Lawyer advertising MEN By Eric Hartman Austin The law of the land on lawyer advertising was fundamentally changed by the U.S. Supreme Court last summer, but you couldn’t tell it from looking at the advertising regulations proposed by the State Bar of Texas. The high court’s decision in Bates v. State Bar of Arizona held that two Phoenix lawyers were constitutionally entitled to advertise their fees for certain routine services such as uncontested divorces, uncontested non-business bankruptcies, name changes, “and the like”in the local press. The court reasoned that the public has a First Amendment right to learn from such “commercial speech” what services individual lawyers provide and what they charge for them. But the ruling left state courts and bar associations free to “reasonably regulate” lawyer ads to prevent misleading come-ons. In Texas, the State Bar’s current understanding of “reasonable regulation” would mean a prohibition of practically any ads except the kind specifically allowed in Bates. Texas lawyers who advertise their fees anywhere except in newspapers or who specify fees for services in any contested matters could be subject to disciplinary action, if the State Supreme Court and members of the bar approve a set of proposed rules in a referendum likely to be held this spring. Although generally consistent with Bates “in its narrowest and most technical sense,” these grudging guidelines, as now drafted, “clearly violate the spirit of the Bates decision and ignore its logic,” which supports no distinction between newspapers and other print media as conduits for the flow of information to consumers of legal services. So says University of Texas law professor David Anderson, a communications law expert, who sees an unhappy resemblance between the State Bar’s answer to this unwelcome constitutional mandate and the segregationist response to school integration rulings. The familiar tactic in both situations, says Anderson, has been to “pay lip service to the fact that the law of the land has changed, but do everything possible to frustrate implementations of the change.” In a September statement addressed to the Bates ruling, the Texas Bar’s directors didn’t even pay lip service. Bates notwithstanding, they affirmed their conviction that “. . . advertising by individual lawyers . . . is something that should be discouraged in the public interest.” The guidelines were plainly drafted according to that cherished view, even though the U.S. Supreme Court emphatically rejected every argumen turn ad horribilum traditionally advanced to support it. It’s only fair to note that the bar’s obduracy may be traceable in part to the indefinite “routine services” test promulgated by the Bates majority. This cautious standard, coupled with explicit approval only of newspaper ads, encourages the same strategy of resistance prompted by the timid remedies that accompanied the court’s early desegregation rulingseven though, just as with those rulings, the majority’s sweeping dismissal of arguments for a longstanding practice all but ensures extension of its holding in future cases. Yet others in the business of drafting and enforcing codes of conduct for lawyers have managed to conform their rules more closely to the logic of the new dispensation on lawyer advertising. The American Bar Association recommends that state bars let lawyers advertise fees for a wide variety of services in print media generally, and suggests that some broadcast ads be permitted as well. The Dallas Bar Association, in local guidelines issued before the State Bar first publicized its proposals in October, opted for a definition of routine services much more inclusive than the State Bar’s, which states flatly: “No matters of a contested or adversary nature are considered routine.” Professor John Sutton of the UT Law School, who played a leading role in drafting the original version of the ABA model code of ethics that’s now been amended in light of Bates. thinks Texas 3G-T: should avoid altogether the “laundry list” approach of specifying routine services for which fee advertising is permissible. He fears such a standard would almost certainly lead to a prohibition of some ads that don’t threaten to mislead the publica result, he suspects, that the court would consider contrary to the spirit of Bates. He cited, as an example, an ad honestly stating hourly rates in cases where total fees may be uncertain; such information, though useful to consumers, would be barred under a strict “routine services” standard. Sutton prefers regulations like those the Federal Trade Commission imposes on businessmen generally, which simply punish advertisers for making false or fraudulent claims. Sutton adds, however, that he’s probably in the minority among Texas lawyers on this issue, and that the bar’s restrictive , recommendations are apparently tailored to please the generally conservative majority. They’re likely to oppose more permissive changes, he says, even though they’ve had some advertising for generations in the form of lawyer directories, business cards and telephone listings. There’s a chance that less benighted rules may be fashioned by the Texas Supreme Court, which can modify the bar’s proposals before they’re put to a vote of the state’s 30,000 lawyers. Associate Justice Price Daniel Sr., who serves as a middleman between the State Bar and his colleagues on the court, says that the THE TEXAS OBSERVER 7
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