Rehabilitating the Legal Profession

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Rehabilitating the Legal Profession:

Reform of Legal Advertising as a Strategy to Fix the Legal Field’s Image Problem

By Nick Klitzing^Bio

According to most historians, Thomas Jefferson, Abraham Lincoln, and Franklin Roosevelt were three of the five greatest Presidents in American history.¹ These great men made history by conquering the Declaration of Independence, the Civil War, and the Great Depression, but long before they made history as Presidents, they were leaders of the legal profession. The profession has claimed twenty-five U.S. Presidents,² more than 70 percent of all Vice Presidents and cabinet members since 1937, and more than half of all U.S. Senators and state governors in recent years.³ However, despite its once revered position in society as an incubator of America’s leaders, the legal profession has become deeply unpopular. Now, 95 percent of Americans would not recommend that their children enter the legal profession.⁴

While numerous factors have likely contributed to the popular decline of the legal field, many scholars argue that legal advertising has contributed to the public image that lawyers are unprofessional and unethical. To restore integrity to the field, state bar associations must take concrete steps to rehabilitate the profession by engaging in a comprehensive assessment of legal advertising and employing numerous, diverse strategies to reform the system. According to former Chief Justice Warren Burger, the legal field has historically sat amongst the church and medicine as a true profession because the three fields are “something different from a trade,” ⁵ something elite. Although the legal profession does not have an ancient oath or creed like the ministry and medicine, lawyers have long accepted a code of conduct, one that has evolved slowly over six hundred years, where attorneys reinforce to one another that certain conduct is prohibited.⁶ However, according to many scholars, most notably former Chief Justice Burger, the once elite profession has faltered because lawyers no longer live by strenuous professional standards, which has resulted in the “standing of the legal profession [falling to] its lowest ebb in the history of our country…”⁷

In a series of speeches starting in 1984, Chief Justice Burger inspired a “professionalism movement” in the legal field⁸ because some disreputable lawyers were “well on the way to making it less than a profession.”⁹ Burger considered the “huckster [or shyster] advertising of some attorneys” to be the biggest threat to the legal field because, unlike courtroom misconduct, “outrageous” advertising reaches the public.¹⁰ Burger argued that the legal profession can freely regulate its own conduct because a profession “has standards that are above the minimum commands of the law.”¹¹ Despite the professionalism movement that Burger’s criticism inspired, the current ABA Model Rules have done very little to actually promote professional conduct, beyond merely espousing platitudes.

Proponents of legal advertising have cited Bates v. State Bar of Arizona as proof that the Constitution prohibits any restrictions on legal advertising, but their reliance on Bates is misplaced. While Bates held that legal advertising cannot be uniformly restricted, the opinion also held that there may be reasonable restrictions on the time, place, and manner of advertising.¹² The opinion decided “how lawyers could advertise,” rather than whether lawyers could advertise (the central question before Bates).¹³ Despite this subtle distinction, proponents of legal advertising convinced many in the field that almost all legal advertising is acceptable. As a result, the legal profession has taken a passive role in regulating advertising, as evidenced by ABA Model Rule 7.1 that limits only “false or misleading communication.” As a result of this misreading of Bates and the ABA’s passivity, proponents of legal advertising have developed outrageous tactics to prey on the ill-informed. Recognizing these adverse, unintended consequences of the Bates decision, the Supreme Court has since held that lawyers may be subject to a higher standard in advertising.¹⁴ In fact, the Supreme Court has acknowledged that the legal profession must be strictly regulated to protect the public interest.¹⁵

Instead of strictly regulating conduct within the legal profession, ABA Model Rule 7.1 is too weak and makes no “real distinction between what is legal and what is professional.”¹⁶ The ABA Model Rules only prohibit illegal activity (i.e. misleading and false advertisements), and nothing more.¹⁷ Chief Justice Burger and others have called for more stringent standards – standards above the bare legal minimum – because outrageous and unprofessional legal advertising ultimately harms society. Most legal advertising caters to negative emotions: fear, anger, and greed.¹⁸ Since Bates, the growth of advertising has resulted in a public that considers “ambulance chasing” and preying on the public’s fears to be the norm for most lawyers.¹⁹ The public now believes lawyers have one goal: to make as much money as possible, regardless of the dishonest tactics employed.²⁰ The public believes lawyers will do anything – act uncivilly and even lie and cheat – to get revenge, settle a score, or win as much money as possible.²¹ In his dissent in Bates, Burger worried that the public would be “victimized by simplistic price advertising of professional services,”²² and just as Chief Justice Burger predicted, the public has become the victim of outrageous advertising because the public’s lack of trust in the legal profession has undercut respect for the rule of law.

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