APPEAL FROM THE SUPREME COURT OF ARIZONA
No. 76-316 Argued: January 18, 1977 --- Decided: June 27, 1977
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. [n1]
Appellants John R. Bates and Van O'Steen are attorneys licensed to practice law in the State of Arizona. [n2] As such, they are members of the appellee, the State Bar of Arizona. [n3] [p354] After admission to the bar in 1972, appellants worked as attorneys with the Maricopa County Legal Aid Society. App. 221.
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. [n4] [p355]
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. [n5] [p356]
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.
Appellants, as permitted by the Supreme Court's Rule 37, then sought review in the Supreme Court of Arizona, arguing, among other things, that the disciplinary rule violated §§ 1 and 2 of the Sherman Act because of its tendency to limit competition, and that the rule infringed their First Amendment rights. The court rejected both claims. In re Bates, 113 Ariz. 394, 555 P.2d 640 (1976).The plurality [n6] may have viewed with some scepticism the claim that a restraint on advertising might have an adverse effect on competition. [n7] But, even if the rule might otherwise violate the [p357] Act, the plurality concluded that the regulation was exempt from Sherman Act attack because the rule "is an activity of the State of Arizona acting as sovereign." Id. at 39, 555 P.2d at 643. The regulation thus was held to be shielded from the Sherman Act by the state action exemption of Parker v. Brown, 317 U.S. 341 (1943).
Turning to the First Amendment issue, the plurality noted that restrictions on professional advertising have survived constitutional challenge in the past, citing, along with other cases, Williamson v. Lee Optical Co., 348 U.S. 483 (1955), and Semler v. Dental Examiners, 294 U.S. 608 (1935). [n8] Although recognizing that Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976), and Bigelow v. Virginia, 421 U.S. 809 (1975), held that commercial speech was entitled to certain protection under the First Amendment, the plurality focused on passages in those opinions acknowledging that special considerations might bear on the advertising of professional services by lawyers. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 773 n. 25; id. at 773-775 (concurring opinion); Bigelow v. Virginia, 421 U.S. at 825 n. 10. The plurality apparently was of the view that the older decisions dealing with professional advertising survived these recent cases unscathed, and held that Disciplinary Rule 2-101(b) passed First Amendment [p358] muster. [n9] Because the court, in agreement with the Board of Governors, felt that appellants' advertising "was done in good faith to test the constitutionality of DR 2-101(b)," it reduced the sanction to censure only. [n10] 113 Ariz. at 400, 555 P.2d at 646.
Of particular interest here is the opinion of Mr. Justice Holohan in dissent. In his view, the case should have been framed in terms of "the right of the public, as consumers and citizens, to know about the activities of the legal profession," id. at 402, 555 P.2d at 648, rather than as one involving merely the regulation of a profession. Observed in this light, he felt that the rule performed a substantial disservice to the public:
Obviously the information of what lawyers charge is important for private economic decisions by those in need of legal services. Such information is also helpful, perhaps indispensable, to the formation of an intelligent opinion by the public on how well the legal system is working and whether it should be regulated or even altered. . . . The rule at issue prevents access to such information by the public.
Id. at 402 403, 555 P.2d at 648-649. Although the dissenter acknowledged that some types of advertising might cause confusion and deception, he felt that the remedy was to ban that form, rather than all advertising. Thus, despite his "personal dislike of the concept of advertising by attorneys," id. at 402, 555 P.2d at 648, he found the ban unconstitutional.
We noted probable jurisdiction. 429 U.S. 813 (1976). [p359]
The Sherman Act
In Parker v. Brown, 317 U.S. 341 (1943), this Court held that the Sherman Act was not intended to apply against certain state action. See also Olsen v. Smith, 195 U.S. 332, 311 345 (1904). In Parker, a raisin producer-packer brought suit against California officials challenging a state program designed to restrict competition among growers, and thereby to maintain prices in the raisin market. The Court held that the State, "as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." 317 U.S. at 352. Appellee argues, and the Arizona Supreme Court held, that the Parker exemption also bars the instant Sherman Act claim. We agree.
Of course, Parker v. Brown has not been the final word on the matter. In two recent cases, the Court has considered the state action exemption to the Sherman Act and found it inapplicable for one reason or another. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975); Cantor v. Detroit Edison Co., 428 U.S. 579 (1976). Goldfarb and Cantor, however, are distinguishable, and their reasoning supports our conclusion here.
In Goldfarb, we held that § 1 of the Sherman Act was violated by the publication of a minimum fee schedule by a county bar association and by its enforcement by the State Bar. The schedule and its enforcement mechanism operated to create a rigid price floor for services, and thus constituted a classic example of price-fixing. Both bar associations argued that their activity was shielded by the state action exemption. This Court concluded that the action was not protected, emphasizing that
we need not inquire further into the state action question, because it cannot fairly be said that the State of Virginia, through its Supreme Court Rules, required the anticompetitive activities of either respondent.
421 U.S. at 790. In the instant case, by contrast, the challenged [p360] restraint is the affirmative command of the Arizona Supreme Court under its Rules 27(a) and 29(a) and its Disciplinary Rule 101(b). That court is the ultimate body wielding the State's power over the practice of law, see Ariz.Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is "compelled by direction of the State acting as a sovereign." 421 U.S. at 791. [n11]
Appellants seek to draw solace from Cantor. The defendant in that case, an electric utility, distributed light bulbs to its residential customers without additional charge, including the cost in its state-regulated utility rates. The plaintiff, a retailer who sold light bulbs, brought suit, claiming that the utility was using its monopoly power in the distribution of electricity to restrain competition in the sale of bulbs. The Court held that the utility could not immunize itself from Sherman Act attack by embodying its challenged practices in a tariff approved by a state commission. Since the disciplinary rule at issue here is derived from the Code of Professional Responsibility of the American Bar Association, [n12] appellants argue by analogy to Cantor that no immunity should result from the bar's success in having the Code adopted by the State. They also assert that the interest embodied in the Sherman Act must prevail over the state [p361] interest in regulating the bar. See 428 U.S. at 595. Particularly is this the case, they claim, because the advertising ban is not tailored so as to intrude upon the federal interest to the minimum extent necessary. See id. at 596 n. 34, and 597.
We believe, however, that the context in which Cantor arose is critical. First, and most obviously, Cantor would have been an entirely different case if the claim had been directed against a public official or public agency, rather than against a private party. [n13] Here, the appellants' claims are against the State. The Arizona Supreme Court is the real party in interest; it adopted the rules, and it is the ultimate trier of fact and law in the enforcement process. In re Wilson, 106 Ariz. 34, 470 P.2d 441 (1970). Although the State Bar plays a part in the enforcement of the rules, its role is completely defined by the court; the appellee acts as the agent of the court under its continuous supervision.
Second, the Court emphasized in Cantor that the State had no independent regulatory interest in the market for light bulbs. 428 U.S. at 584-585; id. at 604-605, 612-614 (concurring opinions). There was no suggestion that the bulb program was justified by flaws in the competitive market or was a response to health or safety concerns. And an exemption for the program was not essential to the State's regulation of electric utilities. In contrast, the regulation of the activities of the bar is at the core of the State's power to protect the public. Indeed, this Court in Goldfarb acknowledged that
[t]he interest of the States in regulating lawyers is especially great, since lawyers are essential to the [p362] primary governmental function of administering justice, and have historically been "officers of the courts."
421 U.S. at 792. See Cohen v. Hurley, 366 U.S. 117, 123-124 (1961). [n14] More specifically, controls over solicitation and advertising by attorneys have long been subject to the State's oversight. [n15] Federal interference with a State's traditional regulation of a profession is entirely unlike the intrusion the Court sanctioned in Cantor. [n16]
Finally, the light bulb program in Cantor was instigated by the utility with only the acquiescence of the state regulatory commission. The State's incorporation of the program into the tariff reflected its conclusion that the utility was authorized to employ the practice if it so desired. See 428 U.S. at 594, and n. 31. The situation now before us is entirely different. The disciplinary rules reflect a clear articulation of the State's policy with regard to professional behavior. Moreover, as the instant case shows, the rules are subject to pointed reexamination by the policymaker -- the Arizona Supreme Court -- in enforcement proceedings. Our concern that federal policy is being unnecessarily and inappropriately subordinated to state policy is reduced in such a situation; we deem it significant that the state policy is so clearly and affirmatively expressed and that the State's supervision is so active. [p363]
We conclude that the Arizona Supreme Court's determination that appellants' Sherman Act claim is barred by the Parker v. Brown exemption must be affirmed.
III The First Amendment
Last Term, in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976), the Court considered the validity under the First Amendment of a Virginia statute declaring that a pharmacist was guilty of "unprofessional conduct" if he advertised prescription drug prices. The pharmacist would then be subject to a monetary penalty or the suspension or revocation of his license. The statute thus effectively prevented the advertising of prescription drug price information. We recognized that the pharmacist who desired to advertise did not wish to report any particularly newsworthy fact or to comment on any cultural, philosophical, or political subject; his desired communication was characterized simply: "‘I will sell you the X prescription drug at the Y price.'" Id. at 761. Nonetheless, we held that commercial speech of that kind was entitled to the protection of the First Amendment.
Our analysis began, ibid., with the observation that our cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 U.S. 1 (1976); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); in a form that is sold for profit, Smith v. California, 361 U.S. 147 (1959); Murdock v. Pennsylvania, 319 U.S. 105 (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut, 310 U.S. 296 (1940). If commercial speech is to be distinguished, it "must be distinguished by its content." 425 U.S. at 761. But a consideration of competing interests reinforced our view that such speech should not be withdrawn [p364] from protection merely because it proposed a mundane commercial transaction. Even though the speaker's interest is largely economic, the Court has protected such speech in certain contexts. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); Thornhill v. Alabama, 310 U.S. 88 (1940). The listener's interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. See Bigelow v. Virginia, 421 U.S. 809 (1975). And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. See FTC v. Procter & Gamble Co., 386 U.S. 568, 603-604 (1967) (Harlan, J., concurring). In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking. 425 U.S. at 761-765. Arrayed against these substantial interests in the free flow of commercial speech were a number of proffered justifications for the advertising ban. Central among them were claims that the ban was essential to the maintenance of professionalism among licensed pharmacists. It was asserted that advertising would create price competition that might cause the pharmacist to economize at the customer's expense. He might reduce or eliminate the truly professional portions of his services: the maintenance and packaging of drugs so as to assure their effectiveness, and the supplementation on occasion of the prescribing physician's advice as to use. Moreover, it was said, advertising would cause consumers to price-shop, thereby undermining the pharmacist's effort to monitor the drug use of a regular customer so as to ensure that the prescribed drug would not provoke an allergic reaction or be incompatible with another substance the customer was [p365] consuming. Finally, it was argued that advertising would reduce the image of the pharmacist as a skilled and specialized craftsman -- an image that was said to attract talent to the profession and to reinforce the good habits of those in it -- to that of a mere shopkeeper. Id. at 766-768.
Although acknowledging that the State had a strong interest in maintaining professionalism among pharmacists, this Court concluded that the proffered justifications were inadequate to support the advertising ban. High professional standards were assured in large part by the close regulation to which pharmacists in Virginia were subject. Id. at 768. And we observed that,
on close inspection it is seen that the State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance.
Id. at 769. But we noted the presence of a potent alternative to this "highly paternalistic" approach:
That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication, rather than to close them.
Id. at 770. The choice between the dangers of suppressing information and the dangers arising from its free flow was seen as precisely the choice "that the First Amendment makes for us." Ibid. See also Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 (1977).
We have set out this detailed summary of the Pharmacy opinion because the conclusion that Arizona's disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it. Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance. Because of the possibility, however, that the differences among professions might bring different constitutional considerations into play, we specifically reserved judgment as to other professions. [n17] [p366]
In the instant case, we are confronted with the arguments directed explicitly toward the regulation of advertising by licensed attorneys.
The issue presently before us is a narrow one. First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false. Appellee does not suggest, nor do we perceive, that appellants' advertisement contained claims, extravagant or otherwise, as to the quality of services. Accordingly, we leave that issue for another day. Second, we also need not resolve the problems associated with in-person solicitation of clients at the hospital room or the accident site, or in any other situation that breeds undue influence -- by attorneys or their agents or "runners." Activity of that kind might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue also is not before us. Third, we note that appellee's criticism of advertising by attorneys does not apply with much force to some of the basic factual content of advertising: information as to the attorney's name, address, and telephone number, office hours, and the like. The American Bar Association itself has a provision in its current Code of Professional Responsibility that would allow the disclosure of such information, and more, [p367] in the classified section of the telephone directory. DR 2-102(A)(6) (1976). [n18] We recognize, however, that an advertising diet limited to such spartan fare would provide scant nourishment.
The heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which [p368] certain routine services will be performed. Numerous justifications are proffered for the restriction of such price advertising. We consider each in turn:
1. The Adverse Effect on Professionalism. Appellee places particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that price advertising will bring about commercialization, which will undermine the attorney's sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession's service orientation, and irreparably damage the delicate balance between the lawyer's need to earn and his obligation selflessly to serve. Advertising is also said to erode the client's trust in his attorney: once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client's welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession.
We recognize, of course, and commend the spirit of public service with which the profession of law is practiced and to which it is dedicated. The present Members of this Court, licensed attorneys all, could not feel otherwise. And we would have reason to pause if we felt that our decision today would undercut that spirit. But we find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception. [n19] And rare is the client, moreover, [p369] even one of modest means, who enlists the aid of an attorney with the expectation that his services will be rendered free of charge. See B. Christensen, Lawyers for People of Moderate Means 152-153 (1970). In fact, the American Bar Association advises that an attorney should reach "a clear agreement with his client as to the basis of the fee charges to be made," and that this is to be done "[a]s soon as feasible after a lawyer has been employed." Code of Professional Responsibility EC 19 (1976). If the commercial basis of the relationship is to be promptly disclosed on ethical grounds, once the client is in the office, it seems inconsistent to condemn the candid revelation of the same information before he arrives at that office.
Moreover, the assertion that advertising will diminish the attorney's reputation in the community is open to question. Bankers and engineers advertise, [n20] and yet these professions [p370] are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. [n21] The absence of advertising may be seen to reflect the profession's failure to reach out and serve the community: studies reveal that many persons do not obtain counsel, even when they perceive a need, because of the feared price of services [n22] or because of an inability to locate a competent attorney. [n23] Indeed, cynicism [p371] with regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients.
It appears that the ban on advertising originated as a rule of etiquette, and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on "trade" as unseemly. See H. Drinker, Legal Ethics 5, 210-211 (1953). [n24] Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. Id. at 211. But habit and tradition are not, in themselves, an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow "above" [p372] trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.
2. The Inherently Misleading Nature of Attorney Advertising. It is argued that advertising of legal services inevitably will be misleading (a) because such services are so individualized with regard to content and quality as to prevent informed comparison on the basis of an advertisement, (b) because the consumer of legal services is unable to determine in advance just what services he needs, and (c) because advertising by attorneys will highlight irrelevant factors and fail to show the relevant factor of skill.
We are not persuaded that restrained professional advertising by lawyers inevitably will be misleading. Although many services performed by attorneys are indeed unique, it is doubtful that any attorney would or could advertise fixed prices for services of that type. [n25] The only services that lend themselves to advertising are the routine ones: the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like -- the very services advertised by appellants. [n26] Although the precise service demanded in each task may vary slightly, and although legal services are not fungible, these facts do not make advertising [p373] misleading so long as the attorney does the necessary work at the advertised price. [n27] The argument that legal services are so unique that fixed rates cannot meaningfully be established is refuted by the record in this case: the appellee State Bar itself sponsors a Legal Services Program in which the participating attorneys agree to perform services like those advertised by the appellants at standardized rates. App. 459-478. Indeed, until the decision of this Court in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), the Maricopa County Bar Association apparently had a schedule of suggested minimum fees for standard legal tasks. App. 355. We thus find of little force the assertion that advertising is misleading because of an inherent lack of standardization in legal services. [n28]
The second component of the argument -- that advertising [p374] ignores the diagnostic role -- fares little better. [n29] It is unlikely that many people go to an attorney merely to ascertain if they have a clean bill of legal health. Rather, attorneys are likely to be employed to perform specific tasks. Although the client may not know the detail involved in performing the task, he no doubt is able to identify the service he desires at the level of generality to which advertising lends itself.
The third component is not without merit: advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision. The alternative -- the prohibition of advertising -- serves only to restrict the information that flows to consumers. [n30] Moreover, the argument assumes that the public [p375] is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 769-770. Although, of course, the bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, the preferred remedy is more disclosure, rather than less. If the naivete of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective.
3. The Adverse Effect on the Administration of Justice. Advertising is said to have the undesirable effect of stirring up litigation. [n31] The Judicial machinery is designed to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling [p376] societal repose. There is even a suggestion of barratry. See, e.g., Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U.Chi.L.Rev. 674, 675-676 (1958).
But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits. Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action. [n32] As the bar acknowledges, "the middle 70% of our population is not being reached or served adequately by the legal profession." ABA, Revised Handbook on Prepaid Legal Services 2 (1972). [n33] Among the reasons for this underutilization is fear of the cost, and an inability to locate a suitable lawyer. See nn. 22 and 23, supra. Advertising can help to solve this acknowledged problem: advertising is the traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly [p377] for the not-quite-poor and the unknowledgeable. A rule allowing restrained advertising would be in accord with the bar's obligation to "facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available."
ABA Code of Professional Responsibility EC 2-1 (1976).
4 The Undesirable Economic Effects of Advertising. It is claimed that advertising will increase the overhead costs of the profession, and that these costs then will be passed along to consumers in the form of increased fees. Moreover, it is claimed that the additional cost of practice will create a substantial entry barrier, deterring or preventing young attorneys from penetrating the market and entrenching the position of the bar's established members.
These two arguments seem dubious, at best. Neither distinguishes lawyers from others, see Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 768, and neither appears relevant to the First Amendment. The ban on advertising serves to increase the difficulty of discovering the lowest cost seller of acceptable ability. As a result, to this extent attorneys are isolated from competition, and the incentive to price competitively is reduced. Although it is true that the effect of advertising on the price of services has not been demonstrated, there is revealing evidence with regard to products; where consumers have the benefit of price advertising, retail prices often are dramatically lower than they would be without advertising. [n34] It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer. [n35] [p378]
The entry barrier argument is equally unpersuasive. In the absence of advertising, an attorney must rely on his contacts with the community to generate a flow of business. In view of the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys. Consideration of entry barrier problems would urge that advertising be allowed so as to aid the new competitor in penetrating the market
5. The Adverse Effect of Advertising on the Quality of Service. It is argued that the attorney may advertise a given "package" of service at a set price, and will be inclined to provide, by indiscriminate use, the standard package regardless of whether it fits the client's needs.
Restraints on advertising, however, are an ineffective way of deterring shoddy work. An attorney who is inclined to cut quality will do so regardless of the rule on advertising. And the advertisement of a standardized fee does not necessarily mean that the services offered are undesirably standardized. Indeed, the assertion that an attorney who advertises a standard fee will cut quality is substantially undermined by the fixed fee schedule of appellee's own prepaid Legal Services Program. Even if advertising leads to the [p379] creation of "legal clinics" like that of appellants' -- clinics that emphasize standardized procedures for routine problems -- it is possible that such clinics will improve service by reducing the likelihood of error.
6. The Difficulties of Enforcement. Finally, it is argued that the wholesale restriction is justified by the problems of enforcement if any other course is taken. Because the public lacks sophistication in legal matters, it may be particularly susceptible to misleading or deceptive advertising by lawyers. After-the-fact action by the consumer lured by such advertising may not provide a realistic restraint because of the inability of the layman to assess whether the service he has received meets professional standards. Thus, the vigilance of a regulatory agency will be required. But because of the numerous purveyors of services, the overseeing of advertising will be burdensome.
It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point and, at another, to assert that its members will seize the opportunity to mislead and distort. We suspect that, with advertising, most lawyers will behave as they always have: they will abide by their solemn oaths to uphold the integrity and honor of their profession and of the legal system. For every attorney who overreaches through advertising, there will be thousands of others who will be candid and honest and straightforward. And, of course, it will be in the latter's interest, as in other cases of misconduct at the bar, to assist in weeding out those few who abuse their trust.
In sum, we are not persuaded that any of the proffered justifications rise to the level of an acceptable reason for the suppression of all advertising by attorneys.
In the usual case involving a restraint on speech, a showing that the challenged rule served unconstitutionally to suppress [p380] speech would end our analysis. In the First Amendment context, the Court has permitted attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected. See, e.g., Bigelow v. Virginia, 421 U.S. at 815-816; Gooding v. Wilson, 405 U.S. 518, 521-522 (1972); Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). Having shown that the disciplinary rule interferes with protected speech, appellants ordinarily could expect to benefit regardless of the nature of their acts.
The First Amendment overbreadth doctrine, however, 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. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); United States v. Raines, 362 U.S. 17, 21 (1960); Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). The reason for the special rule in First Amendment cases is apparent: an overbroad statute might serve to chill protected speech. First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute. See NAACP v. Button, 371 U.S. 415, 433 (1963). Indeed, such a person might choose not to speak because of uncertainty whether his claim of privilege would prevail if challenged. The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted.
But the justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context. As was acknowledged in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 771 n. 24, there [p381] are "common sense differences" between commercial speech and other varieties. See also id. at 775-781 (concurring opinion). Since advertising is linked to commercial wellbeing, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation. See id. at 771-772, n. 24. Moreover, concerns for uncertainty in determining the scope of protection are reduced; the advertiser seeks to disseminate information about a product or service that he provides, and presumably he can determine more readily than others whether his speech is truthful and protected. Ibid. Since overbreadth has been described by this Court as "strong medicine," which "has been employed . . . sparingly and only as a last resort," Broadrick v. Oklahoma, 413 U.S. at 613, we decline to apply it to professional advertising, a context where it is not necessary to further its intended objective. Cf. Bigelow v. Virginia, 421 U.S. at 817-818.
Is, then, appellants' advertisement outside the scope of basic First Amendment protection? Aside from general claims as to the undesirability of any advertising by attorneys, a matter considered above, appellee argues that appellants' advertisement is misleading, and hence unprotected, in three particulars: (a) the advertisement makes reference to a "legal clinic," an allegedly undefined term; (b) the advertisement claims that appellants offer services at "very reasonable" prices, and, at least with regard to an uncontested divorce, the advertised price is not a bargain; and (c) the advertisement does not inform the consumer that he may obtain a name change without the services of an attorney. Tr. of Oral Arg. 56-57. On this record, these assertions are unpersuasive. We suspect that the public would readily understand the term "legal clinic" -- if, indeed, it focused on the term at all -- to refer to an operation like that of appellants' that is geared to provide standardized and multiple services. In fact, in his deposition, the president of the State Bar of Arizona observed [p382] that there was a committee of the bar "exploring the ways in which the legal clinic concept can be properly developed." App. 375; see id. at 401. See also id. at 84-85 (testimony of appellants). And the clinical concept in the sister profession of medicine surely by now is publicly acknowledged and understood.
As to the cost of an uncontested divorce, appellee's counsel stated at oral argument that this runs from $150 to $300 in the area. Tr. of Oral Arg. 58. Appellants advertised a fee of $175 plus a $20 court filing fee, a rate that seems "very reasonable" in light of the customary charge. Appellee's own Legal Services Program sets the rate for an uncontested divorce at $250. App. 473. Of course, advertising will permit the comparison of rates among competitors, thus revealing if the rates are reasonable.
As to the final argument -- the failure to disclose that a name change might be accomplished by the client without the aid of an attorney -- we need only note that most legal services may be performed legally by the citizen for himself. See Faretta v. California, 422 U.S. 806 (1975); ABA Code of Professional Responsibility EC 7 (1976). The record does not unambiguously reveal some of the relevant facts in determining whether the nondisclosure is misleading, such as how complicated the procedure is and whether the State provides assistance for laymen. The deposition of one appellant, however, reflects that, when he ascertained that a name change required only the correction of a record or the like, he frequently would send the client to effect the change himself. [n36] App. 112.
We conclude that it has not been demonstrated that the advertisement at issue could be suppressed. [p383]
In holding that advertising by attorneys may not be subjected to blanket suppression, and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way. We mention some of the clearly permissible limitations on advertising not foreclosed by our holding.
Advertising that is false, deceptive, or misleading, of course, is subject to restraint. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 771-772, and n. 24. Since the advertiser knows his product and has a commercial interest in its dissemination, we have little worry that regulation to assure truthfulness will discourage protected speech. Id. at 771-772, n. 24. And any concern that strict requirements for truthfulness will undesirably inhibit spontaneity seems inapplicable, because commercial speech generally is calculated. Indeed, the public and private benefits from commercial speech derive from confidence in its accuracy and reliability. Thus, the leeway for untruthful or misleading expression that has been allowed in other contexts has little force in the commercial arena. Compare Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-341 (1974), and Cantwell v. Connecticut, 310 U.S. at 310, with NLRB v. Gissel Packing Co., 395 U.S. at 618. In fact, because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising. [n37] For example, advertising claims as to the quality of services -- a matter we do not address today -- are not susceptible of measurement or verification; accordingly, such claims may be so likely to be [p384] misleading as to warrant restriction. Similar objections might justify restraints on in-person solicitation. We do not foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the consumer is not misled. In sum, we recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly.
As with other varieties of speech, it follows as well that there may be reasonable restrictions on the time, place, and manner of advertising. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 771. Advertising concerning transactions that are themselves illegal obviously may be suppressed. See Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388 (1973). And the special problems of advertising on the electronic broadcast media will warrant special consideration. Cf. Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (DC 1971), summarily aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972).
The constitutional issue in this case is only whether the State may prevent the publication in a newspaper of appellants' truthful advertisement concerning the availability and terms of routine legal services. We rule simply that the flow of such information may not be restrained, and we therefore hold the present application of the disciplinary rule against appellants to be violative of the First Amendment.
The judgment of the Supreme Court of Arizona is therefore affirmed in part and reversed in part.
It is so ordered. [p385]
[Appendix - text of advertisement - omitted] [p386]
1. See Bigelow v. Virginia, 421 U.S. 809, 811 (1975); Schneider v. State, 308 U.S. 147, 160 (1939).
2. Each appellant is a 1972 graduate of Arizona State University College of Law. Mr. Bates was named by the faculty of that law school as the outstanding student of his class; Mr. O'Steen graduated cum laude. App. 220-221.
3. Rule 27(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat. pp. 84-85 (1973), reads in part:
1. In order to advance the administration of justice according to law, . . . the Supreme Court of Arizona does hereby perpetuate, create and continue under the direction and control of this Court an organization known as the State Bar of Arizona, and all persons now or hereafter licensed in this state to engage in the practice of law shall be members of the State Bar of Arizona in accordance with the rules of this Court. . . .
* * * *
3. No person shall practice law in this state or hold himself out as one who may practice law in this state unless he is an active member of the state bar.
See Ariz.Const., Art. 3; Ariz.Rev.Stat. §§ 32-201, 32-237, 32-264 (1976). The Arizona Bar, thus, is an integrated one. See Lathrop v. Donohue, 367 U.S. 820 (1961).
4. The office benefited from an increase in business after the appearance of the advertisement. App. 235-236, 479-480. It is doubtful, however, whether the increase was due solely to the advertisement, for the advertising itself prompted several news stories. Id. at 229. It might be expected, nonetheless, that advertising will increase business. See Hobbs, Lawyer Advertising: A Good Beginning, but Not Enough, 62 A.B.A.J. 735, 736 (1976) (lawyer referral service that advertised referred more than 11 times as many clients as one that did not advertise in another city of comparable size).
5. The remainder of subdivision (b) states exceptions to the general prohibition:
However, a lawyer recommended by, paid by, or whose legal services are furnished by, a qualified legal assistance organization may authorize or permit or assist such organization to use means of dignified commercial publicity, which does not identify any lawyer by name, to describe the availability or nature of its legal services or legal service benefits. This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:
(1) In political advertisements when his professional status is germane to the political campaign or to a political issue.
(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.
(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.
(4) In and on legal documents prepared by him.
(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.
(6) In communications by a qualified legal assistance organization, along with the biographical information permitted under DR 2-102(A)(6) [biographical information that may be listed "in a reputable law list or legal directory"], directed to a member or beneficiary of such organization.
6. The plurality opinion represented the views of two of the five justices that compose the Supreme Court of Arizona. Ariz.Const., Art. 6, § 2; Ariz.Rev.Stat. § 12-101 (1956). It is evident, however, that a majority adhered to the plurality's exposition of the law. One opinion, although styled a dissent, stated that the author agreed with the plurality opinion "in all respects" except for the reduction in punishment. One justice, specially concurring, stated that he agreed "with much of the law and many of the comments expressed by the majority." The opinion of the remaining justice is discussed in the text.
7. But see United States v. Gasoline Retailers Assn., 285 F.2d 688, 691 (CA7 1961); cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221-222 (1940); United States v. National Society of Professional Engineers, 181 U.S.App.D.C. 41, 555 F.2d 978 (1977) (ethical prohibition on members of society from submitting competitive bids for engineering services violates Sherman Act).
8. See also Head v. New Mexico Board, 374 U.S. 424 (1963). The Court did not resolve a First Amendment issue in any of these cases. The advertising restrictions were upheld in the face of challenges based on due process, equal protection, and interference with interstate commerce. Although the First Amendment issue was raised in Head, the Court refused to consider it, because it had been neither presented to the state courts nor reserved in the notice of appeal. Id. at 432-433, n. 12.
9. Appellants also unsuccessfully challenged the rule on equal protection and vagueness grounds, and asserted that the disciplinary procedures violated due process. These contentions are not made here.
10. MR. JUSTICE REHNQUIST stayed the order of censure pending final determination of the matter by this Court.
11. We note, moreover, that the Court's opinion in Goldfarb concluded with the observation that,
[i]n holding that certain anticompetitive conduct by lawyers is within the reach of the Sherman Act, we intend no diminution of the authority of the State to regulate its professions.
421 U.S. at 793. Allowing the instant Sherman Act challenge to the disciplinary rule would have precisely that undesired effect.
12. Rule 29(a) of the Supreme Court of Arizona, 17A Ariz.Rev.Stat., p. 26 (Supp. 1976), provides:
The duties and obligations of members [of the bar] shall be as prescribed by the Code of Professional Responsibility of the American Bar Association, effective November 1, 1970, as amended by this Court.
The challenged rule, DR 2-101(b), is now identical with the present version of the parallel rule, also numbered DR 2-101(b), of the ABA Code of Professional Responsibility, as amended to August, 1976.
13. MR. JUSTICE STEVENS, in a portion of his opinion in Cantor that was joined by BRENNAN, WHITE, and MARSHALL, JJ., observed that Parker v. Brown was a suit against public officials, whereas, in Cantor, the claims were directed against only a private defendant. 428 U.S. at 585-592, 600-601. The dissenters in Cantor would have applied the state action exemption regardless of the identity of the defendants. Id. at 615-617 (STEWART, J., joined by POWELL and REHNQUIST, JJ.).
14. Cohen v. Hurley, in other respects, has been overruled. Spevack v. Klein, 385 U.S. 511 (1967).
15. The limitation on advertising by attorneys in Arizona seems to have commenced in 1919 with the incorporation by reference of the American Bar Association's 1908 Canons of Professional Ethics into Arizona's statutory law. 1919 Ariz.Sess.Laws, c. 158.
16. Indeed, our decision today on the Sherman Act issue was presaged in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 770 (1976). We noted there:
Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. Cf. Parker v. Brown, 317 U.S. 341 (1943).
We stress that we have considered in this case the regulation of commercial advertising by pharmacists. Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising.
425 U.S. at 773 n. 25 (emphasis in original). See id. at 773-775 (concurring opinion).
18. The disciplinary rule, after referring to a listing in "a reputable law list," legal directory, or classified section of a telephone company directory, states:
The published data may include only the following: name, including name of law firm and names of professional associates; addresses and telephone numbers; one or more fields of law in which the lawyer or law firm concentrates, to the extent not prohibited by the authority having jurisdiction under state law over the subject; a statement that practice is limited to one or more fields of law, to the extent not prohibited by the authority having jurisdiction under state law over the subject of limitation of practice by lawyers; a statement that the lawyer or law firm specializes in a particular field of law or law practice, to the extent permitted by the authority having jurisdiction under state law over the subject of specialization by lawyers and in accordance with rules prescribed by that authority; date and place of birth; date and place of admission to the bar of state and federal courts; schools attended, with dates of graduation, degrees, and other scholastic distinctions; public or quasi-public offices; military service; posts of honor; legal authorships; legal teaching positions; memberships, offices, committee assignments, and section memberships in bar associations; memberships and offices in legal fraternities and legal societies; technical and professional licenses; memberships in scientific, technical and professional associations and societies; foreign language ability; names and addresses of references, and, with their consent, names of clients regularly represented; whether credit cards or other credit arrangements are accepted; office and other hours of availability; a statement of legal fees for an initial consultation or the availability upon request of a written schedule of fees or an estimate of the fee to be charged for the specific services; provided, all such published data shall be disseminated only to the extent and in such format and language uniformly applicable to all lawyers, as prescribed by the authority having jurisdiction by state law over the subject. This proviso is not applicable in any state unless and until it is implemented by such authority in that state.
19. Counsel for the appellee at oral argument readily stated:
We all know that law offices are big businesses, that they may have billion-dollar or million-dollar clients, they're run with computers, and all the rest. And so the argument may be made that to term them noncommercial is sanctimonious humbug.
Tr. of Oral Arg. 64.
20. See B. Christensen, Lawyers for People of Moderate Means 151-152 (1970); Note, Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available, 81 Yale L.J. 1181, 1190 (1972). Indeed, it appears that even the medical profession now views the alleged adverse effect of advertising in a somewhat different light from the appellee. A Statement of the Judicial Council of the American Medical Association provides in part:
Advertising -- The Principles [of Medical Ethics] do not proscribe advertising; they proscribe the solicitation of patients. . . . The public is entitled to know the names of physicians, the type of their practices, the location of their offices, their office hours, and other useful information that will enable people to make a more informed choice of physician.
The physician may furnish this information through the accepted local media of advertising or communication, which are open to all physicians on like conditions. Office signs, professional cards, dignified announcements, telephone directory listings, and reputable directories are examples of acceptable media for making information available to the public.
A physician may give biographical and other relevant data for listing in a reputable directory. . . . If the physician, at his option, chooses to supply fee information, the published data may include his charge for a standard office visit or his fee or range of fees for specific types of services, provided disclosure is made of the variable and other pertinent factors affecting the amount of the fee specified. The published data may include other relevant facts about the physician, but false, misleading, or deceptive statements or claims should be avoided.
235 J.A.M.A. 232 (1976).
21. See M. Freedman, Lawyers' Ethics in an Adversary System 115-116 (1975); Branca & Steinberg, Attorney Fee Schedules and Legal Advertising: The Implications of Goldfarb, 24 UCLA L.Rev. 475, 516-517 (1977).
22. The Report of the Special Committee on the Availability of Legal Services, adopted by the House of Delegates of the American Bar Association, and contained in the ABA's Revised Handbook on Prepaid Legal Services (1972), states, at 26:
We are persuaded that the actual or feared price of such services, coupled with a sense of unequal bargaining status, is a significant barrier to wider utilization of legal services.
See also E. Koos, The Family and The Law 7 (1948) (survey in which 47.6% of working-class families cited cost as the reason for not using a lawyer); P. Murphy & S. Walkowski, Compilation of Reference Materials on Prepaid Legal Services 2-3 (1973) (summarizing study in which 514 of 1,040 respondents gave expected cost as reason for not using a lawyer's services despite a perceived need). There are indications that fear of cost is unrealistic. See Petition of the Board of Governors of the District of Columbia Bar for Amendments to Rule X of the Rules Governing the Bar of the District of Columbia (1976), reprinted in the App. to Brief for United States as Amicus Curiae 10a, 24a-25a (reporting study in which middle-class consumers overestimated lawyers' fees by 91% for the drawing of a simple will, 340% for reading and advising on a 2-page installment sales contract, and 123% for 30 minutes of consultation). See also F. Marks, R. Hallauer, & R. Clifton, The Shreveport Plan: An Experiment in the Delivery of Legal Services 50-52 (1974).
23. The preliminary release of some of the results of a survey conducted by the ABA Special Committee to Survey Legal Needs in collaboration with the American Bar Foundation reveals that 48.7% strongly agreed and another 30.2% slightly agreed with the statement that people do not go to lawyers because they have no way of knowing which lawyers are competent to handle their particular problems. ABA, Legal Services and the Public, 3 Alternatives 15 (Jan.1976). See B. Curran & F. Spalding, The Legal Needs of the Public 96 (Preliminary Report 1974) (an earlier report concerning the same survey). Although advertising, by itself, is not adequate to deal with this problem completely, it can provide some of the information that a consumer needs to make an intelligent selection.
24. The British view may be changing. An official British Commission recently presented reports to Parliament recommending that solicitors be permitted to advertise. Monopolies and Mergers Commission, Services of Solicitors in England and Wales: A Report on the Supply of Services of Solicitors in England and Wales in Relation to Restrictions on Advertising 39-41 (1976); Monopolies and Mergers Commission, Services of Solicitors in Scotland: A Report on the Supply of Services of Solicitors in Scotland in Relation to Restrictions on Advertising 31-34 (1976). A companion study concerning barristers recommended that no changes be made in the restrictions upon their advertising, chiefly because barristers are not hired directly by laymen. Monopolies and Mergers Commission, Barristers' Services: A Report on the Supply of Barristers' Services in Relation to Restrictions on Advertising 21-24 (1976).
25. See Morgan, The Evolving Concept of Professional Responsibility, 90 Harv.L.Rev. 702, 741 (1977); Note, Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available, 81 Yale L.J. 1181, 1203 (1972). Economic considerations suggest that advertising is a more significant force in the marketing of inexpensive and frequently used goods and services with mass markets than in the marketing of unique products or services.
26. Moreover, we see nothing that is misleading in the advertisement of the cost of an initial half-hour consultation. The American Bar Association's Code of Professional Responsibility DR 2-102(A)(6) (1976), permits the disclosure of such fee information in the classified section of a telephone directory. See n. 18, supra. If the information is not misleading when published in a telephone directory, it is difficult to see why it becomes misleading when published in a newspaper.
27. One commentator has observed:
[A] moment's reflection reveals that the same argument can be made for barbers; rarely are two haircuts identical, but that does not mean that barbers cannot quote a standard price. Lawyers perform countless relatively standardized services which vary somewhat in complexity but not so much as to make each job utterly unique.
Morgan, supra, n. 25, at 714.
28. THE CHIEF JUSTICE and MR. JUSTICE POWELL argue in dissent that advertising will be misleading because the exact services that are included in an advertised package may not be clearly specified or understood by the prospective client. Post at 386-387 and 392-394. The bar, however, retains the power to define the services that must be included in an advertised package, such as an uncontested divorce, thereby standardizing the "product." We recognize that an occasional client might fail to appreciate the complexity of his legal problem and will visit an attorney in the mistaken belief that his difficulty can be handled at the advertised price. The misunderstanding, however, usually will be exposed at the initial consultation, and an ethical attorney would impose, at the most, a minimal consultation charge or no charge at all for the discussion. If the client decides to have work performed, a fee could be negotiated in the normal manner. The client is thus in largely the same position as he would be if there were no advertising. In light of the benefits of advertising to those whose problem can be resolved at the advertised price, suppression is not warranted on account of the occasional client who misperceives his legal difficulties.
29. The same argument could be made about the advertising of abortion services. Although the layman may not know all the details of the medical procedure and may not always be able accurately to diagnose pregnancy, such advertising has certain First Amendment protection. Bigelow v. Virginia, 421 U.S. 809 (1975).
30. It might be argued that advertising is undesirable because it allows the potential client to substitute advertising for reputational information in selecting an appropriate attorney. See, e.g., Note, Sherman Act Scrutiny of Bar Restraints on Advertising and Solicitation by Attorneys, 62 Va.L.Rev. 1135, 1152-1157 (1976). Since in a referral system relying on reputation an attorney's future business is partially dependent on current performance, such a system has the benefit both of providing a mechanism for disciplining misconduct and of creating an incentive for an attorney to do a better job for his present clients. Although the system may have worked when the typical lawyer practiced in a small, homogeneous community in which ascertaining reputational information was easy for a consumer, commentators have seriously questioned its current efficacy. See, e.g., B. Christensen, Lawyers for People of Moderate Means 128-135 (1970); Note, Bar Restrictions on Dissemination of Information about Legal Services, 22 UCLA L.Rev. 483, 500 (1974); Note, Sherman Act Scrutiny, supra at 1156-1157. The trends of urbanization and specialization long since have moved the typical practice of law from its small-town setting. See R. Pound, The Lawyer from Antiquity to Modern Times 242 (1953). Information as to the qualifications of lawyers is not available to many. See n. 23, supra. And, if available, it may be inaccurate or biased. See Note, Sherman Act Scrutiny, supra at 1157.
31. It is argued that advertising also will encourage fraudulent claims. We do not believe, however, that there is an inevitable relationship between advertising and dishonesty. See Monopolies and Mergers Commission, Services of Solicitors in England and Wales, supra, n. 24, at 32-33 ("The temptation to depart from the high standards required of the profession no doubt exists, but we do not believe that solicitors would be likely to succumb to it more easily or more frequently merely by reason of the supposed contamination of advertising; the traditions of the profession and the sense of responsibility of its members are, in our view, too strong for this to happen"). Unethical lawyers and dishonest laymen are likely to meet even though restrictions on advertising exist. The appropriate response to fraud is a sanction addressed to that problem alone, not a sanction that unduly burdens a legitimate activity.
32. Decided cases reinforce this view. The Court often has recognized that collective activity undertaken to obtain meaningful access to the courts is protected under the First Amendment. See United Transportation Union v. Michigan Bar, 401 U.S. 576, 585 (1971); Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222-224 (1967); Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 7 (1964); NAACP v. Button, 371 U.S. 415, 438-440 (1963). It would be difficult to understand these cases if a lawsuit were somehow viewed as an evil in itself. Underlying them was the Court's concern that the aggrieved receive information regarding their legal rights and the means of effectuating them. This concern applies with at least as much force to aggrieved individuals as it does to groups.
33. The ABA survey discussed in n. 23 indicates that 35.8% of the adult population has never visited an attorney, and another 27.9% has visited an attorney only once. 3 Alternatives, supra, n. 23, at 12. See also P. Murphy & S Walkowski, Compilation of Reference Materials on Prepaid Legal Services 1 (1973); Meserve, Our Forgotten Client: The Average American, 57 A.B.A.J. 1092 (1971). Appellee concedes the existence of the problem, but argues that advertising offers an unfortunate solution. Brief for Appellee 54-56.
34. See Benham, The Effect of Advertising on the Price of Eyeglasses, 15 J.Law & Econ. 337 (1972); J. Cady, Restricted Advertising and Competition: the Case of Retail Drugs (1976). See also Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. at 754, and n. 11 (noting variation in drug prices of up to 1200% in one city).
35. On the one hand, advertising does increase an attorney's overhead costs, and, in light of the underutilization of legal services by the public, see n. 33, supra, it may increase substantially the demand for services. Both these factors will tend to increase the price of legal services. On the other hand, the tendency of advertising to enhance competition might be expected to produce pressures on attorneys to reduce fees. The net effect of these competing influences is hard to estimate. We deem it significant, however, that consumer organizations have filed briefs as amici urging that the restriction on advertising be lifted. And we note as well that, despite the fact that advertising on occasion might increase the price the consumer must pay, competition through advertising is ordinarily the desired norm.
Even if advertising causes fees to drop, it is by no means clear that a loss of income to lawyers will result. The increased volume of business generated by advertising might more than compensate for the reduced profit per case. See Frierson, Legal Advertising, Barrister 6, 8 (Winter 1975); Wilson, Madison Avenue, Meet the Bar, 61 A.B.A.J. 586, 588 (1975).
36. The same appellant, however, stated: "[I]t's not my job to inform a prospective client that he needn't employ a lawyer to handle his work." App. 112-113.
37. The determination whether an advertisement is misleading requires consideration of the legal sophistication of its audience. Cf. Feil v. FTC, 285 F.2d 879, 897 (CA9 1960). Thus, different degrees of regulation may be appropriate in different areas.