Bates v. State Bar of Arizona
In Bates v. State Bar of Arizona,[1] 433 U.S. 350 (1977), the U.S. Supreme Court held that enforcement of a ban on attorney advertising would violate the First and Fourteenth Amendment rights of attorneys seeking to advertise the fees they charged for certain routine legal services.
Background of the Case
After graduation from law school, Bates and O'Steen worked for the Maricopa County (Phoenix, Arizona area) Legal Aid Society, before deciding to enter into private practice as a partnership. Their practice (which they titled as a "legal clinic") would serve people who needed routine and uncomplicated legal assistance but who could not afford the fees of a regular attorney, yet had incomes too high to be served by the Legal Aid Society.
In order to make their practice successful, they established a model which required two main features: 1) extensive use of paralegals, automated equipment, and standardized forms and procedures, and 2) accepting only "routine cases" (such as uncontested divorces and legal name changes) which fit into the model, while refusing cases (such as contested divorces) which would not. The model required that prices be set at a reasonable rate, which would not generate a large profit on each case, and therefore it required a large volume of business to work.
Two years into their practice, the partners determined that only by advertising their services, and specifically their rates, would the model truly be successful. However, the State Bar of Arizona had a rule which prohibited advertising by attorneys. Around that time, the American Bar Association amended its ethics rules (which are advisory only and not binding on states) to allow limited advertising by attorneys, but only in telephone directories and not newspapers. In addition, the Supreme Court had ruled in a case involving pharmacies (Virginia State Pharmacy Board v. Virginia Citizens Consumer Council) which rejected a ban on advertising prices for prescription drugs. Based on those developments, the partners placed an ad in the Arizona Republic advertising their services and stating fees for certain types of legal matters.[2]
Not surprisingly the State Bar filed a complaint against the partners for their actions; the partners openly admitted their purpose was to challenge the constitutionality of the advertising ban. A special committee took the position that it could not consider a challenge to the rule, but allowed both parties to develop a record on which a challenge could be based. The committee recommended a six-month suspension for Bates and O'Steen, which the Board of Governors reduced to a mere one week to be served consecutively (thus allowing one partner to run the office while the other was serving the suspension).
The partners challenged the decision to the Arizona Supreme Court, arguing that the ban violated both the Sherman Act against limiting competition, and the partners' First Amendment right to freedom of speech, as well as challenging the rule on equal protection and vagueness grounds and asserted that the disciplinary procedures violated due process. The Court ruled against the partners on all counts but reduced the punishment to a mere censure.[3] As expected, the partners then appealed to the United States Supreme Court on the first two claims above.
Decision of the Supreme Court
In a fragmented decision, the Court ruled unanimously against the partners on their Sherman Act claims, but ruled 5–4 in favor of their First Amendment claims.
Writing for the majority, Justice Blackmum (joined by Justices Brennan, White, Marshall, and Stevens) upheld the Arizona court's ruling on the Sherman Act claims, arguing that because the actions were taken by a sovereign (the Arizona Supreme Court made the rules that the State Bar merely enforces). they were exempt from the Sherman Act. However, Justice Blackmun argued that a complete ban on advertising violated the First Amendment, citing the Virginia Pharmacy case previously decided. The opinion recognized that there could be reasonable restrictions placed on the advertising, but that was a case for another day.
Justices Powell and Stewart concurred with the Sherman Act holding, but dissented from the First Amendment holding, arguing that although the Court's "opinion profess to be framed narrowly, and its reach is subject to future clarification, the holding is explicit and expansive with respect to the advertising of undefined 'routine legal services'", which result "is neither required by the First Amendment, nor in the public interest". However, Justice Powell agreed that some restrictions could be Constitutional.
Chief Justice Burger also concurred with the Sherman Act holding, but dissented from the First Amendment holding, arguing that the issues involved in the Virginia Pharmacy case (involving "the advertisement of standardized, prepackaged, name-brand drugs") differ greatly from advertising legal services, which by nature differ from client to client.
Justice Rehnquist also concurred with the Sherman Act holding, but dissented from the First Amendment holding, arguing that contrary to Justice Powell's opinion, there would likely be no constitutionally-protected restrictions on advertising now that the Court has ruled they were protected by the First Amendment.
References
- ↑ The actual title of the case is John R. Bates and Van O'Steen v. State Bar of Arizona, but in legal literature is usually shortened as shown.
- ↑ A copy of that advertisement can be found here: Advertisement for Bates & O'Steen Legal Clinic, The Arizona Republic, February 22, 1976, p. A-21
- ↑ The final ruling was a plurality opinion by two of the five members. A third member concurred with the ruling but dissented on the reduction in punishment. A fourth member wrote a concurring opinion agreeing "with much of the law and many of the comments expressed by the majority". A fifth member dissented; his opinion was quoted in part by the U.S. Supreme Court in its opinion.