Attorney Advertising
Attorney's Rights
The legal profession is entitled to the same first amendment rights as any other business entity. Thus, in general, attorneys are permitted to advertise. The Supreme Court has said that "disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law" Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054 (1991).
The Supreme Court has determined that "regulation--and imposition of discipline--are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive." In re R.M.J., 455 U.S. 191, 202 (1982). The court goes on to look at where the state interest lies:
Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive. Thus, the Court in Bates suggested that the remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation. Although the potential for deception and confusion is particularly strong in the context of advertising professional services, restrictions upon such advertising may be no broader than reasonably necessary to prevent the deception.
Id. at 203 (citations omitted). The R.M.J. Court is especially concerned with personal solicitation, quoting Ohralik v. Ohio State Bar Association, 436 U.S. 447, 462 (1978), where the Court said: "the State has a legitimate and indeed 'compelling' interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of 'vexatious conduct.' . We agree that protection of the public from these aspects of solicitation is a legitimate and important state interest." Id. at 462 (citations omitted, emphasis added). The state is permitted to implement blanket prohibitions of such conduct in certain situations. According to the Court:
The Rules were applied in this case to discipline a lawyer for soliciting employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert. In such a situation, which is inherently conducive to overreaching and other forms of misconduct, the State has a strong interest in adopting and enforcing rules of conduct designed to protect the public from harmful solicitation by lawyers whom it has licensed . . . . The potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Such an individual may place his trust in a lawyer, regardless of the latter's qualifications or the individual's actual need for legal representation, simply in response to persuasion under circumstances conducive to uninformed acquiescence.
Id. at 464-65 (footnotes & citations omitted, emphasis added).
However, personal solicitation cannot be prohibited in all cases. For example, in person solicitation is permissible where the attorney is motivated by political objectives, rather than for pecuniary gain. In re Primus, 436 U.S. 412 (1978). The Court seems especially sensitive to the ability of civil rights organization to personally solicit clients to advance the civil rights cause when the Court states:
The solicitation of prospective litigants, many of whom were not members of the NAACP or the Conference, for the purpose of furthering the civil-rights objectives of the organization and its members was held to come within the right " 'to engage in association for the advancement of beliefs and ideas.'
Id. at 423-24 (citing from NAACP v. Alabama, 357 U.S. 449, 460 (1958)).
Thus, when the advertising is not inherently misleading or where experience has not shown the advertising "subject to abuse," (such as for personal solicitation), the supreme court relies on the Central Hudson Test to determine if the regulation is permissible. Ohralik at 464-65. But where political speech is implicated, the court will provide a more lenient standard since political speech receives special First Amendment protections. See e.g., Primus, 436 U.S. 412 (1978); NAACP v. Alabama, 357 U.S. 449 (1958).
For more detailed examinations on the subject of attorney advertising, see Carole R. Richelieu, Solicitation of Clients, 1-SEP Haw. B.J. 20 (1997) (discussing in person and mail solicitation); Richard P. Martel, Jr., Regulation Of Advertising in the Legal Profession-Still Hazy After All These Years, 1997 Det. C.L. Mich. St. U. L. Rev. 123 (examining the Supreme Court case law pertaining to attorney advertising); Michael P. Malakoff and David W. Snyder, The Ethical Boundaries of Soliciting Clients in Class Actions, 989 PLI/Corp 21 (1997) (focusing on the special concerns of class action lawsuits).
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