From “Call Rafi Rafi” to Lerner and Roe’s incredibly catchy jingle, ads for lawyers seem to be everywhere today. Buses, billboards, on your TV, your radio. If you get a car accident or get divorced, you know who to call. And that’s the idea!
But it wasn’t always like this. For a very long time, lawyers weren’t allowed to advertise. And it was an Arizona case that changed that.
The Show spoke more about it with clinical law professor Ann Ching from Arizona State University’s Sandra Day O’Connor College of Law. Ching is also former ethics counsel for the State Bar of Arizona.
Full conversation
ANN CHING: Lawyer advertising was actually pretty much strictly prohibited for decades up until the late 1970s. So lawyers perhaps could have their name and phone number in a phone directory. That was really about it. So anything that we think of nowadays as advertising on television, radio, billboards — none of that was allowed.
LAUREN GILGER: That’s so interesting. So what was the thinking behind that? Like why was the default no, no, no, you cannot advertise?
CHING: There were a few different justifications for the prohibition. One really broad justification was that the law is a profession, not a business. And advertising was seen as undignified. Or in other words, if you’re advertising, it’s obvious that you’re looking for business, that you’re trying to make money.
And the idea was because lawyers are professionals, it’s undignified, and lawyers to be seen as only wanting to practice the law and serve the public. And we’re not going to talk about the fact that lawyers also need to make money to sustain themselves.
GILGER: That’s obviously a very different conversation today. But we’ll get to that. Talk about when this changed. This was actually in Arizona, a case that spurred this change, right?
CHING: That’s correct. So the case started around 1976 when there were two recent ASU law grads, John Bates and Van O’Steen, and they placed an ad in the Arizona Republic. It was a very straightforward ad advertising their firm. They called it a legal clinic, listing some different services that they provided, listing the fees that each service would cost the client, designating reasonable fees in the advertisement itself.
And the State Bar of Arizona disciplined those two lawyers for running that ad, because at that time, Arizona still had the rule that no advertising was allowed. So they actually had a six-month suspension imposed, which is a pretty serious sanction.
GILGER: Yeah. But they fought back?
CHING: They did. They ended up taking their case eventually all the way to the United States Supreme Court. And in a 5-4 decision, the court actually sided with the two lawyers. And they held that Arizona’s advertising ban violated the First Amendment.
GILGER: So it’s a First Amendment issue. So how quickly did this change things? Did you immediately start to see advertisements pop up all over the place for lawyers?
CHING: You know, it’s hard to say how quickly it happened because this was a while ago. The decision came out in 1977. I can tell you — as someone who grew up here in Arizona and was a little kid in the early ’80s — by the time I can remember, maybe around 1980-81, there were a lot of ads on TV and on the radio. And I’m not going to try to sing any of the jingles I remember from my childhood.
GILGER: They’re always a jingle!
CHING: But there were some famous ones. And if you talk to anyone who’s been around Arizona for 40 or 50 years, they would probably remember. So it became pretty widespread because once the court held that this type of commercial speech couldn’t be strictly prohibited, the rule essentially had to go away. Although states were still allowed to regulate lawyer advertising, so states were still allowed to have rules that prohibited, for example, false or misleading advertising.
GILGER: OK. I wonder why it happens most in certain areas of law. It seems like I see a lot of personal injury lawyer ads, maybe some divorce lawyer ads are pretty common to see, that kind of thing. Is it because that’s just the kind of thing you want people to think of right away if they get in a car crash or need a divorce attorney?
CHING: I do think that’s a part of it. Name recognition, brand recognition is a big part of any advertising, including for lawyers. And these are also high volume areas of practice. So areas of practice where it’s important to get a lot of clients and to sustain a large client base. So there’s a good chance that many people will have a car accident at some point in their lives or have a domestic relations issue, a family law issue.
Whereas other types of legal practice depend more on word of mouth or client referrals. Perhaps corporate law, real estate law, you might not see as much because you're trying to target your potential clients where they are. So you’re targeting people who might get into car accidents while they’re on the road or while they’re waiting for the bus.
GILGER: Which is why they’re on the side of a bus!
CHING: Exactly.
GILGER: So is this a good thing? Are there ethical debates around this now in terms of, maybe it’s a good thing because it serves the public to have these resources readily available to them? Or are there people in the legal world who think that this is predatory?
CHING: I do believe that there is still some tension in the rules and their application, and what it does is it demonstrates that there still is, even nowadays, a tension between thinking of the law as a business or as a profession. And another part of it, too, is thinking about the point of these rules. Is it to protect the public, to protect consumers or potential clients, or is it to protect lawyers and their business interests by placing some guardrails on advertising?
Whether there is any debate about it today, I think the ones who care about it the most are probably lawyers. There probably are still lawyers who feel that it makes the legal profession seem a little bit undignified, seem more like a money grab. But nowadays most lawyers do understand that there’s a benefit. There’s a benefit to allowing the public to know about legal services that are available to them, being able to make informed choices by knowing who the different lawyers and firms are in town.
And something that’s changed since the 1970s is that consumers have a lot more information accessible to them. Consumers can more readily look online at things like reviews of different firms and lawyers and gather information that way. And so consumers are considered to be a bit more sophisticated than they were in the past.
And in fact, that was reflected recently when the Arizona Supreme Court actually changed the advertising rules in 2020.
GILGER: What was the change?
CHING: The change was to really streamline the advertising rules and to get rid of many of the prohibitions other than the really broad prohibition that advertising cannot be false or misleading. So, for example, there used to be a rule that if you sent a direct mailing to a potential client or a group of potential clients, it had to be marked advertising material. There’s even a rule about the size of the font of the words and the color and all of that.
GILGER: Reminds me of campaign ads, right?
CHING: Exactly. It was regulated in that manner because it was considered to be, again, a public protection measure. But as time had gone by, people who were examining these rules — and then the court — agreed that these types of prohibitions or these types of protections really weren’t needed as much, for the reasons that I just stated: because consumers are considered to be more sophisticated nowadays, more able to discern between mail that needs to be responded to versus a direct mailing advertisement, typical junk mail sort of letter.
