THE SUPREME COURT has affirmed that lawyers have a First Amendment right to advertise, and about 15 percent of American attorneys solicit business this way. But Chief Justice Warren Burger, if he were in private practice, would not be one of them, he says. He would rather "dig ditches," he told an American Bar Association commission, than resort to an ad to promote his services. This is not a new theme for the chief, who has said before that "the practice of law is a profession of service -- with high public obligations, rather than a trade in the marketplace" to be advertised like "other commodities from mustard, cosmetics and laxatives to used cars."
Justice Burger does not advocate either a ban on professional advertising or government regulation of some kind. His concern is directed to his own profession, and he is talking about good taste and public perceptions. There is no argument that false and misleading advertising is to be condemned. But the chief justice also deplores the kind of commercial approaches that are simply undignified. A TV ad using sports stars to hustle business for negligence lawyers is one of his least favorite. So is the house-to-house distribution of coupons for legal service.
As an arbiter of taste, Justice Burger is right. Surely it is in the best interest of professional people to advertise with simplicity and dignity. A few lawyers' ads have been downright tacky. But as long as they are not deceptive, they are harmless. The public's awe of the legal profession may be diminished by hucksters' techniques, but consumers are far less gullible than they used to be. Would you take a hockey player's advice about a real estate lawyer or be impressed by a promise to take $50 off your divorce bill if you come in Wednesday before 6 p.m.?
This newspaper is not disinterested when it comes to advertising. But the public has its own stake in the continuation of legal advertising. It promotes competition, lowers costs and educates people about their rights. Even the chief justice grants that "dignified announcements of their availability" by store-front clinics "have helped bring low-cost legal services to lower-income people long denied access to legal assistance." The public will continue to make judgments about individual practitioners on the basis of their ads. But the verdict is already in on legal advertising: its benefits are worth preserving.