RICHARD SANDERS, ATTORNEY, proclaimed the headline of a recent quarter-page advertisement in the Seattle Post-Intelligencer. At the bottom of the copy was a clip-out coupon with check-off boxes (“Family Law,” “Personal Injury,” “Wills and Probate”) so that a potential client could indicate which legal services he wanted to know more about. The advertising trade may have been thrilled by such an unprecedentedly bold pitch (it drew 450 replies), but Sanders’ peers were less enthusiastic. One has already brought an ethics complaint to the Washington state bar asking for disciplinary action against the young (30) lawyer for his affront.
Advertising by attorneys has been a rigidly observed taboo ever since the American Bar Association announced its first national code of ethics in 1908. Originally, the ad ban was intended to help restore dignity to the legal profession, which had been badly tattered by attorneys who put up large billboards or even hawked their services on the open streets with all the restraint of a snake-oil salesman. The prohibition on promotion never came under broad assault until the past year, when it was attacked by consumer groups, Government trustbusters and even some lawyers. So at the A.B.A.’s midyear meeting in Philadelphia last week, advertising—which was not even on the agenda a year ago—was the premier topic. There was no way to avoid it. Last June the U.S. Supreme Court threw out uniform minimum fees set by bar groups and ruled that attorneys—as well as doctors or other members of so-called learned professions—were not automatically exempt from antitrust laws. The same day the court held that the right of an abortion-referral agency to run informational advertisements is protected by the free-speech guarantee. In a talk to a lawyers’ group, Deputy U.S. Attorney General Bruce Wilson spelled out a blunt warning: “An agreement to restrict advertising of legal service could be held to be a violation of the antitrust laws.”
The Consumers Union, for one, agreed and swiftly sued the Virginia and California bar associations, claiming that restrictions against advertising are unlawful restraints of trade that keep the public in the dark about legal fees and lawyer qualifications. The consumer organization, which wants to publish a market guide to lawyers, also charged that the bar groups had violated its First Amendment right to print “important factual information.” At the same time, individual attorneys in New York, Virginia, Wisconsin and Hawaii went to court on their own behalf, arguing, among other things, that without ads a small practitioner was unfairly and illegally prevented from competing with larger, well-established firms. Moreover, the Federal Trade Commission filed a complaint attacking the American Medical Association’s rule against doctors’ ads, a move that seemed to support opponents of the lawyers’ ad ban.
Mostly Unbending. Confronted with all this activity, the A.B.A.’s eight-member ethics committee last December proposed allowing all ads, except those containing “deceptive or unfair statements.” The howls began even before last week’s meeting. Though noticeably more liberal on some issues in recent years, most of the A.B.A.’s 340-member house of delegates are all but unbending on professional style and propriety. The idea of advertising prompts nearly physical revulsion. Wringing his hands nervously, A.B.A. President Lawrence E. Walsh, 64, a corporate attorney from New York City, told his colleagues he personally “recoils” from any ad. But he counseled that the organization was up against “a matter of constitutional law.”
The delegates nonetheless adamantly refused to let lawyers give minimal information even to “bona fide consumer” groups. The old rules were broadened only to allow a listing of the lawyer’s areas of specialization, his office hours, charges for the first consultation and the availability of a full fee estimate upon request. Such information can be offered to the public only in bar-approved directories or a Yellow Pages ad that complies with local bar regulations on language and format. That is likely to be only Round 1 of a continuing battle.
Besides settling the ad issue—at least to their own satisfaction—the A.B.A. delegates in an overwhelming voice vote finally endorsed the 1948 U.N. Convention on Genocide, which the Senate has long refused to ratify. Though the document clearly outlaws only an intentional effort to destroy an entire ethnic or racial group, Southern Democrats and isolationists worried that such charges might be brought unfairly against Americans. Key opponents to the convention in Washington were the A.B.A. and North Carolina Senator Sam J. Ervin Jr. With Ervin retired and the A.B.A. having reversed course, supporters of the convention now hope the Senate will at last ratify the anti-genocide pact.
