Ethics

Many people I talk to (and, indeed, many of the commentators on my previous posts regarding attorney advertising, acknowledge that there are flaws in the heavy-handed ways that most states regulate attorney advertising, but feel that these warts and overreach are acceptable in order to rein in those attorneys who would otherwise ?push the envelope.?  However, this is a line of reasoning that few attorneys would apply to any other regulatory system ? particularly one that impinges on constitutional rights.  Would anyone make that argument with respect to restricting the press or expanding the powers of the police? 

There are real costs to the legal profession?s acceptance of overbreadth in attorney speech regulation.  Look at Florida , where most advertising has to reviewed by a panel potentially made up of competitors, and apparently operating by whim ? prior to being made public.  This process drives higher costs and less transparency to the legal consumer.  Similar problems occur nationwide, and the FTC has tried on many occasions (here?s one example) to get state bars to understand this consumer harm.  And here?s the final irony: Our acceptance of over-regulation of attorney speech might be somewhat more palatable if there were a massive consumer outcry about the evils created by attorney communication.  But there isn?t.  Despite the constitutional requirement that commercial speech regulation target an ?identifiable harm? and mitigate against it in a ?direct and effective manner,? I have yet to see a single example of state attorney speech regulation that is based on empirical evidence of consumer harm.   

Why, again, are we so willing to accept these overly-broad restrictions on the profession?s ability to communicate?