Publications
The Historical Misconception of Lawyer Who Advertise A 100 Year Perspective
By Herbert J. Friedman
One hundred years ago, in August, 1907, the Ethics Committee of the American Bar Association, which was formed to develop “Canons of Ethics” for the legal profession, submitted this proposed canon to the ABA House of Delegates:
Canon 17 “…newspaper advertisements, circulars, and business cards tendering professional services to the general public are proper; but special solicitation of particular individuals to become clients ought to be avoided…”1 (emphasis added).
While the American legal system generally adopted the English common law, many elements of the English system were never adopted, such as, the split bar and the rule against contingent fees. Likewise, the English rule prohibiting lawyers from advertising was not part of the American legal system. In fact, lawyer’s advertised from colonial times and the subject was virtually a non-issue. Most lawyers are familiar with the newspaper advertisement by Abraham Lincoln, published in 1852, but there were many other examples. 2 It was considered a normal part of the American law practice, and lawyers advertised in many local newspapers. Both the Lincoln and Omaha papers printed advertisements for lawyers prior to 1908. 3 Canon 17 was nothing more than the codification of existing practise. Need a lawyer? Look in the newspaper, the only media of the day, and find one. But not many people needed a lawyer.
In 1905 the ABA had established the Committee on Code of Professional Ethics to develop canons to govern the profession, and separate it from being a “mere trade.” In 1906, the committee reported:
“We cannot be blind to the fact that, however high may be the motives of some, the trend of many is away from the ideals of the past and the tendency more and more to reduce our high calling to the level of a trade, to a mere means of livelihood or of personal aggrandizement. With the influx of increasing members, who seek admission to the profession mainly for it’s emoluments, have come new and changed conditions. Once possible ostracism, a professional brethren was sufficient to keep them from serious error the practitioner with no fixed ideals of ethical conduct; but now the shyster, the barratrously inclined the ambulance chaser, the member of the bar with a system of runners, pursue their nefarious methods with no save the rope of sand of moral suasion so long as they stop short of actual fraud and violate no criminal law.”(emphasis added). 4
The “many”, the “increasing number” and the “shyster” were likely code words for Eastern and Southern Europeans, most likely Jews and Italians, first and second generation lawyers, who viewed the profession as a means of social mobility and an opportunity to earn a better living. These lawyers were more likely graduates of night law schools, if they went to law school at all, as it was not uncommon for people to become lawyers through apprenticeships. By 1910, only 8% of lawyers even had college degrees. 5
In August, 1908, the 1907 draft canon was drastically changed, advertising was prohibited and the final version adopted by the ABA now in part read:
Canon 27, advertising direct or indirect “…the publication or circulation of ordinary, simple business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not per se improper but solicitation of business by circulars or advertisements or by personal communications or interviews not warranted by public relations is unprofessional.”(emphasis added). 6
A lone dissenter was Alfred Freeman of New Mexico, who stated:
“I think Canon 27 should not be adopted. It is wrong in principle and it is impracticable. I do not believe that it is any part of our duty to adopt a code of ethics, the effect of which is to deter the young and aspiring members of the Bar from bringing themselves before the public in a perfectly legitimate way. It is impracticable and it cannot be enforced. 7
It should be noted that the ABA had about 3500 members in 1908. 8 The 1910 US Census indicated there were 114,704 lawyers and judges in the United States, only 528 of whom were women. Samuel Baldwin, a founder of the ABA, wanted to confine the membership to “leading men or those of high promise.” 9 Clearly the ABA was not speaking for the majority of lawyers, only a very select and wealthy group.
This prohibition on advertising lasted from August, 1908 to June, 1977, and might well be referred to as the “Invisible Years,” which, like the airplane, the atomic bomb, and the aerosol can, was a Twentieth Century innovation. What caused the abrupt change to bar advertising by lawyers? The real reason remains a bit of a mystery, but an examination of the history and legislation of the times provides some clues.
At the dawn of the Twentieth Century, the United States was a vibrant, expanding nation, but with an ugly tendency towards intolerance. Immigrants to this country during the Eighteenth and middle Nineteenth centuries were predominately western and northern Europeans. Commencing in the later part of the Nineteenth Century, southern and eastern Europeans, such as Italians, Poles, Jews, and Greeks,; the Irish, and other non-European people, began coming to this country, virtually by the millions. These immigrants were decidedly neither Anglo-Saxon nor Protestant. They tended to settle in large, metropolitan areas, and worked in factories, railroads, and in the trades. Few were college educated and even fewer were in professions.
Discrimination was rampant all over the country. For example, in 1902, a brilliant Japanese graduate of the University of Washington Law School was not permitted to take the bar because he was not of “the white or whitish race.”10 In 1907 the ABA approved a rule excluding “aliens” from admission to the bar.11 The National Association for the Advancement of Colored People was founded in 1909, and the Anti -Defamation League in 1913 because of the intolerance of our society.
The average person in the early 1900s had little need for a lawyer compared to today. Automobile, malpractice and product liability litigation was almost non-existent. Although thousands of workers were injured in very dangerous industries, workers were generally prohibited from recovering against employers because of the common law defenses of assumption of the risk, pure contributory negligence, and the fellow servant rule.
Perhaps the most dangerous occupation was railroading, where it was not uncommon for workers to be killed or maimed and simply dragged off the property without any remorse or money, made possible because of the common law. The first legislation dealing with the plight of workers concerned the railroad industry.
President Benjamin Harrison addressed these dangers in a speech to Congress in 1889, in which he compared the plight of the railroad worker to a soldier at war: "It is a reproach to our civilization that any class of American workmen, should in the pursuit of a necessary and useful vocation, be subjected to a peril of life and limb as great as that of a soldier in time of war. "In discussing the need for legislation to address the railroad worker's exposure to harm, Congressman Flood, a strong advocate for the passage of the FELA, referred to alarming statistics about the injuries and deaths associated with work on the railroad..12
After years of debate and wrangling between the railroads and the labor unions, the first FELA was passed in 1906, only to be declared unconstitutional by the U.S. Supreme Court in January, 1908. 13 Finally, on April 22, 1908 a constitutional version of the FELA was passed by Congress and signed into law by President Roosevelt. 14 Its social significance was enormous; it was the first legislation allowing the average citizen a meaningful cause of action for damages against the established business community. And to collect these damages, the plaintiff needed a lawyer. The question was where to find the lawyer? On April 23, 1908, just look in the newspaper, but after August, 1908, lawyers vanished from the newspapers and all forms of advertising.
The only historical event of significance that happened between August, 1907 and August, 1908, appears to be the enactment of the second FELA, in April, 1908. Only four months after the FELA was passed, newspaper advertisements for lawyers, which could have made it relatively easy for injured railroaders to find a lawyer, were prohibited. It seems that is much more than a coincidence. The ABA committee had strong ties to the railroad industry. A least four of the 12 members, Frederick Brown, Franklin Ferris, J.M. Dickinson and George Peck, represented railroads. A fifth, Francis Stetson, represented U.S. Steel and was the personal attorney for J.P. Morgan, a major financier of railroads. 15 These men were not the working man’s friend and would have known that an increase in litigation against railroads would have had an impact on the bottom line of their client railroads.
At the very time when the general public began to need legal counsel in an expanding America for a whole host of reasons, the American legal profession faded into the shadows of the market place. The bar seemed to say, “If you can find us, we’ll help you, but we are not going to make it easy to find us.” In essence, the prohibition was hypocrisy’s finest hour, and the legal profession’s darkest.
Mr. Freedman was wrong in his suggestion that the restrictions to advertising could not be enforced. In fact they were strictly enforced. Most lawyers who violated the rule were reprimanded or suspended but some were actually disbarred. For example, in 1934, a California lawyer was disbarred for sending cards to other lawyers offering his services; 16 and in 1937 a Nebraska lawyer faced disbarment for running an ad for low cost default divorces, but the court only suspended him for six months. 17 This was during the depression, and that was probably enough to put him out of business. Most reported cases didn’t even discuss the First Amendment issue. It was as if the restrictions were fixed in stone.
In 1975, the ABA was still very opposed to lawyer advertising, stating:
“The traditional ban against advertising by lawyers, which is subject to certain limited exceptions, is rude in the public interests. Competitive advertising would encourage extravagant, artful, self-laudatory brashness in seeking business and thus could mislead the layman. Furthermore, it would inevitably produce unrealistic expectations in particular cases and bring about distrust of the law and lawyers. Thus the public confidence in our legal system would be impaired by such advertisements of professional services... History has demonstrated that public confidence in the legal system is best preserved by strict, self-imposed controls over, rather than unlimited, advertising.”(emphasis added) 18
It’s difficult to understand from where such assertions came. The “traditional ban” was barely a lifetime old and nothing to do with the “public interest,” but a lot to do with the railroads’ financial interests. Historically, lawyers advertised without any major problems until the railroads apparently put on pressure to change the rules, and “history demonstrated” nothing except that it was common practice until the railroad industry decided lawyer advertising would be bad for its business.
By the mid 1970s the ban began to come under fire. In 1975, Monroe Freedman, Dean of the Hofstra University Law School, published a book on legal ethics, in which he devoted an entire chapter on the duty of lawyers to “be ambulance chasers.”19 He pointed out the lofty duty set forth in Canon Two; to “make legal counsel available” was in sharp contrast to the prohibition against advertising. Lawyers could deduct country club dues to chase the privileged class for business, but could not contact members of lower socioeconomic classes who might need a lawyer. In 1976, Gerald F. Auerbach, from Wellesley College, wrote a penetrating and often scathing history of lawyers and social change in modern America. 20 He pointed out that the ban on advertising and issues concerning the contingency fee were directly aimed at large city minority lawyers who represented working class people. (The same lawyers, by the way, who started ATLA/AAJ). Quoting Professor Karl Llewellyn of Columbia University, he noted that “…rules against solicitation and advertising and condemnation of ambulance chasing only benefited established lawyers and obstructed the provision of adequate legal services.” The ambulance chasers, Llewellyn observed, brought legal services to people that needed them. 21
That same year, 1976, the U.S. Supreme Court began to open the way for commercial advertising by professionals in Virginia State Board of Pharmacy v. Virginia Citizen’s Consumers Council. The Court held:
“The…consumers interest in the free flow of commercial information. . .may be as keen, if not keener by far, than it’s interest in the days most urgent political debate.”
From society’s point of view, such information “may be of general public interest and indeed indispensable” in the formation of a rational consumer choice in “a predominately free-enterprise economy.”22
The Gray Panthers submitted an amicus curie brief which equated the prohibition against advertising with the suppression of competition and price-fixing. 23
On June 25, 1976, the United States filed a lawsuit against the American Bar Association in U.S. District Court in Chicago, alleging that the advertising restrictions were also a violation of the Sherman Act.24
In 1975, two legal aid lawyers decided to enter into private practice establishing a “legal clinic” where clients could come for low-cost wills, divorces, and bankruptcies, based on a laundry list of inexpensive fees. They advertised in the local newspaper and were promptly prosecuted by the Arizona Bar. The Arizona court ruled that the rule prohibiting advertising was neither a violation of anti-trust laws nor the First Amendment. The Court, ignoring the pre-1908 history, stated: “The legal profession, like the medical profession, has always prohibited advertising since it is a form of solicitation deemed contrary to the best interests of society.”25 Each lawyer was suspended for one week. 26
The case drew a good deal of interest around the country. Briefs were filed by a multitude of interested parties including the American Bar Association, which opposed any change in advertising prohibition and the United States Department of Justice, which urged that the restrictions be abandoned.27 The United States brief, authored by Robert H. Bork, Solicitor General, (later to gain fame for failing to be confirmed by the Senate when he was nominated for the Supreme Court) noted “Arizona’s total ban on advertising by lawyers in the commercial media violates the First Amendment.” 28
Curiously absent was a brief from ATLA.
In 1977, the United States Supreme Court, in the landmark decision of Bates v. State Bar of Arizona, reversed sixty-nine years of arbitrary and unconstitutional conduct by the legal profession in prohibiting lawyer advertising, and by a slim 5-4 majority, reversed the Arizona decision and opened the door for lawyers to advertise their profession in the marketplace. 29 Since then, the U.S. Supreme Court has expanded the right of lawyers, and all professions, to market in a variety of ways. In 1988, in Shapero v. Kentucky, the U.S. Supreme Court permitted direct mail solicitation by lawyers 30. ATLA filed a brief in support of restrictions in that case. However, in 1995, in Florida Bar v. Went For It, Inc., by a 5-4 majority, the Supreme Court approved a 30 day restriction on direct mail solicitations. 31 . ATLA’s failure to file a brief in Bates and its opposition in Shapero to lawyer advertising is perplexing, considering ATLA/AAJ is, and always has claimed to be, the primary defender of consumer’s rights. ATLA was, in fact, founded by lawyers who were the very targets of the original advertising restrictions, that is minority lawyers representing minority working-class people whose only access to the judicial system were the attorneys who would take their case on a contingency.32 On one hand, ATLA’s leaders take pride in being the defender of the consumer and constitutional liberties. On the other hand, some seemed to have bought into the idea that lawyers who advertise were somehow undignified and unprofessional and were willing to prohibit lawyers from exercising their own constitutional rights and at the same time depriving consumers the right to receive information about the legal system and those who could help them when they needed help. In effect, ATLA supported a system which denied its own members the constitutional right of freedom of communication, and the clients of those members the right to receive information regarding our civil justice system and the availability of lawyers to represent them. Not a particularly proud day for ATLA in this writer’s opinion.
Reasons for this may be complex but one suggestion may be that by the 1970’s, the leadership of ATLA had grown up in the non-advertising era and were used to it, and never bothered to question it. They had overcome the obstacles of the restrictions, had developed lucrative practices without advertising, and had their own referral networks, which might be adversely effected by advertising. As a result, when the change did come in 1977, many of the leaders of the plaintiff’s trial bar (but not all) protested advertising, were righteously indignant about it, and refused to enter the competitive market place.
The overall result was that some trial lawyers who were both competent to handle tort cases and had the finances to advertise, remained in the shadows, preferring referrals from other lawyers or by word of mouth. As a result, a vacuum was created and many lawyers who may not have been as experienced in litigation began to fill the void. These lawyers spent millions on advertising, developed huge practices and siphoned off many cases from the established bar leaders. This has caused a significant amount of controversy within the national association.
Although the matter has been contentious within the profession, the public seems to be largely indifferent. The ABA, which at one time maintained records of lawyers disciplined throughout the United States, noted there were de minimus complaints about lawyer advertising from the general public. 33 If lawyers were in fact advertising falsely, it is likely that there would have been an increase in complaints regarding lawyers who advertise. Most complaints relating to advertising come from other lawyers. 34
The Model Code and later the Model Rules both permit lawyers to advertise. 35 States have adapted various changes but in general so long as advertisement is neither false nor misleading, it is proper. Lawyer ads, as well ads for physicians and other professionals, are part of the landscape of the nation. Good or bad, it is part of our culture, and will most likely remain that way for the immediate future.
AAJ/ATLA’s attitude about marketing has sharply changed in recent years. Any lawyer that goes to the winter or summer conventions can see scores of exhibitors offering all types of advertising for lawyers. The Lawyers Marketing Committee was formed in 2000, and began putting on seminars, which have been well attended. In 2005, that presidential committee was renamed the Marketing and Client Services Committee and made a standing committee, whose mission is to provide AAJ members with the tools to effectively market their practices and, at the same time, communicate to the public the value of the American civil justice system. AAJ has switched from open hostility to providing assistance for our members in marketing issues, just as we have in technology.
While AAJ is now proactive on the advertising issue, any lawyer who has picked a jury in the last ten years will tell you there are often negative comments from prospective jurors about lawyer advertising and the entire system in general. Many jurors are buying into the “tort reform” message. The McDonald’s coffee case is a frequent issue primarily because of the misinformation published about the true facts. Ask any trial lawyer about juror attitudes, and you will get an hour lecture on the subject.. As the principal representatives of consumers, trial lawyers need to take back the often negative messages developed by the advertising world, which at times places our profession in a negative light with the public. We need to communicate to the American public that we are in the profession of providing justice to ordinary citizens, who would otherwise be at the mercy of the business establishment. It is time our profession took a strong hand in formulating the message we send to the public, rather than let laymen, who sell commodities such as automobiles and beer, form that message.
As a start, a subcommittee of the Marketing and Client Services Committee has been established to develop sample television advertisements that will give AAJ members the best of both worlds; to develop both powerful marketing that will attract clients, and to send a positive message about the civil justice system. Information received from focus groups and other research will be used to draft the spots. These ads will be nothing more than a suggestion, and members are free to accept or reject them as they choose. There is no question that this is in the embryo stage, yet AAJ is now taking a positive position for the first time since the Bates decision, which was 30 years old this year.
Our profession has come full circle back where we were in 1907. Need a lawyer? Just look in the newspaper (or television, radio, internet, yellow pages or the side of a bus.
