Comment by Whitney Thier
The debate among lawyers regarding professionalism is an old one. Over the years, the contestants have changed, but the essential controversy has not. Aligned on one side are those who tout the absolute sanctity of the legal profession. They believe that lawyers hold an exalted place in society as the protectors of human rights and democracy. They argue that, in order to best serve the public, the legal profession should be exempt from regulation by partisan legislatures. Furthermore, it is incumbent upon lawyers that they be dignified in order to maintain the public confidence. The hallmark of dignity and professionalism lies in unselfish public service, which can be achieved only through suppression of the profit motive. On the other side of the debate are those who believe that professionalism, public service, and commercialism are not mutually exclusive. They argue that lawyers have traditionally worked for fees and that to maintain otherwise is hypocritical. Like their detractors, they believe that the true goal of the profession should be to assist the public, but they argue this can be best accomplished by eliminating the elitist notion that lawyers are superior and should rise above commercialism. In other words, public service is best accomplished by using all means available both to inform prospective consumers of legal services and to provide those needed services to them.
Predictably, the current debate on professionalism has centered around lawyer advertising. The advocates of traditional professionalism believe that advertising is “undignified” and erodes public confidence in the legal profession. The proponents of advertising argue that it is a needed means for providing public access to legal services. Facially, lawyer advertising is an issue on which reasonable minds can and do disagree. In fact, both sides make valid points. The problem lies in the serious lack of meaningful access to legal services in the United States. Although the naysayers denounce advertising, they have failed to provide adequate alternatives by which information could reach the public. Furthermore, because the most stringent objections to advertising are made by bar associations and other leaders of the profession, the disincentive to advertise is strong. Consequently, changes are precipitated only by those lawyers who are willing to challenge the system.
The legal profession in the United States is bifurcated, with some lawyers serving large businesses and other monied concerns and others serving individuals. Curiously, the former often governs the latter. This Comment suggests that the inevitable result of this arrangement is to deny individuals sufficient access to needed legal services. As such, I conclude that the stigma attached to advertising should be lifted so that a broader spectrum of lawyers will be able to utilize the medium without fear of professional reprobation.
First, this Comment discusses the traditional definition of professionalism and the development of bar associations around that ideal. Second, this Comment addresses the bar's departure from the public service ideal, its embrace of commercialism, and its continued assertion of an anti-commercial posture. Third, the relationship between the anti-commercial attitude of the bar and its traditional opposition to legal advertising will be explored and contrasted with the Supreme Court's explicit rejection of that stance. According to the Court and other proponents of advertising by lawyers, legal advertising furthers a spirit of public service because it can provide meaningful access to legal services. Finally, the Comment discusses the difficulties faced by lawyers who attempt to provide the public with access to legal services through advertising when bar associations have adamantly stated their opposition to such advertising.
About the Author
Whitney Thier.
Citation
66 Tul. L. Rev. 527 (1991)