Chief Justice Warren Earl Burger blew his stack a few weeks ago. Speaking as a lawyer, he said he would "dig ditches" before resorting to advertising, and he offered a word of advice to the public: "Never, never, never, under any circumstances, engage the services of a lawyer who advertises."
It may be unseemly to suggest that a chief justice of the United States is full of hot air, but with deference, in this instance, this chief was full of hot air. Lawyers have a right to advertise, and the public has a right to be informed of the services they offer.
Until June 1977, when the Supreme Court split, 5 to 4, in Bates v. Arizona, all the states enforced strict prohibitions against advertising by members of the bar. Two young lawyers in Phoenix had promoted their legal clinic through an ad in The Arizona Republic: "Legal services at very reasonable fees." The state bar fell upon them with charges of unethical conduct, and the state Supreme Court approved disciplinary action.
Speaking through Justice Harry Blackmun, the Supreme Court reversed. The majority agreed that Arizona's flat-out ban violated the First Amendment. Justice Lewis Powell, dissenting, sadly predicted that the decision "will effect profound changes in the practice of law." Burger grimly foresaw "problems of unmanageable proportions."
Nothing of the sort has come about. In the eight years since Bates, hundreds of lawyers -- perhaps thousands -- have taken to advertising. A handful have bought time on TV or radio. A few have used recorded telephone messages.
Most have contented themselves with discreet puffery in the yellow pages of telephone directories or in classified ads in local newspapers. No unmanageable problems have appeared, and the practice of law, for good or ill, goes on as before.
The high court has heard four cases since Bates involving these issues. One concerned a lawyer who visited the victim of an auto accident while she was still in traction in a hospital; he was seeking to drum up a lawsuit. The court held, 8 to 0, that this kind of personal solicitation may be prohibited.
In a second case, involving an attorney for the American Civil Liberties Union, the court reversed an effort by South Carolina to prevent the woman from promoting free legal services for women who had been sterilized. The third case saw Missouri's elaborate and detailed limitations on advertising held void.
The fourth case, decided this past May, dealt with a lawyer in Columbus, Ohio. He had taken a display ad in 36 Ohio newspapers. The ad contained a drawing of the Dalkon Shield, with a question: "Did you use this IUD?" If so, "Do not assume it is too late to take legal action." The ad produced more than 200 inquiries, and these led to 106 lawsuits. It was a nice piece of business.
The Ohio bar charged that the advertising violated the state's canons of legal ethics, and the state Supreme Court approved a reprimand. The U.S. Supreme Court, speaking through Justice Byron White, voted 5 to 3 to reverse. The ad was "entirely accurate." It was not fraudulent or misleading.
Some readers may have found the drawing and text in bad taste, but that was immaterial.
The court's several decisions on advertising by lawyers come on the heels of other cases involving advertising by such professionals as pharmacists and opticians. The rules are now clear.
"Truthful advertising related to lawful activities is entitled to the protection of the First Amendment," Powell said in the Missouri case. In May, White said, "Commercial speech that is not false or deceptive may be restrained only in the service of a substantial government interest."
These are sensible guidelines. One objection to lawyers' advertising is that the ads may stir up excessive litigation. But what is excessive litigation? Two women testified in the Ohio case that without the ads, they never would have known of their right to sue.
The chief justice, bless him, wishes that all lawyers -- and all clients -- were cast in the same dignified roles of yore. He sees law as the noblest profession of them all.
Down on the lower slopes of Olympus, some of us see lawyers as ordinary mortals whose first purpose is not to serve justice. Their first purpose is to make a living. If truthful ads promote that purpose, fine with me.