Since the Supreme Court ruled in 1977 that outright bans on lawyer advertising are unconstitutional, every state has grappled with what lawyers may say about themselves.I think the Kentucky Bar is committing more then just prior restraint. It is placing attorney advertising in the same regulatory ghetto that the commercial speech doctrine places regular commercial advertising. Why is it that speech that advances one's political interests is protected by the First Amendment, but speech that advances one's economic interests is not?
The high court allows restraint on ads that are false, deceptive or misleading. Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
The proposed regulations "attempt to implement the Kentucky Supreme Court's rules by defining 'false, misleading and deceptive,'" said Benjamin Cowgill, chief counsel for the Kentucky Bar Association.
One regulation, for example, says that if an ad speaks to monetary recovery it "must include an appropriate explanation of the legal requirements" to win and must say "that recovery may be dependent on the ability to collect from the responsible party."
The dispute, however, is not just about what kinds of commercial speech can be proscribed under the First Amendment. The real flap is about an 11-year-old rule that some attorneys say amounts to an illegal prior restraint of commercial speech.
Since 1992, the Kentucky Supreme Court has required lawyers to submit certain kinds of advertising for pre-approval to the Bar's Attorney Advertising Commission.
"That's prior restraint," said Lucian Pera, an attorney who represents Louisville, Ky.'s Becker Law Office. "And that's unconstitutional."
I think the real question ought to be, "where is the victim and how was he harmed." Fraud statues alone provide actual victims with protection and redress from false or exaggerated claims. Rather than create paternalistic regulations that assume idiocy on the part of common man, bar associations ought to instead acknowledge that the courts are more than able to protect the people from errant lawyers. Instead of acting like advertising czars, bar associations would be better off instilling in their members an appreciation for the principle of individual rights.