433 U.S. 350 (1977), argued 18 Jan. 1977, decided 27 June 1977 by vote of 5 to 4; Blackmun for the Court; Burger, Powell, and Rehnquist in dissent. In Bates the Supreme Court struck down state legal ethics codes that prohibited lawyers from advertising. Two young lawyers, John Bates and Van O’Steen, sought to create a test case by placing a newspaper advertisement indicating that they offered “legal services at very reasonable fees” and listing some of the fees they charged. The Board of Governors of the State Bar recommended that the two lawyers be suspended. The Arizona Supreme Court upheld the decision but reduced the punishment to censure.
In the U.S. Supreme Court the attorneys attacked the Arizona rule on two grounds: that it violated the Sherman Antitrust Act by creating a restraint of trade, and that it violated the First Amendment by restraining the right of free speech. The Supreme Court rejected the antitrust claim, but held that their First Amendment rights of speech, together with the right of the public consumers of legal services to receive their message, outweighed any adverse effects on professionalism that advertising might have. The Court subsequently limited the First Amendment right in Ohralik v. Ohio State Bar Association (1978), where it sanctioned a policy of totally barring in-person solicitation of clients.
Bates opened up the practice of law to greater competition and made possible the growth of legal clinics that provide routine legal needs of the middle and lower middle class. One empirical study in Arizona found that, after Bates, the average cost of these legal services declined. The case, along with Goldfarb v. Virginia State Bar (1975), which prohibited bar sponsored fee schedules, signaled the end to total self-regulation of the bar, which the leadership of the American legal profession has decried.
Rayman L. Solomon