16It is not surprisingthat strict ruleswere set out tomaintain the“dignity of theprofession.”Foremost amongthem was theprohibition againstthe solicitation ofbusiness bylawyers. Advertisingin the Legal Professionby Bart DurhamAdiscussion of legal advertising has tobegin with events long before the U.S.Supreme Court held it permissible inthe landmark case of Bates v. State Bar of Ari-zona (1977) 433 U.S 350. Our law is derived from the common lawof England. In early England the populationwas illiterate, and only a few privileged peoplecould read or write. The king’s secretary wascalled a chancellor. Later when the king estab-lished courts he referred disputes to his secre-tary. We still call some of our judges in Ten-nessee chancellor although this name has fallenout of use in other parts of the country.Eventually through the centuries a lawyerclass of educated citizens evolved. They werepeople who could read and write and were spe-cialized in bringing disputes to the chancellorsand speaking on behalf of the untutored liti-gants. Illiteracy was high in past centuries, andthese people were needed to assist the courts. Today there is the concept of “functionalilliteracy,” and the National Institute for Liter-acy estimates that 22 per cent of the populationfalls into that category. What does it mean to be functionally illit-erate? Citizens who are functionally illiterateare often unable to complete an employmentapplication. They are unable to read an in-depthnewspaper article or gain valuable informationfrom reading a history, science, or sociologybook. They are unable to enjoy an entertainingand unforgettable novel unless they listen to thebook on tape.State of Literacy in America: Estimates atthe Local, State, and National Levels byStephen Reder lists Nashville as 20 percentlevel-one illiterate and Murfreesboro as 16 per-cent level-one illiterate.1Where do these people who operate atlevel-one illiteracy get their information? Itcomes from television or word of mouth. Itwould seem that there is a real need to get infor-mation to this group in a manner that wouldeducate and inform.Traditionally lawyers have been educatedand thus “elite.” Like all trade unionists, theyhave done everything possible to maintain theirprivileged status. Each year the bar admissionsget more rigorous. Requirements to attend lawschool increase in difficulty. Students whograduated in my day possibly would not qualifyfor admission today.It is not surprising that strict rules were setout to maintain the “dignity of the profession.”Foremost among them was the prohibitionagainst the solicitation of business by lawyers.The myth was that lawyers waited for clients tocome to them due to their hard-earned reputa-tions. In an agrarian, more noncommercial soci-ety, that functioned well. Everybody kneweverybody. Lawsuits traditionally were mattersof divorce, criminal law, and petty disputes. Aclass of lawyers grew up handling these types ofcases and was readily accessible. More substan-tial commercial matters involved more sophisti-cated clients who had access to informationregarding which lawyers were most appropri-ate.Average citizens who had been injured inan accident or had a dispute with the govern-ment might be uninformed. They might talk tonumerous lawyers before they found one whowould handle this particular type of case.My Personal Experiences as a Lawyer Who Advertises I finished law school in 1963 and practicedwith my father in the small Tennessee town ofRipley, 50 miles from the nearest city of Mem-phis. A year later I went to work in the U.S.Sure, it’s legal, but is it kosher?continued on page 18attorney’s office, and three years later in thestate attorney general’s office. My duties as anassistant attorney general involved constitu-tional law issues based on my previous experi-ence in government.I left to go into private practice in 1975. Ihad no clients and a wife and child to support.My earliest case came from a medical doctor,Dr. Leonard Brooks of Memphis, who had sentout a solicitation letter to Planned Parenthoodasking them to refer him patients. His letter hadstated that he would do abortions for $150.Planned Parenthood reported this to thestate licensing authority, and the state authori-ties began legal action to revoke his license forviolating their ban on doctors engaging in pro-fessional advertising. Dr. Brooks came to me to defend his rightto practice medicine. There had been a numberof constitutional decisions across the countrypro and con on professional advertising. At thistime the U.S. Supreme Court had granted ahearing in a case from Arizona involvinglawyers who had been disciplined for profes-sional advertising. I talked by telephone to the lawyers in theArizona case and numerous other lawyers whohad similar constitutional challenges on behalfof pharmacies wanting to advertise prices; doc-tors; optometrists; and others.When the Supreme Court ruled in the Ari-zona case in June 1977 that states could not pro-hibit lawyers from advertising, I took the ad theyhad specifically approved and sent it to the Ten-nessean asking them to run the same ad for me.I got a call from Bill Willis, the Tennes-sean’s longtime general counsel, saying thatthey would run the ad. The next morning it ranin the classified section as an ad but also on thefront page as a news story. This was the firstsuch ad for middle Tennessee, just two daysafter the Supreme Court opinion.For two years or more, no other attorneyadvertised, so I had the market all to myself. Idid bankruptcies, crimes, divorces, and personalinjuries. My ad budget was $200 a month. My business grew in two years from a one-man office sharing a secretary with a busy attor-ney, Tom Moon, to my own office with a staffof six, including another lawyer. My workhabits were prodigious. I would arrive at 6 a.m.and not leave until I had put in an obligatory 12hours. I hired staff only when there was somuch work that it was impossible to carry onwithout more help. There came a time when I realized that thedivorce, crime, and bankruptcy practice wasmore labor intensive per dollar realized thanpersonal injury practice, and 10 years ago Ibegan focusing on personal injury exclusively. The perception of lawyers who advertise isthat they do a high volume of small cases. Thatmay be correct. I suspect it is wrong, however,for the reason that the cases that come to youare just like the cases you would get if you didnot advertise. I