THE PROS AND CONS OF LAWYERS’ ADVERTISING.
Legal advertising simply refers to advertising by attorneys and law firms. It refers to any advertising an attorney purchases or publishes in publications, outdoor installations, radio, television or any other written or recorded media. Iit originated from the England’s legal system. In the United States, it is founded on American Bar Association Cannons of professional ethics. Each state has a right to regulate the way lawyer’s advertising is governed separately. Advertising has a constitutional basis i.e. the notions of free speech, right to counsel and unreasonable restriction upon commerce. The general rule is that advertisements are entitled to the same measure of constitutional protection as ordinary speech unless such advertisement is violation of a valid limitation of economic activities. One significant case that stood out in lawyers advertising is Bates v. State Bar of Arizona where the supreme court overruled a decision by the American Bar Association on advertising by lawyers. The court found that an attorney’s price advertising is protected by the first amendment of the constitution on freedom of speech. It went further to say that any misrepresentation and misleading information is however prohibited and not protected under the first amendment.
There are several advantages as to why lawyers advertising should be encouraged. Firstly, lawyer advertising informs the public of current legal issues. This therefore provides the public with not only necessary current legal information but also a map of where to turn to in case they encounter legal problems. In short, it provides product information, which in this case is legal information and further persuades people to use this information appropriately when needed.
Secondly, advertising provides the public with information which the public uses to make choices between different lawyers offering the same service. This is due to the fact that different lawyers charge differently and they also have different unique ways of approaching a legal issue. The public therefore gets the chance to compare and make a decision based on what suits them best. The public thus get to enjoy the benefits of competition just like consumers of other products.
Thirdly, advertising leads to competition amongst lawyers which translates to lowering and eventually regulation of the prices of legal services within the profession. By advertising publicly, lawyers open doors for comparison of prices by the public to the public. The lawyers who charge exorbitant prices are thus forced to reduce these prices in order to compete on a leveled plane with their counterparts who charge lower prices. This translates to a reduction in the prices of legal services which is advantageous to the public.
Fourthly, advertising gives the public an opportunity to learn and further understand legal services. This increases the stature of the profession by diminishing fear and suspicion associated with the profession. If the public has trust in the profession, then it would be easy to approach attorneys with confidence in case a legal issue arises.
Another advantage of lawyers advertising is that it will help in maintaining the quality of legal services by creating an enabling environment for brand names to be established. Larger capital intensive firms will be able to create a legal presence in the market offering suitable legal services just like other franchises do in other fields.
In addition, advertising offers consumers a chance to make comparisons of the products offered in the legal service market. In order to make an informed decision, the public is offered available products and from them, they can pick the ones that suit them best
Moreover, by bridging the information gap, there is reduction of chances in stirrup of improper suits. Due to the fact that the public now has more legal information, they are able to make informed choices which reduce the chances of improper suits arising.
Another advantage to advertising is that it gives attorneys an opportunity to reach a wide range of consumers. If this increased range of audience translates to an increase in the number of clients, then it would give attorneys an opportunity to reduce the cost of production which would translate to higher profits and a reduction in the cost of legal services in form of discounts.
Moreover, advertising provides the quality for standardization of legal services by ensuring that information is disseminated in the market. This is because advertising gives the consumers familiarity with law firms and attorneys together with the services they offer. This will make it easier for consumers to know who to approach in case they need certain legal services.
In addition, advertising increases access to information on prices offered by different firms for the same products. Individuals under the notion that they can’t afford legal services find out that they indeed can afford and consequently consume legal products and further supply reputation information to other would-be consumers. With this information, the market would regulate itself in that consumers would avoid firms of ill repute and get legal services from firms from the better ones.
Moreover, legal advertising will provide middle class members of the public with an opportunity to access legal services. This is due to the fact that advertising demystifies the myth that legal services are expensive. This translates to more people from the middle class seeking out legal services in matters such as wills, divorces and other legal services they might need.
Finally, lawyers advertising can create goodwill for lawyers and law firms. This goodwill if properly exploited can be used to strengthen the competitiveness of an attorney or a firm in the market which translates to more clientele and more profits for the advertising party.
In as much as lawyers’ advertising is advantageous to the legal practice, it has its cons. Firstly, they are the creation of the American Bar Associations which means that the legal profession is responsible for regulating and enforcing the rules that govern this advertising. This means that they come with all the disadvantages of self-regulation, i.e. self-regulation is sometimes lax in nature and thus it encourages others to participate in misconduct and unethical practices as the sanctions attracted are lax at best.
Secondly, state associations can create their own legislation which can differ from each other. What’s acceptable in one state can be unacceptable in another state. This translates to confusion amongst the states. The courts have tried to address the issue of this difference through a number of cases. In Bates v. State Bar of Arizona, it was held that advertising in newspapers is protected by the first amendment and therefore state professional or disciplinary codes cannot prohibit it. Moreover,in ohralic v. Ohio Bar Assosiation, the issue of in–person legal association arose where a regulation prohibited lawyers from offering their services to people who had not sought them out. The court held that in-person solicitation has limited first amendment protection and thus left its regulation to individual states. In Shapero v. Kenturcky Bar Assosiation, the bar had a statute that prevented attorneys from using direct mail solicitation to attract clients. The court held that this was a violation of the first amendment and thus allowed attorneys to advertise via direct mail.
Thirdly, advertising by lawyers mostly favor well established and financially successful attorneys who can afford advertising. An attorney who is not yet well established is disadvantaged against his counterpart in that he lacks the financial muscle to make the same glamorous advertisements. This can translate to bad business for them. Moreover, the well-established attorneys are in a position to raise significant barriers for their counterparts.
Fourthly, the cost of advertisement is normally passed on to consumers of legal services. This translates to legal fees rising significantly to accommodate the cost of advertising. Advertising is an office expense just like rent and malpractice insurance. It has to be accommodated in the office expenses expenditure budget and as such it’s filtered down and included when calculating the fees that the client eventually pays.
In addition, advertising will inevitably increase the prices for legal services. As discussed in the previous point, attorneys who choose to advertise spend more overhead and this extra cost is passed on to the consumers of these legal services. This translates to the price of legal services being higher than the normal price with the exclusion of advertising.
Similarly, increase in the price of legal services might raise barriers for people interested in joining the legal profession. This will translate to a decrease in competition which will create not only laxity in the profession but also increase the prices of legal services in the longrun.
Moreover, advertising of legal fees can be misleading. The public is often drawn to the lawyers who offer the least fees for their services. This can be misleading as prices cannot assist in the selection of the most qualified lawyer suitable for a certain legal issue.
Another disadvantage is that advertising by attorneys can be misleading. In an attempt to compete with their counterparts, attorneys might give misleading information which might serve their own interests but diminish any good faith the public might have placed in the profession in the long run.
Moreover, competitive advertising might result in driving the cost of legal services down. In as much as this is an advantage to the public which forms the consumers, it is disadvantageous to the attorneys in the profession in that there will be fewer attorneys practicing and in the long run it might create the problems and disadvantages that come with monopolies.
Another disadvantage to advertising is the risk aspect. Advertising does not automatically translate to an increase in the number of consumers of legal services. An attorney or law firm might advertise their services and still not get the anticipated clientele. This would translate to losses being incurred in form of the expenditure used in the venture. To correct this, attorneys might be forced to either bear the cost of advertising on their own or increase the prices of their services further pushing clients away.
Moreover, lawyers advertising is disadvantaged in that there are uncertainties in the outcome of litigation. This is because in most if not all cases, the outcome of litigation is left on a scale of probabilities. This means that there exist a high degree of risk and in advertising, lawyers need to factor in the fact that even though a client chooses to procure their legal services, there is no guarantee that they will get exactly what they have in mind when coming to purchase these services.
In addition, there will always be the issue of accuracy and reliability of the information given in these advertisements. Just like other professions, the legal profession has its own crooks who do not shy away from misrepresenting and misleading the public with fictitious or exaggerated information about the products they offer. As such, some members of the public will be misled and consume these services to their detriment.
In conclusion, lawyers advertising is advantageous to not only the public but also to attorneys and law firms in that it offers a platform where information is shared, it increases the range on which legal practitioners sell their expertise and knowledge and fosters a platform on which healthy competition is practiced within the profession. On the other hand, lawyers advertising comes with a wide range of uncertainties which poses risks to not only the public which constitutes the consumers of legal knowledge but also to the practitioners themselves. The competition that is experienced as a consequence of advertising might serve to reduce the prices of legal services translating to more people seeking out legal services thus increasing the demand for attorneys and legal services in general. On the other hand, the competition might lead to the creation of monopolies if big successful law firms and attorneys succeed in creating name brands for themselves bringing out the evils of monopolies.
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