Bates v. State Bar of Arizona
433 U.S. 350, 51 Ohio Misc. 1 (1977)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A state bar's blanket suppression of all advertising by attorneys, specifically truthful newspaper advertising of routine legal services for fixed fees, violates the First Amendment's protection of commercial speech.
Facts:
- John Bates and Van O’Steen were licensed attorneys in Arizona.
- In 1974, they opened a 'legal clinic' in Phoenix, intending to provide routine legal services to persons of moderate income at modest fees.
- To keep costs low, their practice focused on high volume and the use of standardized procedures, paralegals, and automated equipment.
- After two years, Bates and O'Steen concluded their clinic could not survive financially without advertising to attract the necessary volume of clients.
- On February 22, 1976, they placed an advertisement in the Arizona Republic, a local newspaper.
- The advertisement stated they offered 'legal services at very reasonable fees' and listed specific prices for services like uncontested divorces, adoptions, personal bankruptcies, and name changes.
- This advertisement was a clear violation of Arizona Supreme Court Disciplinary Rule 2-101(B), which imposed a broad prohibition on advertising by lawyers.
Procedural Posture:
- The president of the State Bar of Arizona filed a complaint against attorneys Bates and O'Steen for violating the bar's rule against advertising.
- A Special Local Administrative Committee held a hearing and recommended that both attorneys be suspended from practice for at least six months.
- On review, the Board of Governors of the State Bar reduced the recommended sanction to a one-week suspension for each attorney.
- Bates and O'Steen (appellants) sought review in the Supreme Court of Arizona, arguing the rule violated the Sherman Act and the First Amendment.
- The Supreme Court of Arizona, as the court of last resort in the state, rejected the appellants' claims but reduced the punishment to a censure, finding the advertisement was a good-faith effort to test the rule's constitutionality.
- Bates and O'Steen appealed the judgment of the Arizona Supreme Court to the U.S. Supreme Court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a state supreme court's disciplinary rule that completely prohibits attorneys from advertising the prices of routine legal services violate the First Amendment?
Opinions:
Majority - Mr. Justice Blackmun
Yes, the blanket ban violates the First Amendment. The flow of truthful information about the availability and terms of routine legal services may not be restrained by the state. The Court extended the commercial speech protection established in Virginia Pharmacy Board to legal services, rejecting the state's justifications for the ban. The arguments that advertising would erode professionalism, would be inherently misleading, would stir up litigation, and would be difficult to regulate were found unpersuasive and insufficient to justify a complete suppression of this form of speech. The historical justification that law is 'above' trade is an anachronism, and the state's paternalistic approach of keeping the public in ignorance is inconsistent with First Amendment values. While the state can regulate false, deceptive, or misleading advertising, it cannot prohibit truthful advertising of routine services.
Concurring - Mr. Justice Powell
No, the ban does not violate the First Amendment. The court's holding will effect profound changes in the practice of law and is not in the public interest. Legal services are fundamentally different from the standardized products at issue in Virginia Pharmacy. It is impossible to classify legal services as neatly 'routine' or 'unique,' as even a seemingly simple matter like an uncontested divorce can involve complex issues of child custody or property rights that are not captured in a fixed-price advertisement. Such ads are therefore inherently misleading. Furthermore, the court seriously understates the difficulty of policing lawyer advertising for deception across hundreds of thousands of practitioners, a task for which the bar is ill-equipped. The state's interest in protecting the public and maintaining professional standards is sufficient to justify the ban.
Concurring - Mr. Chief Justice Burger
No, the ban does not violate the First Amendment. Legal services can rarely, if ever, be standardized, and potential clients seldom know in advance what services they actually need, making price advertising a 'trap for the unwary.' The assumption that the bar can effectively police the new problems created by this decision is unrealistic, as existing disciplinary machinery is already inadequate. The Court is taking a 'great leap' into a sensitive regulatory area where the profession has not yet learned to crawl. A better approach would be for the organized bar to experiment with programs that announce probable fee ranges for clearly defined services, rather than having the Court impose a constitutional rule.
Dissenting - Mr. Justice Rehnquist
No, the ban does not violate the First Amendment. The First Amendment was not adopted to protect purely commercial activity like advertising goods and services. The Court's prior distinction between commercial speech and protected speech in Valentine v. Chrestensen was constitutionally sound and workable. By abandoning it in Virginia Pharmacy, the court started down a 'slippery slope' of case-by-case adjudication that demeans the First Amendment. The appellants' advertisement, however truthful, is not the sort of expression the amendment was adopted to protect.
Analysis:
This landmark decision fundamentally altered the legal profession by establishing that lawyer advertising is constitutionally protected commercial speech. It struck down longstanding blanket bans on advertising, forcing state bars nationwide to revise their ethical codes to permit truthful advertising. The ruling fostered competition among lawyers and increased public access to information about legal services and fees. While the holding was narrowly tailored to print advertising for routine services, it opened the door for future expansions and created the modern regulatory framework focused on preventing false or misleading advertising rather than prohibiting it entirely.
