Attorney Advertising and Free Speech
Attorney advertising presents challenging First Amendment issues for the courts. Laws that attempt to protect the public from deceptive or coercive ads must be weighed against the right of attorneys to retain some measure of free expression protection.
In Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (2010), the U.S. Supreme Court upheld provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) that required attorneys representing individuals in bankruptcy to not advise clients to incur more debt and to disclose certain statements. The Court unanimously decided that these requirements do not
Bates v. State Bar of Arizona (1977) held that attorney advertising was a
form of commercial speech protected by the First Amendment, similar to
pharmacy advertising.
Florida Bar v. Went for It, Inc. (1995) challenged on First Amendment
grounds a ban on direct mail attorney solicitation within 30 days of an
accident, but lost.
In In re Primus (1978), the Court ruled that the First Amendment limits the
ability of the state to sanction non-profit attorneys for solicitation
activities.
In In re R.M.J. (1982), the Supreme Court unanimously ruled that a Missouri
ethics rule restricting advertising by lawyers was unconstitutional under
the First Amendment.
Ohralik v. Ohio State Bar Association (1978) said that states can prohibit
direct, face-to-face solicitation by attorneys without running afoul of the
First Amendment.
In Peel v. Attorney Disciplinary Commission of Illinois (1990), the Court
reaffirmed the general First Amendment principle favoring the disclosure of
information.
Shapero v. Kentucky Bar Association (1988) struck down a Kentucky rule that
barred lawyers from sending targeted direct mail advertisements as a
violation of the First Amendment.
Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio
(1985) widened protection for commercial speech by striking down
restrictions on advertising by attorneys.
