The Burger Court (1969–86)

First Amendment

What happened in the Court’s first attorney advertising case?

Two young attorneys, John R. Bates and Van O’Steen, submitted an advertisement for low-cost legal services in the Arizona Republic. The Arizona Bar disciplined the two attorneys for violating an attorney discipline rule that provided: “A lawyer shall not publicize himself … through newspaper or magazine advertisements … nor shall he authorize or permit others to do so in his behalf.”

Bates and O’Steen asked their former constitutional law teacher, William Canby (who as of 2007 served as a judge on the Ninth U.S. Circuit Court of Appeals), to represent them in a constitutional challenge of the attorney disciplinary rule. The attorneys lost in the Arizona state courts, but appealed to the U.S. Supreme Court.

The high Court ruled 5–4 in Bates v. State Bar of Arizona that the attorney disciplinary rule prohibiting attorneys from advertising in the newspapers violated the First Amendment. Justice Harry Blackmun wrote that “the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance.” In his dissenting opinion, Justice Lewis Powell warned that attorney advertising “will effect profound changes in the practice of law, viewed for centuries as a learned profession.”


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