Vol. 30, No. 2 #2 (April 2007). ETHICALLY SPEAKING: Communications About Legal Services Part I - the Constitutional Framework.

• Author: By John M. Burman

Wyoming Bar Journal

2007.

Vol. 30, No. 2 #2 (April 2007).

ETHICALLY SPEAKING: Communications About Legal Services Part I - the Constitutional Framework

WYOMING LAWYER Vol. 30, No. 2 (April 2007) ETHICALLY SPEAKING Communications About Legal Services Part I - the Constitutional Framework By John M. Burman

We tend to think of advertising and solicitation by lawyers when we think of lawyers communicating with clients or prospective clients. And while advertising and solicitation draw most of the attention, they are not the only forms of lawyer communication with clients or prospective clients. Rather, virtually all lawyers communicate in some way(s) with such persons, and all should, therefore, be aware of the limitations that apply to their communications. Since the parameters of permissible lawyer speech are established by the First Amendment to the United States Constitution, as interpreted by the United States Supreme Court, it is critical to understand the constitutional framework before analyzing the new Wyoming Rules of Professional Conduct, which differ significantly from the previous version. Accordingly, this article will discuss that framework, and the next will discuss the new Wyoming rules. Introduction

One who becomes a lawyer does not thereby lose his or her First Amendment right to make extra-judicial (out of court) statements. The same is true, although to a lesser extent, when it comes to a lawyer's communications with prospective clients (advertising or solicitation). Such communications are protected, but to a lesser extent than other extra-judicial statements by lawyers.

Lawyer communication with clients or prospective clients falls into five general areas: (1) general communications; (2) advertising seeking new clients; (3) solicitation of prospective clients; (4) communications about the lawyer's specialization; and (5) the creation and use of firm names. The constitutional framework for each is discussed below.

Background

Lawyers traditionally did not advertise or otherwise actively seek new clients.(fn1) Rather, law was thought to be a profession, and professionals let clients come to them, and not vice versa. The tradition became part of the rules of ethics. The American Bar Association's ("ABA") Model Code of Professional Responsibility (the predecessor to the current Model Rules), for example, contained an express prohibition on lawyers advertising for clients,(fn2) as did its predecessor, the 1908 ABA Canons.(fn3) That all changed in 1977, with the United States Supreme Court's decision in Bates v. State Bar of Arizona.(fn4)

Advertising for Clients

Before discussing lawyer advertising, it is useful to define it. According to the Seventh Circuit, "[t]he term 'advertising' has been defined as follows: 'the action of calling something (as a commodity for sale, a service offered or desired) to the attention of the public especially by means of printed or broadcast paid announcements.' Webster's Third New International Dictionary of the English Language Unabridged 31 (1963)."(fn5) The key is that it is a communication to "the public," not to any specific person or persons known to be in need of legal services. It is, in short, a general invitation to use the services of a lawyer. The issue of the constitutional propriety of advertising by lawyers came to the fore in the United States Supreme Court's opinion in Bates v. State Bar of Arizona.(fn6)

Bates involved two lawyers in Maricopa County, Arizona (Phoenix). They decided to open a "legal clinic" to provide "legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid . . ."(fn7) The clinic focused on providing "routine matters, such as uncontested divorces . . ."(fn8) After two years, the lawyers who operated the clinic realized that they would have to generate more clients. The "legal clinic" concept would fail, they believed, "unless the availability of legal services at low cost was advertised and in particular, fees were advertised."(fn9)

Despite the State of Arizona's ban on lawyer advertising, the lawyers placed an ad in the Arizona Republic, a newspaper of general circulation in the Phoenix area, which stated that the legal clinic was "offering 'legal services at very reasonable fees,' and listed their fees for certain services."(fn10)

The lawyers conceded that their advertisement was in violation of Arizona's rule prohibiting lawyer advertising, and the ads resulted in a grievance. The state bar committee which heard the grievance recommended a suspension of six months, which was reduced to one-week by the Arizona Board of Governors. That suspension was reduced to a censure by the Arizona Supreme Court.(fn11) The lawyers then sought review in the United States Supreme Court, claiming that the rule prohibiting lawyers from advertising violated their First Amendment rights.(fn12)

The previous year, the United States Supreme Court had held that pharmacists have a constitutional right to advertise prescription drug prices.(fn13) The Court looked to that decision in considering the issue of attorney advertising. In discussing the reasons for permitting the advertisement of drug prices, the Bates Court said that advertising "should not be withdrawn from [First Amendment] protection merely because it proposed a mundane commercial transaction."(fn14) Such "commercial speech," it said, "serves to inform . . . the availability, nature and price of products and services and thus performs an indispensable role . . ."(fn15)

After rejecting all the arguments against lawyer advertising, the Court held that lawyer advertising is constitutionally similar to advertising prices for pharmaceuticals. Each involves commercial speech.(fn16) Each, therefore, is entitled to First Amendment protection; that protection is not, however, absolute.(fn17) States may regulate commercial speech, including...