It has been forty years since the United States Supreme Court upheld the right of lawyers to advertise in Bates v State Bar of Arizona. The rationale for this seminal case is as significant- and timely- as the ruling: lawyer advertising promotes (affordable) legal access to the general public and improves the overall administration of justice. Even in the 1970’s, the ABA acknowledged the “middle 70% of our population is not being reached or served adequately by the legal profession.”
And many lawyers were thwarting attempts to provide legal service on a more cost-effective, transparent basis.
A quick review of the underlying facts of the Bates case sheds light not only on the social factors influencing the Court’s decision but also on the underbelly of lawyer self-regulation. John Bates and Van O’Steen were recent graduates of Arizona State University College of Law when they opened a legal clinic to “”provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid.” The firm accepted only “routine” cases such as uncontested divorces, uncontested adoptions, and simple personal adoptions. It refused complicated (contested) matters. Pricing was aggressive- and affordable- because the firm made “extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures”.
The firm had a novel economic model: make routine legal services accessible by charging low fees and being transparent about it. Volume was the key to sustaining the model. And so, the firm tried to get the word out- not by slick ads but by publicizing pricing.
The Court sanctioned the firm’s “advertising”, noting that the benefits of making affordable legal services known to the public outweigh the potential harm of overturning the long-established lawyer prohibition against advertising. And while the Constitutional basis of the ruling is a finding that advertising is commercial speech protected by the First and Fourteenth Amendments, the majority opinion seemed to turn on the access to justice issue. The self-regulated legal industry’s advertising ban was considered antiquated and unresponsive to market needs.
Fast Forward to The Present
Legal advertising is now commonplace and has taken on a very different character since Bates. And while the Bates Court might have winced at the recent slick, two- minute Super Bowl ads by Jamie Casino for his personal injury firm, the self-regulated legal profession- and that includes white-shoe firms- has embraced advertising. From airports to bus stops; late-night TV commercials to prime radio spots on NPR; and from Legal Times to LinkedIn, lawyers routinely hawk their services.
Decades after Bates, two key issues remain front and center: access to justice and lawyer self-regulation. The tension between the legal establishment clinging to the status quo and clients in need of new delivery options persists. And the self-regulated legal industry continues to resist change that would benefit clients and lawyers. History repeats itself. In this instance, it has not changed one bit notwithstanding the speed and breadth of change outside the legal vertical.
The access to justice crisis has become even more acute since Bates; lawyers have priced themselves beyond the reach of almost all individuals and small businesses. This is paradoxical given the swelling number of unemployed and under-employed attorneys.
And what happens when a contemporary version of the Bates firm innovates “to provide legal services at modest fees to persons of modest income?” Consider the experience of LegalZoom. Substitute automated legal forms for automatic typewriting equipment and you have a Bates sequel. LegalZoom has had seven- count’em seven– unauthorized practice suits maintained against. It. The company has won all of them- at considerable expense. Its alleged indiscretion: providing cost-effective, quick, and easily accessible legal forms that, in many cases, obviate the need to retain a lawyer.
As Yogi Berra would say, “It’s déjà vu all over again.”
It seems that every time legal services are offered in a novel, cost-effective, efficient, and transparent way, the innovator encounters resistance from the self-regulated legal establishment. So even with an explosion of legal advertising, the message seems to be: “you can trumpet your brand; just don’t try to change things.”
Corporate law firms are also spending more to promote their brand. It’s telling that expertise, price, structure, delivery method, client satisfaction, and service are not at the core of their messaging. Which leads one to wonder: what is the message? Is it the suggestion of gravitas that comes from advertising in The Economist? Why are corporate law firm ads so similar?
One answer: corporate firms tend to resist structural change, even if to do so would not only differentiate them but also enhance their long-term sustainability. They cling to a partnership model that serves a dwindling number of equity partners, but not other lawyers in the firm- much less clients. The mere whiff of re-regulation (as has occurred to the benefit of clients in the UK, Australia, and other developed countries) triggers stiff establishment resistance.
It makes one question the efficacy of legal self-regulation.
Legal delivery is in the throes of transformation. Opportunities exist to make them accessible to millions of new consumers/clients (ameliorating the access to justice crisis). And similar opportunities exist in the corporate segment where the incumbent partnership model is showing stress cracks and new delivery sources with corporate structures are emerging.
How lawyers and law firms respond to this will determine their role in legal delivery in the coming years. One thing appears clear: bland, undifferentiated messaging will not capture market share. Client centric, cost-effective, and efficient delivery backed by results will.
This was originally published on Bloomberg BNA.