Do We Need Advertising Rules?

A startling thought given voice at the recent meeting of the Association of Professional Responsibility Lawyers (APRL) in Boston.  As I understand the concept, in the language most other jurisdictions speak, Model Rules 7.1 – 7.6 are not necessary in light of Model Rule 8.4’s prohibition on dishonesty.  Californians would look to our twin constellations of Rule 1-400 and Bus. & Prof. Code sections 6157 et seq.

Both the Model Rules and California law set forth rather detailed schemes dictating the form and content of attorney advertising.  By comparison, California’s false advertising statute Bus. & Prof. Code section 17500, offers a relatively concise scheme generally applicable to businesses (and expressly inapplicable to lawyers alone under section 17500.1.)  What real function does the rest of the filigree in the lawyers’ codes serve, so the argument goes. The real danger is dishonest or misleading advertising, so we only need a rule against that.

In the discipline world, that has a degree of truth as what we are generally fighting about is whether the advertising is “false, deceptive, or which tends to confuse, deceive, or mislead the public” under Rule 1-400(d)(2), which is roughly comparable to Bus. & Prof. Code section 6157 and Model Rule 7.1.  Most of the rest comes into play in California in the context of advising clients as to what the law requires.

The significance of the question lies less in the answer than in the fact that the question is seriously asked.  Why exactly does section 17500.1 exist and how is the lawyering business really different from any other business? The issuance of the Canadian Bar Association report on the future delivery of legal services casts a light that puts these questions in sharp relief.  Lawyer advertising was, after all, originally approved based on the rationale that it would help expand the availability of legal services and lower the cost (Bates v. State Bar of Arizona (1977) 433 U.S. 350.)  It hasn’t worked out that way.  Now those concerns are imperative to the survival of the legal profession.  Of course, if the CBA approach is followed, we are going to being junking a lot more than the advertising rules.

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