Bates v. State Bar of Arizona

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Bates v. State Bar of Arizona, 433 U.S. 350 (1977), was a United States Supreme Court case in which the Court upheld the right of lawyers to advertise their services. In holding that lawyer advertising was commercial speech entitled to protection under the First Amendment (incorporated against the States through the Fourteenth Amendment ), the Court upset the tradition against advertising by lawyers, rejecting it as an antiquated rule of etiquette.

The Court emphasized the benefits of the information that flows to consumers through advertising, positing that lawyer advertising would make legal services more accessible to the general public and improve the overall administration of justice. The Court had previously held in _Virginia State Pharmacy Board v. Virginia Citizens Consumer Council _ that advertising by pharmacists regarding the price of prescription drugs was commercial speech protected by the First Amendment .

Contents

• 1 Background

• 2 Decision

  • 2.1 Sherman Act claim

  • 2.2 First Amendment claim

  • 2.3 Dissent

• 3 Notes

• 4 References

• 5 External links

Background

(https://en.wikipedia.org/w/index.php?title=Bates_v._State_Bar_of_Arizona&action=edit&section=1 "Edit section: Background")

John R. Bates and Van O'Steen graduated from the Arizona State University College of Law in 1972.

Two years later, they formed a legal clinic, in order to "provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid". Therefore, they accepted only cases involving "routine matters, such as uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name" (and refused complicated cases, such as contested divorces), and kept costs down "by extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures". "Because [they] set their prices so as to have a relatively low return on each case they handled, they depended on substantial volume" in order to make the clinic profitable.

Two years into the practice, Bates and O'Steen "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". At the same time, the American Bar Association (ABA), whose decisions are advisory and not binding upon the bar associations of individual states, amended its rules of ethics on February 17, 1976, to endorse limited advertising by lawyers, albeit in telephone directories rather than in newspapers. Following the model of allowable information approved by the ABA, Bates and O'Steen decided to test the constitutionality of Arizona's prohibition against advertising and, three days after the ABA vote, placed an advertisement in the _Arizona Republic _ on February 22, 1976.

The ad read:

Do you need a lawyer?
Legal services at very reasonable fees

• Divorce or legal separation — uncontested (both spouses sign papers) $175.00 plus $20.00 court filing fee
• Preparation of all court papers and instructions on how to do your own simple uncontested divorce $100.00
• Adoption — uncontested severance proceeding $225.00 plus approximately $10.00 publication cost
• Bankruptcy — non-business, no contested proceedings
  • Individual $250.00 plus $55.00 court filing fee
  • Wife and Husband $300.00 plus $110.00 court filing fee
• Change of Name $95.00 plus $20.00 court filing fee

Information regarding other types of cases furnished upon request
Legal Clinic of Bates & O'Steen

The ad was clearly labeled as an advertisement, and gave the downtown Phoenix address and phone number of the clinic.

In 1976, the State Bar of Arizona generally forbade lawyers in that state from advertising their services. The State Bar initiated disciplinary proceedings against Bates and O'Steen, beginning with a hearing before a Special Local Administrative Committee, which recommended that Bates and O'Steen be suspended from the practice of law for not less than six months. Upon review by the Board of Governors of the State Bar, the Board recommended that they only be suspended for one week each, since "[their] act... was undertaken as an earnest challenge to the validity of a rule they conscientiously believe to be invalid". The pair asked the Arizona Supreme Court to review the proceedings, and specifically contended that the absolute ban on lawyer advertising violated the Sherman Antitrust Act and the First Amendment . The court rejected both claims. The Sherman Act did not apply, the court ruled, because regulating the practice of law was an act inherent to the State of Arizona as sovereign, thus falling within the state-action exemption to the Sherman Act. Although the U.S. Supreme Court had recently ruled that, under the First Amendment, pharmacists could not be forbidden from advertising the prices of prescription drugs, the court reasoned that lawyer advertising was entitled to special considerations that took such speech out of the realm of First Amendment protection. Nevertheless, the court reduced the sanction against Bates and O'Steen to censure only because it felt that the advertising was "done in good faith to test the constitutionality" of the ban on lawyer advertising. Dissenting, Justice William A. Holohan believed that the ban on lawyer advertising impinged on the public's right to know about the activities of the legal profession, and concluded that the ban violated the First Amendment.

The U.S. Supreme Court concluded it had appellate jurisdiction over the case.

William C. Canby, Jr. argued for the appellants John Bates and Van O'Steen in the Supreme Court. At the time, Canby was a professor of law at Arizona State University ; he would later be nominated and approved as a judge on the United States Court of Appeals for the Ninth Circuit . John Paul Frank argued for the appellee, the Sta

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