Article. Abstract:
It has
long been taken as gospel that attorney advertising drives down the
cost of legal services. The Supreme Court assumed it when first
permitting attorney advertising in the landmark First Amendment case,
Bates v. State Bar of Arizona. And, in the decades following Bates,
courts, commentators, the ABA, and the FTC have followed suit,
frequently touting advertising’s ability to cut consumer costs. The
price effect of attorney advertising is thus both seemingly settled and
also deeply embedded in its judicial justification.
But there is a
wrinkle. Though it appears advertising did drive down prices for
routine legal services in the years immediately following Bates, in the
intervening decades, there has been a decided, yet heretofore
unexplored, shift. Contemporary attorney advertising is now mostly the
province of the personal injury bar. Yet there is scant evidence that
attorney advertising reduces the contingency fees personal injury
lawyers charge. To the contrary, the best, most sophisticated, most
comprehensive study of legal fees and attorney advertising ever
conducted found that, unlike for most basic legal services (e.g., wills,
personal bankruptcies, uncontested divorces), those who advertised
personal injury legal services charged higher prices than their
non-advertising counterparts. Other evidence likewise shows contingency
fees have not dropped, even while personal injury lawyers’ ad
expenditures have soared.
This fact has been all but ignored,
though it is of enormous consequence for both the legality of attorney
advertising and the delivery of legal services more generally. This
Article aims to reopen and reorient the “settled” attorney advertising
debate, in light of the particularities of personal injury practice and
the changing nature of the market for personal legal services in the
United States.