A state should not require attorneys who advertise to disclose all prior disciplinary actions in their advertisements. Attorney advertising, like other forms of commercial speech, is not immune to state regulation. The American public deserves access to accurate information about legal services, and lawyers have a duty to provide such information. However, attorneys and all other citizens have a constitutional right not to speak. A state must balance the competing interests carefully when the public’s right to know clashes with an individual’s right not to speak. There are several arguments against requiring attorneys to disclose all prior disciplinary actions in their advertisements. The strongest argument against imposing a prior-discipline disclosure requirement is that such a regulation is unjustifiably burdensome and violates their constitutional rights. First, disclosing the prior transgression in all subsequent advertising is unjustified since it serves as additional punishment for attorneys. Second, a prior-discipline disclosure requirement is financially burdensome because the additional information required in the ads will cost extra. Third, a prior-discipline disclosure requirement could impermissibly slow protected commercial speech by making the risks of disclosure so great attorneys do not advertise at all. Lastly, requiring an attorney to label himself “previously disciplined,” only to have him absolved of all wrongdoing on appeal, could be more misleading than allowing him to advertise without such a disclosure. Thus, although a state might require an attorney to disclose basic information about the legal services he offers, the public’s right to know does not justify demanding an attorney to make unduly burdensome disclosures.
St. Mary's University School of Law
The Whole Truth or Nothing but the Truth - Should Attorneys Who Advertise Be Required to Disclose Prior Disciplinary Actions Taken against Them.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol21/iss4/12
Environmental Law Commons, Health Law and Policy Commons, Immigration Law Commons, Jurisprudence Commons, Law and Society Commons, Legal Ethics and Professional Responsibility Commons, Military, War, and Peace Commons, Oil, Gas, and Mineral Law Commons, State and Local Government Law Commons