What are the Proper Limits of Attorney Advertising?
Jonathan G. Stein, a personal injury attorney in California who writes a great blog for injury victims, feels that attorneys should be restricted in their advertising efforts. Attorney Stein argues that personal injury lawyers should not be allowed to directly solicit their services to personal injury victims. As always, Attorney Stein makes a solid point, but, however, I must respectfully disagree with his position. In order to do this I must discuss attorney advertising on both a general and a specific level.
Let’s start on the general level. Attorney advertising is a relatively new phenomenon. Until 1977 lawyers were essentially prohibited from advertising their services to the public. However, the 1977 decision of the U.S. Supreme Court in Bates v. State Bar of Arizona changed all that. In Bates, the Court decided that it was not only permissible for attorneys to advertise, but that it was important for attorneys to advertise. The reason for that is clients could possibly make more informed decisions when selecting an attorney if they had more information about attorneys. The Bates decision was a watershed case that forced the states to tweak their ethical rules concerning attorney advertising.
Since Bates however, there has been a glut of distasteful lawyer advertising – especially personal injury advertising – permeating all types of media, i.e. television, radio, print advertising, etc. This results in the all too common "ambulance chaser" ads and the negative perception that label engenders by non-lawyers in our society.
I do feel however that attorneys should be able to advertise their services relatively unimpeded. But with one caveat: attorney advertising must not be distasteful and lowbrow. What do I mean by this? Attorneys, especially accident attorneys, should not be allowed to create misleading ads which create unjustified expectations for clients, i.e. "I recover millions for my clients."
Now for a specific example of attorney advertising, I turn to the area of direct solicitation. Accident attorneys throughout America should be allowed to directly solicit to potential clients. This I feel can potentially enable a client to make a more informed decision about what attorney or attorneys would promote and protect their interests the best. I do not believe that direct solicitation should be made through telephone calls, but only, through one written letter to the prospective client. The letter will have at the top, preceding the body of the letter, a bold headline at the top of the letter conspicuously stating "ADVERTISING MATERIALS." Many states already have this ethical requirement in place in their attorney ethics codes.
But within the letter, no unjustified or misleading representation should be made. The letter should simply state in the body of the letter that the attorney or attorneys authoring the letter may be able to represent the interests of the intended recipient: the accident victim, but are able to promise no particular results or outcomes for the client.
I believe therefore that attorneys should be able to advertise their services within the bounds of, above all, reasonableness. But attorneys should be forbidden from disseminating ads that create unjustified and unrealistic expectations of what the attorney can ultimately, if anything, accomplish for the client. And, attorneys should, in all states, be allowed to directly solicit injury victims with written communications, but should be required to place the words "ADVERTISING MATERIALS" prominently at the top of the letter.
Allowing attorneys to advertise within reasonable bounds arguably increases the access clients have to quality lawyers. Is essentially allows the client to be more discerning and particular about what attorney is best for him or her. At the same time, allowing attorneys to advertise provides that their commercial speech rights are protected. As long as attorneys are able to advertise within reasonable bounds, and as long as the profession of law is considered to be a noble one, I am satisfied.
Feel free to share with me your thoughts on this topic.