ATTORNEY ADVERTISING IS HERE TO STAY
By
Mike Hoover, Administrative Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (March
1982)
It has been almost five
years since the United States Supreme Court decided Bates v. State Bar of
Arizona, 433 U.S. 350 (1977), in which it held that newspaper
advertisements listing the prices for routine legal services and the lawyers’
availability to perform such services were entitled to First Amendment
protection. Since Bates, the
Minnesota Supreme Court has substantially amended the Disciplinary Rules under
Canon 2 of the Code of Professional Responsibility. As a result of the amendments, only in-person and telephonic
solicitation are prohibited.
Advertisements and written solicitations, even those directed to a
specific client for a specific matter, are permitted so long as they contain no
false or misleading information.
Prior to Bates, the
legal profession had a long history of prohibiting most forms of advertising
and virtually all solicitation. Many
lawyers were disappointed in the Bates decision and still regard
advertising as a deleterious influence on the professionalism of the bar. Other attorneys have not fully grasped the
impact of the national and local changes in regulation and continue to file
complaints with my office about advertisements and direct mail solicitations
which are clearly permissible under current rules.
Recent cases in the United
States Supreme Court and in the Minnesota Supreme Court demonstrate that the
courts will not be retreating from the recent holdings and Code
amendments. Lawyers may continue to
have personal feelings about the wisdom of the decisions. They may also refrain from advertising or
solicitation in their own businesses.
It is, however, time for all lawyers to accept the decisions as the law
of the land and to familiarize themselves with the new regulations.
On December 24, 1981, the
Minnesota Supreme Court decided In Re Appert and Pyle, a disciplinary
case. In Appert and Pyle, the
Supreme Court held that direct mail solicitation and the distribution of
brochures describing Respondent’s availability for certain kinds of cases were
entitled to constitutional protection.
In dismissing the disciplinary petitions, the Court embraced fully the
principles embodied in Bates, making clear that discipline is
appropriate only when letters or brochures contain false, fraudulent, deceptive
or misleading information. In the final
paragraph of its opinion in Appert and Pyle, the Court stated:
“We view the right of the
general public to know of the availability of professional services as the
principal interest involved in advertising for such services. Advertisements designed to achieve less
important objectives will be subject to a more critical scrutiny. Overbearing and intrusive practices such as
personal solicitation, direct or indirect, and the giving of value in exchange
for a favorable commendation or reference are not permitted. We insist on affirmative adherence to the principle
that false, misleading, or deceptive statements constitute a serious violation
of professional ethics and will require severe sanction. Conduct that the advertising attorney knows
or should know is an interference with an existing professional relationship is
prohibited. Claims of special expertise
in advertisements may be found to be material representations giving rise to a
warranty of competence or information that is false, deceptive or misleading.”
The Minnesota Court has
responded to Bates by promulgating rules which accept the fact that
attorney advertising is here to stay and which regulate only obvious or highly
predictable abuses. Not every
jurisdiction has reacted in the same way.
Consequently, the United States Supreme Court had before it another
advertising case, In Re R.M.J., 80-1431 (January 25, 1982), in which
Missouri’s severe restrictions on attorney advertising were struck down.
Following Bates, Missouri
promulgated rules which prohibited direct mail advertising, prohibited the
listing of courts in which lawyers were admitted to practice, and specified the
language to be used in advertising areas of practice. In R.M.J., Missouri sought to discipline a lawyer who used
direct mail advertising. His
advertisements referred to his admission to practice in the United States
Supreme Court and listed his areas of practice as including “Workman’s
Compensation” rather than the approved “Worker’s Compensation.” The United States Supreme Court unanimously
reaffirmed state power to regulate lawyer advertising that is “inherently
misleading or that has proven to be misleading in practice” if the restrictions
are no broader than necessary to prevent deception. The specific Missouri restrictions were stricken as inappropriate
because the record failed to establish that the lawyer’s statements were
misleading, that the restrictions promoted a substantial state interest, and
that only an absolute prohibition would be sufficient to cure possible
deception.
Minnesota’s Disciplinary
Rules are drafted to avoid the problems encountered by Missouri in R.M.J. Those Rules can be summarized as
follows:
1. Lawyers may
advertise.
2. Lawyers may
engage in direct mail and other written solicitation.
3. Advertising
and permitted solicitation must refrain from utilization of false, fraudulent,
deceptive or misleading information.
4. In person
and telephonic solicitation, direct or indirect, is prohibited.
5. The giving
of value in exchange for a favorable recommendation or reference is not
permitted.
Questions of taste,
dignity, and self-laudation are not usually relevant to the question of whether
discipline is appropriate.
There is currently a
de-emphasis in regulation of the “commercial” aspects of the profession for
both constitutional and practical reasons.
The constitutional reasons have been discussed above. Practical reasons require that overtaxed
disciplinary resources be directed toward maintaining the integrity of the profession
leaving to some extent the commercial aspects of practice to regulation by the
marketplace.
In any event, the point to
be made herein is that courts have decided advertising is here to stay. All attorneys should familiarize themselves
with the new regulations and direct complaints to the disciplinary board only
when a written communication contains false or misleading information or when
an impermissible means of solicitation is utilized.
NOTICE
The Lawyers Professional Responsibility Board is
considering the question of whether Northwestern National Bank v. Kroll, 306
N.W.2d 104 (Minn. 1981), totally prohibits the assertion of any lien for fees
against a homestead. See also,
DR 5-103(A). Code of Professional
Responsibility.
The
Board expects to consider this matter at its June meeting. All lawyers are invited to comment on this
issue by writing by May 15, 1982, to:
Michael
J. Hoover, Director
Lawyers Professional
Responsibility Board
444 Lafayette
St. Paul, Minnesota
55101