Bates participants reflect on landmark case

Thursday, November 18, 2004

One in a series of interviews with principals involved in First Amendment-related U.S. Supreme Court cases (see “SCT interview” keyword below).

If you turn on the television you see them. You see them on bus benches, billboards, the back pages of telephone books and even above urinals in bathrooms. They deal with various areas of the law, including personal injury, Social Security disability, workers’ compensation and driving under the influence. Attorney advertisements have permeated our commercial culture for all to see.

 

But that was not always the case. In fact, for the vast majority of the 20th century advertising was not entitled to First Amendment protection at all. In its 1942 decision Valentine v. Chrestensen the U.S. Supreme Court wrote: “We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.” It wasn’t until the mid-1970s that the U.S. Supreme Court granted commercial speech a degree of First Amendment protection.

 

In a pair of decisions out of Virginia — Bigelow v. Virginia (1975) and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. (1976) — the Supreme Court invalidated restrictions on ads marketing abortion services and ads showing prices of prescription drugs. Particularly in the Virginia Pharmacy case, the Court recognized the importance of advertising, noting that “the free flow of commercial information is indispensable.”

 

One year after Virginia Pharmacy, the U.S. Supreme Court decided the landmark attorney-advertisement case of Bates v. State Bar of Arizona. The case involved a truthful advertisement placed by attorneys John R. Bates and Van O’Steen in The Arizona Republic. It listed prices for uncontested divorces, uncontested adoptions, personal bankruptcies and name changes.

 

However, the ad met with severe resistance from the Arizona Bar because it violated an attorney disciplinary rule, which provided in part:

 

“A lawyer shall not publicize himself … through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.”

 

The Supreme Court ruled 5-4 that the truthful attorney ads were entitled to First Amendment protection. But when Bates and O’Steen first placed the ad in the newspaper, it was far from clear that eventually they would receive vindication, let alone from the United States Supreme Court.

 

The beginnings of the case
John Bates and Van O’Steen both graduated with honors from Arizona State University College of Law in 1972. Bates was named the most outstanding student in his class, and O’Steen graduated cum laude. After passing the bar exam in Arizona, the pair went to work as attorneys with the Maricopa County Legal Aid Society. From this experience, they learned the nuts and bolts of practicing law — and that many people were priced out of the market for legal services. The prices were too high.

 

In March 1974, Bates and O’Steen left the Legal Aid Society and started their own law firm or clinic in Phoenix. They decided to concentrate their practice on providing low-cost legal services to poorer people. “We wanted to change the existing system, which favored existing law firms, who did not seek clients among the unserved,” Bates said. “In the provision of legal services, a huge number of people were being turned away because of lack of financial resources. We wanted to offer affordable legal services.”

 

The problem for Bates and O’Steen was that they needed a steady stream of clients to keep their business afloat. “After two years, we concluded that the clinic would not succeed if we did not advertise,” Bates recalls. “Because our fees were so low, we needed a greater volume of clients than could be obtained simply by hanging out our shingle and waiting.”

 

Their solution to the client-flow problem was to advertise in The Arizona Republic. On Feb. 22, 1976, they took out an ad. They knew the bar would react, and badly. “We knew we would get a strong reaction from the state bar for our price-list ad in The Arizona Republic,” said O’Steen.

 

The reaction was swift. The special administrative committee of the Arizona Bar convened a hearing on April 7, 1976, and recommended a six-month suspension for each attorney. The board of governors reduced the penalty to a one-week suspension on April 30, 1976.

 

Help from their law professor
Shortly after they placed the ad in the paper, knowing an uproar would ensue, Bates and O’Steen took their former law professor, William Canby, out to lunch.

 

“We placed the ad on a midday Friday and then called Professor Canby later that day,” O’Steen recalls. “We thought the prudent thing to do was to speak with Bill Canby, our constitutional law professor at Arizona State University. He is a brilliant lawyer, law professor and jurist.”

 

“I selected Bill Canby for several reasons,” Bates adds. “First, he had a brilliant legal mind. Second, he was sympathetic to our cause. Third, he had a deep background in constitutional law.”

 

Canby, who is now a judge on the 9th U.S. Circuit Court of Appeals, also recalls the lunch. “They told me they had placed an ad in a local newspaper advertising the price for their legal services. I knew how the bar would react. They said they needed an attorney. I agreed on two conditions: (1) I could control the litigation, and (2) I would charge no fee.”

 

Before he agreed to take the case, though, Canby thought the best course of action would be to contact his respected attorney and friend, John Frank. “After our lunch, my first thought was to enlist John Frank as a pro bono attorney to bring their case for them,” Canby said.

 

Frank was a brilliant attorney who, among other highlights, had successfully argued the Miranda v. Arizona case before the U.S. Supreme Court that led to the suppression of information obtained from a “confession” by Ernesto Miranda. The famous decision led to the famous “Miranda rights” that are read to those arrested for suspected crimes.

 

“I called him and started to explain the case but he stopped me before I could say much, because he was going to be on the other side,” Canby recalls. “That was when I decided to offer to take the case for Bates and O’Steen myself.”

 

A loss at the Arizona high court
Canby appealed his clients’ punishment by the state bar to the Arizona Supreme Court, challenging the punishment on numerous grounds. He argued that the advertising restraint violated antitrust laws. He argued that the bar’s disciplinary rule violated equal protection and was void for vagueness. He also argued that it violated the First Amendment.

 

This position seemed to be greatly bolstered by the U.S. Supreme Court’s decision in Virginia Pharmacy, which had rejected a state’s blanket ban on prescription drug-price advertising. It seemed to Bates, O’Steen and Canby that the decision provided excellent legal ammunition for their First Amendment arguments.

 

However, the Arizona Supreme Court was not persuaded. On July 26, 1976, the state high court ruled in In Re Bates that there was no First Amendment violation. The high court relied on Chief Justice Warren Burger’s concurring opinion in Virginia Pharmacy in which he wrote:

 

“Our decision today, therefore, deals largely with the State’s power to prohibit pharmacists from advertising the retail price of prepackaged drugs. As the Court notes, quite different factors would govern were we faced with a law regulating or even prohibiting advertising by the traditional learned professions of medicine or law.” (Emphasis added.)

 

The Arizona Supreme Court relied on Burger’s statement to distinguish the Bates case from Virginia Pharmacy. “It was not surprising that we lost in the Arizona Supreme Court,” Bates said. “The advertising prohibition was their rule. So, we were asking those persons directly responsible for the advertising ban to conclude that what they had done was illegal. There was a kind of built-in conflict of interest.”

 

O’Steen holds similar recollections: “We were entirely certain that we would lose before the Supreme Court of Arizona. We did get one vote which surprised us.” Canby agreed: “I was glad to get one justice of the state Supreme Court to our side. The chances of the state Supreme Court striking down its own rule were unlikely, particularly since the court would have to break new legal ground.”

 

The one vote O’Steen and Canby referred to was the dissenting opinion of Justice William A. Holohan, who ruled that the advertising ban violated the First Amendment. “What is at stake in this case is more than regulation of a profession or the discipline of two lawyers. More fundamentally there is involved the right of the public as consumers and citizens to know about the activities of the legal profession.”

 

At the U.S. Supreme Court
The loss in the state high court meant that the two attorneys had one remaining avenue — the court of last resort, better known as the U.S. Supreme Court.

 

Looking back, Canby says he was confident that the U.S. Supreme Court would hear the case. “I thought the case was a natural for the U.S. Supreme Court, particularly since in Virginia Pharmacy the Court had broken ground on commercial speech. It wasn’t too hard to make the connection to attorneys.” Canby, who had clerked at the U.S. Supreme Court, said he was honored to have a chance to return to the high court as an advocate.

 

Pressing his First Amendment and antitrust claims before the justices, Canby argued that the case implicated the free-speech interests not only of his attorney-clients but also of the general public.

 

Meanwhile John Frank and the state bar pressed forward with a number of arguments as to why the legal profession should be able to prohibit advertisements. Frank argued that allowing attorney ads would detract from the state’s interest in professionalism. He also argued that attorney advertising was inherently misleading and would have an adverse effect on the administration of justice.

 

Oral argument was a battle of excellent lawyers as Canby and Frank both handled tough questions from the justices. Canby recalls that Chief Justice Burger asked him whether he thought attorney advertising would advance professionalism. “I said that yes, it would, because one of the highest duties of the legal profession is to see that people receive legal representation.”

 

“I felt fine about the oral argument,” Canby said. “I thought it was up in the air as to which way the Court would rule. But we did have the drug-price case [Virginia Pharmacy] on our side.”

 

On June 27, 1977, the U.S. Supreme Court reversed the Arizona Supreme Court 5-4 on the First Amendment issue in Bates v. State Bar of Arizona. Just as he had in Virginia Pharmacy, Justice Harry Blackmun wrote the majority opinion for the Court.

 

“Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance,” Blackmun wrote.

 

He addressed each of the state’s arguments and rejected them all. With respect to professionalism, Blackmun found that “the postulated connection between advertising and the erosion of true professionalism to be severely strained.” In answer to the state’s argument that history and tradition were on the side against advertising, Blackmun responded that “habit and tradition are not in themselves an adequate answer to a constitutional challenge.”

 

According to Blackmun, the state’s argument that attorney advertising was inherently misleading was misplaced, particularly in this case. Nothing was misleading about Bates’ and O’Steen’s ad “so long as the attorney does the necessary work at the advertised price,” he wrote.

 

Another argument advanced by the state was that there would be undesirable economic effects of advertising, such as increasing the overhead costs of attorneys and greater legal fees. Blackmun forcefully rejected this argument, finding that advertising might have the opposite effect and lead to reduced prices. He added that the advertising ban “serves to perpetuate the market position of established attorneys.”

 

Blackmun concluded: “In sum, we are not persuaded that any of the proffered justifications rise to the level of an acceptable reason for the suppression of all advertising by attorneys.”

 

Several justices wrote dissenting opinions, including then-Chief Justice Burger, current Chief Justice William Rehnquist and Lewis Powell. Burger warned that the decision “could become a trap for the unwary” and “will only breed more problems than it can conceivably resolve.”

 

Powell warned that advertising “will effect profound changes in the practice of law, viewed for centuries as a learned profession.” Justice Rehnquist also decried the Court’s decision, writing: “I continue to believe that the First Amendment speech provision, long regarded by this Court as a sanctuary for expressions of public importance or intellectual interest, is demeaned by invocation to protect advertisements of goods and services.”

 

Aftermath
Whether the warnings issued by Burger and Powell have come true are debatable. But one thing is for certain — the case eventually led to a virtual explosion in attorney ads. Many attorneys now routinely advertise in the Yellow Pages, while others go much farther and advertise on television.

 

Bates and O’Steen were invited to speak at various conferences after their noted victory. They were also glad to have the disciplinary blot on their records removed for good. “I was pleased that the cloud hanging over our names for a year and a half had been lifted,” O’Steen says.

 

At one meeting, at least, they received a very chilly reception from the legal community. O’Steen says that at a conference in San Francisco, someone threw food at them. Bates does not recall any such incident but says: “I recall that some attorneys shouted at us at one presentation we gave about the case. There was some opposition to our position by some attorneys with successful practices built through traditional methods who opposed legal advertising.”

 

“The case was the high-water mark of my legal career as a party, not a lawyer,” says O’Steen, who continued to practice law in Arizona. “I see it as a great consumer victory. It led to reduced costs of legal services.”

 

“I think the decision was a victory for the public in general,” Bates says. “When I look back at the case and what we accomplished, I have a feeling of satisfaction.”

 

For his part, Judge Canby believes that the case was a landmark decision along with Virginia Pharmacy.

 

“The case stands for the idea that commercial information is something that offers vitally important information to consumers just as other types of speech, and the speech is important because it leads to economic decisions that govern our lives,” Canby says. “Abraham Lincoln advertised his services when he practiced law.”

 

John Frank, who graciously agreed to an interview while not in very good health (he died in September 2002 only a month after the interview), said he still thought the Court reached the wrong result. “My skin crawls and stomach screams when I see the ads for lawyers who promise to fight like tigers and at very low cost,” he said. “I believe that advertising has become so sufficiently promiscuous that it is a profound change in the practice of law.”

 

Beyond the case
Bates and O’Steen parted ways a short time after the decision. Bates obtained an advanced law degree from Arizona State and pursued a career in law teaching. When that did not work out, Bates left Arizona for Ohio. He worked at the Southeastern Ohio Legal Services for several years. He is now in private practice in Ohio. “I do consumer bankruptcy work now,” he said. “It is an area from which I derive substantial satisfaction because it directly addresses fundamental issues in people’s lives.”

 

O’Steen stayed in Arizona and has had a successful private practice, though he is modest about it. “We have marketed our firm very well over the years,” is all he will say on his success. He handles mass tort cases, medical malpractice and product-liability cases. He also handled a tobacco case for the Arizona attorney general’s office.

 

Canby taught at Arizona State until 1980 when he was appointed to the 9th Circuit. He remains extremely knowledgeable about commercial-speech cases. Canby questions whether the U.S. Supreme Court was correct when it upheld limits on attorney solicitation in Ohralik v. Ohio State Bar Association (1978) and Florida Bar v. Went For It, Inc. (1995). In Ohralik, the Court ruled that lawyers could not solicit prospective clients in person. In Florida Bar, the Court upheld a 30-day ban on attorney solicitation letters to accident victims and their family members.

 

“Both Ohralik and the Florida Bar decisions were too restrictive,” Canby says. “I disagree with the broad ban on in-person solicitation. I think that Florida Bar was wrongly decided because it limits the speech of attorneys to a targeted audience, but there is no comparable ban on speech by insurance companies.”

 

Bates says it best when asked to reflect on the still-controversial First Amendment issue of attorney advertising: “It is the nature of the First Amendment that there is going to be speech in every medium of communication that some people don’t like.”

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