Creighton Law Review
attorney advertising, professional responsibility, attorney conduct, first amendment, free speech, commercial speech
There are two problems with permitting litigation about attorney speech to proceed without requiring bar disciplinary agencies to present empirical data or other evidence to support claims that restrictions on attorney speech are necessary. First, the history of bar association restrictions on attorney speech should make us skeptical that the bar rules are based on lofty ideals about protection of the public. The restrictions began as rules promulgated by elite corporate lawyers whose effect was to limit the activities of their less affluent brethren who were representing criminal defendants and other impoverished clients. The purpose of the rules was to enhance the image of the corporate lawyers not to protect the public. Fostering the image that members of the bar are gentlemen is not a sufficient reason for suppressing speech. Second, the clients pay the ultimate price when attorney speech is excessively surpressed. The price is too high to permit a decision about the constitutionality of suppression to be made without evidentiary support. Excessive suppression of attorney advertising prevents consumers from being able to obtain information about how to get legal assistance at an affordable price. Excessive restriction on trial publicity prevents clients from being able to respond adequately to false or damaging information reported in the press. The Supreme Court should not decide cases about rules restricting attorney speech that have the potential to threaten the welfare of clients, without demanding proof that the rules are necessary to protect against real harm.
Lloyd B. Snyder, Rhetoric, Evidence, and Bar Agency Restrictions on Speech by Attorneys, 28 Creighton Law Review 357 (1995)