O'Steen has a personal injury practice in Phoenix.  He also started a company that creates television ads for lawyers.  Minneapolis attorney Ron Meshbesher is one of his clients.  

The Chicago law firm that erected the billboard "Life's Short. Get a Divorce." took the ad down because the firm lacked the proper permit. The ad, however, did not die.  A slightly tamer version has gone mobile. The firm bought space on the side of trucks that now drive through downtown Chicago.