433 U.S. 350 (1977), 76-316, Bates v. State Bar of Arizona

Docket Nº:No. 76-316
Citation:433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810
Party Name:Bates v. State Bar of Arizona
Case Date:June 27, 1977
Court:United States Supreme Court
 
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Page 350

433 U.S. 350 (1977)

97 S.Ct. 2691, 53 L.Ed.2d 810

Bates

v.

State Bar of Arizona

No. 76-316

United States Supreme Court

June 27, 1977

Argued January 18, 1977

APPEAL FROM THE SUPREME COURT OF ARIZONA

Syllabus

Appellants, who are licensed attorneys and members of the Arizona State Bar, were charged in a complaint filed by the State Bar's president with violating the State Supreme Court's disciplinary rule, which prohibits attorneys from advertising in newspapers or other media. The complaint was based upon a newspaper advertisement placed by appellants for their "legal clinic," stating that they were offering "legal services at very reasonable fees," and listing their fees for certain services, namely, uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name. The Arizona Supreme Court upheld the conclusion of a bar committee that appellants had violated the rule, having rejected appellants' claims that the rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition, and that it infringed appellants' First Amendment rights.

Held:

1. The restraint upon attorney advertising imposed by the Supreme Court of Arizona wielding the power of the State over the practice of law is not subject to attack under the Sherman Act. Parker v. Brown, 317 U.S. 341, followed; Goldfarb v. Virginia State Bar, 421 U.S. 773; Cantor v. Detroit Edison Co., 428 U.S. 579, distinguished. Pp. 359-363.

2. Commercial speech, which serves individual and societal interests in assuring informed and reliable decisionmaking, is entitled to some First Amendment protection, Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, and the justifications advanced by appellee are inadequate to support the suppression of all advertising by attorneys. Pp. 363-384.

(a) This case does not involve any question concerning in-person solicitation or advertising as to the quality of legal services, but only the question whether lawyers may constitutionally advertise the prices at which certain routine services will be performed. Pp. 366-367.

(b) The belief that lawyers are somehow above "trade" is an anachronism, and for a lawyer to advertise his fees will not undermine true professionalism. Pp. 368-372.

(c) Advertising legal services is not inherently misleading. Only routine services lend themselves to advertising, and, for such services, fixed rates can be meaningfully established, as the Arizona State Bar's own Legal Services Program demonstrates. Although a client may not

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know the detail involved in a given task, he can identify the service at the level of generality to which advertising lends itself. Though advertising does not provide a complete foundation on which to select an attorney, it would be peculiar to deny the consumer at least some of the relevant information needed for an informed decision on the ground that the information was not complete. Pp. 372-375.

(d) Advertising, the traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange, may well benefit the administration of justice. Pp. 375-377.

(e) It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer, and may well aid new attorneys in entering the market. Pp. 377-378.

(f) An attorney who is inclined to cut quality will do so regardless of the rule on advertising, the restraints on which are an ineffective deterrent to shoddy work. Pp. 378-379.

(g) Undue enforcement problems need not be anticipated, and it is at least incongruous for the opponents of advertising to extol the virtues of the legal profession while also asserting that, through advertising, [97 S.Ct. 2693] lawyers will mislead their clients. P. 379.

3. The First Amendment overbreadth doctrine, which represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court, is inapplicable to professional advertising, a context where it is not necessary to further its intended objective, cf. Bigelow v. Virginia, 421 U.S. 809, 817-818, and appellants must therefore demonstrate that their specific conduct was constitutionally protected. Pp. 379-381.

4. On this record, appellants' advertisement (contrary to appellee's contention) is not misleading, and falls within the scope of First Amendment protection. Pp. 381-382.

(a) The term "legal clinic" would be understood to refer to an operation like appellants' that is geared to provide standardized and multiple services. Pp. 381-382.

(b) The advertisement's claim that appellants offer services at "very reasonable" prices is not misleading. Appellants' advertised fee for an uncontested divorce, which was specifically cited by appellee, is in line with customary charges in the area. P. 382.

(c) Appellants' failure to disclose that a name change might be accomplished by the client without an attorney's aid was not misleading, since the difficulty of performing the task is not revealed, and since most

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legal services may be performed legally by the citizen for himself. See Faretta v. California, 422 U.S. 806. P. 382.

113 Ariz. 394, 555 P.2d 640, affirmed in part and reversed in part.

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined, and in Parts I and II of which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., filed an opinion concurring in part and dissenting in part, post, p. 386. POWELL, J., filed an opinion concurring in part and dissenting in part, in which STEWART, J., joined, post, p. 389. REHNQUIST, J., filed an opinion dissenting in part, post, p. 404.

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BLACKMUN, J., lead opinion

MR JUSTICE BLACKMUN delivered the opinion of the Court.

As part of its regulation of the Arizona Bar, the Supreme Court of that State has imposed and enforces a disciplinary rule that restricts advertising by attorneys. This case presents two issues: whether §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, forbid such state regulation, and whether the operation of the rule violates the First Amendment, made applicable to the States through the Fourteenth.1

I

Appellants John R. Bates and Van O'Steen are attorneys licensed to practice law in the State of Arizona.2 As such, they are members of the appellee, the State Bar of Arizona.3

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After admission to the bar in 1972, appellants worked as attorneys with the Maricopa County Legal Aid Society. App. 221.

[97 S.Ct. 2694] In March, 1974, appellants left the Society and opened a law office, which they call a "legal clinic," in Phoenix. Their aim was to provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid. Id. at 75. In order to achieve this end, they would accept only routine matters, such as uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name, for which costs could be kept down by extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures. More complicated cases, such as contested divorces, would not be accepted. Id. at 97. Because appellants set their prices so as to have a relatively low return on each case they handled, they depended on substantial volume. Id. at 122-123.

After conducting their practice in this manner for two years, appellants concluded that their practice and clinical concept could not survive unless the availability of legal services at low cost was advertised and, in particular, fees were advertised. Id. at 120-123. Consequently, in order to generate the necessary flow of business, that is, "to attract clients," id. at 121; Tr. of Oral Arg. 4, appellants, on February 22, 1976, place an advertisement (reproduced in the Appendix to this opinion [omitted]) in the Arizona Republic, a daily newspaper of general circulation in the Phoenix metropolitan area. As may be seen, the advertisement stated that appellants were offering "legal services at very reasonable fees," and listed their fees for certain services.4

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Appellants concede that the advertisement constituted a clear violation of Disciplinary Rule 2-101(b), incorporated in Rule 29(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat., p. 26 (Supp. 1976). The disciplinary rule provides in part:

(B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.5

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[97 S.Ct. 2695] Upon the filing of a complaint initiated by the president of the State Bar, App. 350, a hearing was held before a three-member Special Local Administrative Committee, as prescribed by Arizona Supreme Court Rule 33. App. 16. Although the committee took the position that it could not consider an attack on the validity of the rule, it allowed the parties to develop a record on which such a challenge could be based. The committee recommended that each of the appellants be suspended from the practice of law for not less than six months. Id. at 482. Upon further review by the Board of Governors of the State Bar, pursuant to the Supreme Court's Rule 36, the Board recommended only a one-week suspension for each appellant, the weeks to run consecutively. App. 486-487.

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