Bates v. State Bar of Arizona 433 US 350 (1977), is the case of the United States Supreme Court where the Court upholds the right of lawyers to advertise their services. In holding that the attorney's commercial is a commercial speech entitled to protection under the First Amendment (entered against the United States through the Fourteenth Amendment), the Court overrides the tradition against advertising by lawyers, rejecting it as an ancient rule of etiquette.
The court emphasizes the benefits of information flowing to consumers through advertising, stating that lawyer ads will make legal services more accessible to the general public and improve overall court administration. The previous trial was held at the Virginia State Pharmacy Board v. Virginia Citizens Consumer Council that advertising by pharmacists regarding prescription drug prices is a commercial speech protected by the First Amendment.
Video Bates v. State Bar of Arizona
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John Bates and Van O'Steen graduated from Arizona State University College of Law in 1972.
Two years later, they formed a legal clinic, to "provide simple legal fees to middle-income people who are not eligible for government legal aid". Thus, they only accept cases involving "routine matters, such as irrefutable divorce, undisputed adoption, simple personal bankruptcy, and name change" (and rejecting complex cases, such as divorce in question) and reduce costs "with extensive use of paralegals, automated typing equipment, and standard forms and office procedures". "Because the applicants charge their prices so that they have relatively low returns on each case they handle, they depend on substantial volumes" to make clinics profitable.
Two years into practice, Bates and O'Steen "concluded that their clinical practice and concepts could not survive unless the availability of low-cost legal services was advertised and, in particular, advertised fees". So they put an ad on Arizona's Republic on February 22, 1976.
The ad reads:
Do you need a lawyer?
Legal services at a very reasonable cost
- Divorce or legal separation - undeniable (both partners signed documents) $ 175.00 plus $ 20.00 court filing fee
- Prepare for all court documents and instructions on how to make your unassailable $ 100.00 simple divorce
- Adoption - undisputable severance proceeds $ 225.00 plus approximately $ 10.00 publication fee
- Bankruptcy - non-business, no contested process
- Individually $ 250.00 plus $ 55.00 court filing fees
- Wife and Husband $ 300.00 plus $ 110.00 court filing fee
- Name Change $ 95.00 plus $ 20.00 court filing fee
Information on other types of cases provided on request Bates & amp; O'Steen
The ad is clearly labeled as an advertisement, and provides the Phoenix city center address and telephone number of the clinic.
In 1976, the State Bar of Arizona categorically prohibited lawyers in the country from advertising their services. The State Bar initiates a disciplinary process against Bates and O'Steen, beginning with a trial in which the validity of the rules will not be decided, but where the couple can introduce evidence to support overturning the rules. The disciplinary committee conducting the hearing recommends that Bates and O'Steen be suspended for no less than six months. The couple requested the Arizona Supreme Court to review the trial, and specifically argued that an absolute ban on lawyer advertising violated the Sherman Antitrust and First Amendment Act. The court rejected both claims. The Sherman Act does not apply, the court decides, because governing legal practice is an act attached to the State of Arizona as a sovereign state. Although the US Supreme Court recently ruled that, under the First Amendment, pharmacists can not be prohibited from advertising the price of prescription drugs, the court reasoned that the attorney's ad was entitled to special consideration that took such a speech out of the First Amendment of protection domain. Nevertheless, the court reduced the sanctions against Bates and O'Steen to criticize just because it felt that the advertisement was "done in good faith to test the constitutionality" of lawyer advertising bans. A court disagreeing in court believes that the banning of advertising lawyers violates the public's right to know about the activities of the legal profession, and concludes that the ban violates the First Amendment.
The US Supreme Court concluded that they have an appeal jurisdiction over the case and set a date for oral arguments. William C. Canby, Jr. arguing for the applicants John Bates and Van O'Steen at the Supreme Court. At the time, Canby was a law professor at Arizona State University; he was later nominated and approved as a judge in the United States Court of Appeals for the Ninth Circuit. John Paul Frank argued for appellee, State Bar of Arizona. Frank is a partner at the Phoenix law firm, Lewis and Roca, and also defends the defendant in the case of Miranda v. Arizona . Attorney General Robert Bork is debating on behalf of the US government.
Maps Bates v. State Bar of Arizona
Decision
As Professor Thomas Morgan says,
Traditionally organized bars take the position that lawyers are not allowed to actively publish their services. Consequently, it is considered that every lawyer has an established client, or that a reputable lawyer for a good job will surely lead others to seek attorney services. Under this approach, direct publicity for lawyers is strictly controlled.
The Court's decision rejected this tradition as an historical aachronism, which created a higher barrier to entry into the legal profession and served to "perpetuate the market position of established lawyers."
Sherman Act Claim
The Court agrees with the Arizona Supreme Court that the exclusion of state action Parker v. Brown is applied to Arizona's ban on advertisement lawyers, though the Court previously stated that the Sherman Act applies to other lawyers. activities. In Goldfarb v. Virginia State Bar, 421 US 773 (1975), the Court stated that the minimum cost schedule imposed by Virginia State Bar is a "classic example of pricing" subject to the rules under the Sherman Act. The court distinguishes this case from Goldfarb because the Virginia Supreme Court, exercising sovereign power to regulate legal practice, does not require Virginia State Bar to engage in anti-competitive activities. In contrast, Arizona's prohibition on advertising lawyers "was forced by the direction of the state acting as sovereignty" since it was announced by the state supreme court. As such, the Court reaffirms the Arizona Court's rejection of the Sherman Act claim. First Amendment Claim
The court stated that the speech did not escape the protection under the First Amendment simply because "proposed a regular commercial transaction." Furthermore, commercial speeches serve a significant public interest in terms of informing the public about the availability, nature, and price of products and services, enabling them to act rationally in a free enterprise system. The audience's interest in receiving information about potential commercial transactions is "great." In fact, "consumer attention to the free flow of commercial speech is often much sharper than its attention to urgent political dialogue."
These reasons are critical to Court's refusal to advertise prescription drug prices at Virginia State Pharmacy Board v. Virginia Citizens Consumer Council , 425 U.S 748 (1976). The Court is of the opinion that the public interest in knowing the price of certain prescription drugs in various pharmacies outweighs the desire to maintain "professionalism" among pharmacists; to prevent customers from spending-the price, which of course will keep them away from the care of one particular pharmacist who potentially monitors the patient for harmful drug interactions; and to perpetuate the image of pharmacists as "skilled and specialized craftsmen," which is said to be crucial for recruiting new pharmacists.
By describing a holding on the Virginia Pharmacy Board in this way, the results in Bates show the previous conclusion. However, the Court in the Virginia pharmaceutical case clearly provides an assessment of how equal equilibrium can occur with respect to other professions, as may be of different constitutional considerations.
Nevertheless, the Court does characterize Arizona's ban on advertisement lawyers as serving to "impede the flow of free information and keep the public in ignorance." This emphasizes the published Bates and O'Steen ads that are the most basic ones possible - listing various services, prices charged, and addresses and phone numbers. The central point of contention in this case is that lawyers advertise the price they charge for a particular service.
The State Bar of Arizona appealed to the desire to maintain certain air "professionalism" among lawyers as a justification on the prohibition of advertising lawyers. The advertisement, Bar State asserts, will "undermine the sense of dignity and dignity of lawyers", "erode the client's trust in lawyers" by exposing the economic motives for representation, and "tarnishing the dignified public image of the profession". But the public understands that lawyers make a living at the bar, and some lawyers cheat themselves by thinking otherwise. "Bankers and engineers advertise, but this profession is not considered inferior.In fact, it has been said that the failure of lawyers to advertise creates public disappointment with the profession." Lack of information about the price of legal services tends to deter people with the simple way of seeking legal representation, even when it is in their best interests to involve such representatives. Finally, as far as "the belief that lawyers are somehow 'above' the trade has become an anachronism, the historical basis for advertising restraints has collapsed."
Ads are also not advertised by misleading lawyers. The court speculates that "only services that lend themselves to advertising are routine," precisely the services Bates and O'Steen advertising. "Although the exact services demanded in each task can be slightly different, and although legal services are not interchangeable, these facts do not make the advertisement misleading as long as the lawyer does the necessary work at the advertised price.A argument that legal services are so unique that fixed rates can not be significantly set forth by the record in this case: the State Bar itself sponsors the Legal Services Program in which participating attorneys agree to perform the services as advertised by the applicants at the standard level. "And although advertising for legal services is incomplete, responsible lawyers certainly will not claim that all cases are "simple" cases - rough estimates are more cost-beneficial to the public than keeping them in complete darkness.
To the extent that lawyer advertising can be said to encourage reckless lawsuits, the Court has denied that the American Bar Association has observed that "the mid-70% of our population is not adequately achieved or served by the legal profession," indicating that some cases have been paralyzed for wanting a lawyer willing and able to assist clients in bringing suit. Prohibition of advertising, moreover, is an ineffective way to reduce attorney fees and maintain the quality of legal services provided. Finally, there is no reason to believe that allowing lawyers to advertise would result in a tidal wave of dishonest claims for the state bar to investigate and prosecute, as Justice Powell feared would happen. "For any lawyer who goes beyond the limit through advertising, there will be thousands of others who will be honest and honest and straightforward."
After disposing of arguments against the lawyer's advertisement, the Court ruled that Arizona's total ban on lawyer advertising violated the guarantee of freedom of speech from the First Amendment. But that does not mean that states are powerless to organize lawyer ads altogether. The court reiterated that countries are still permitted to prohibit "false, deceptive, or misleading" ads by lawyers; to set the way in which lawyers can request business directly; to request warnings and disclaimers of advocacy advertisements to ensure that the public is not misled; and impose reasonable restrictions on the time, place, and manner of attorney's advertising.
Dissent
In disagreement, Judge Powell points out that the primary duty of an attorney, even in the case of "routine" divorce, is one diagnosis and suggestion: to point out clients' concerns that he may not be aware of, and to ensure that clients address the problem. Powell finds it difficult to mention a value for this aspect of legal representation, and hence for consumers to sense how many diagnoses and suggestions they can expect for the advertised fixed price. As a result, it is impossible to know whether Bates and O'Steen's statement that their cost "makes sense" is an accurate one. "Whether a fee is' very reasonable 'is a matter of opinion, and not a matter of fact that can be verified as shown by the Court One unfortunate result of today's decision is that lawyers may feel free to use various adjectives - like' fair ',' moderate ',' cheap ', or' lowest in town '- to describe the offer they offer to the public. "
References
External links
- Text Bates v. State Bar of Arizona, 433 US 350 (1977) is available from: Cornell Ã, CourtListener Findlaw Justia Oyez Ã, OpenJurist Google Scholar Ã,
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