ChesterNewMatterFall2017 - 30

The Blank Page

www.chescobar.org
By Mark Blank, Jr., Esquire

Bates v. Arizona State Bar:

FORTY YEARS LATER

wo young lawyers, members of the Arizona Bar (Mr.
Bates and Mr. O'Steen) placed an advertisement
in the Phoenix Newspaper. The ad stated that
the lawyers' "Legal Clinic" provided "legal services at very
reasonable fees" and identified the following legal services:
(1) Divorce or Legal Separation - Uncontested (both spouses
sign papers): $175.00 plus $20.00 court filing fee;
(2) Preparation of all court papers and instructions on how
to do your own simple, uncontested divorce: $100.00;
(3) Adoption - Uncontested severance proceeding: $225.00
plus approximately $10.00 publication costs;
(4) Bankruptcy - Non-Business, no contest proceedingsindividual: $250.00 plus $55.00 court filing fee; Wife and
Husband: $300.00 plus $110.00 court filing fee;
(5) Change of name: $95.00 plus court filing fee.
The two lawyers were suspended for no less than six months
for violating Disciplinary Rule 2-101(d), incorporated in
Rule 29 (a) of the Supreme Court of Arizona, 17A. Ariz. Rev.
Stat., page 26 (Supp. 1976). On Certiorari, the United States
Supreme Court affirmed in part and reversed in part. Bates v.
State Bar of Arizona, 433 U.S. 350 (1977). Justice Blackmun,
speaking for the plurality, stated:
"The Constitutional issue in this case is only whether
the State may prevent the publication in a Newspaper of
Appellant's 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 that the present application of the Disciplinary
Rule against the Appellants to be violative of the First
Amendment". Id., 384.
Chief Justice Burger, Justices Powell and Rehnquist
concurred in part and dissented in part.
The plurality did make reference to a State's authority to
reasonably regulate. But that is only part of it. As Justice
Powell noted: "[T]oday's decision will effect profound changes
30 | New Matter

in the practice of law". Id., 389.
Justice Powell's prediction was an understatement. It is
remarkable what has happened over the past 40 years. Bates
and O'Steen's ad in a newspaper was akin to the prepackaged
goods and fees that were the subject of the advertisement in
Goldfarb v. Virginia State Pharmacy Board, 421 U.S. 773 (1976).
As stated by Chief Justice Burger and Justice Powell, the
majority relied very heavily on Goldfarb.
Post-Bates, advertisements on radio; television; billboards;
public transportation facilities, such as trains, buses and
subways.
Prior to Bates, telephone directories only had a category for
lawyers which mentioned the names, addresses and telephone
numbers. Post-Bates: Ads: one eighth of a page; then one
quarter; then one half; now, anywhere up to two pages and
even more. Bates was also before the internet. Now what do
we have? Just look.
And, of course, there is direct mailing: accidents, injuries,
debts; divorce, custody, mortgage foreclosures ("I can save
your home"), credit card lawsuits, criminal. Often the
potential client receives a solicitation on one of these latter
subjects before he/she even knows about the divorce, custody,
foreclosure, credit card suits or even criminal charges.
As an admittee to the bar pre-Bates, the writer looks on
lawyer advertising as an epidemic. Graduate from law school,
hang out a shingle. Then advertise as to who you are, what
you are, what you do and, for that matter, probably what you
don't do, the latter of which most likely remains undisclosed.
The Bates decision was based on a simple ad for routine legal
services and the fees charged. Compare that with what we
experience now. "Look What They've Done To My Song, Ma"
(Melanie Safka, 1971).

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