John Bates was living in a one-room shack in a rundown neighborhood in Phoenix, Arizona, when he realized that he wanted to become a lawyer. His decision would change the American legal profession.
Bates was from a small town in the West Virginia panhandle, due west of Pittsburgh, steel country. His father was a minister; his mother helped at the church. They instilled in Bates a spirit of public service, and from a young age he was a liberal do-gooder. He also was a talented musician—tuba, French horn, piano—and he toyed with making it a career. But after graduating from Oberlin, it came time to make real-life decisions, and the prospect of roughing it in a big city, trying to land a scarce gig in a respectable orchestra, seemed . . . hard.
So Bates enrolled in grad school. But then he got to worrying: The Vietnam War was in full swing, and what if he got drafted? He started looking for ways to reduce the odds of that happening.1
Johnson was president, and his administration had created a national service program called VISTA. It was essentially a domestic version of the Peace Corps. Young people could enroll to work—and live—in impoverished communities for a year or two. “Your pay will be low; the conditions of your labor will be difficult,” Johnson had told the first class of VISTA enrollees. “But you will have the satisfaction of leading a great national effort, and you will have the ultimate reward which comes to those who serve their fellow man.” That sounded pretty good to Bates, who figured that joining the program might also give him a way out of the draft. He applied to VISTA, got in, and was sent to Phoenix.2
The job entailed helping locals do things like navigate government bureaucracies to apply for public aid. Bates didn’t much mind the hardscrabble living conditions, but he found it tricky to effectively advocate for the people he was supposed to be assisting. He lacked the skills or credentials to make much difference. One day, Bates met another VISTA volunteer who was a lawyer. This man knew how to get things done. Bates craved that kind of efficacy. He decided to become a lawyer. It was his ticket to making the world a better place.
Bates was admitted to Arizona State University’s small law school. On the first day of orientation, he met Van O’Steen, an army brat whose family had settled in Phoenix. During an orientation session, O’Steen had asked about opportunities for community service. Bates came up to him afterward and said that he, too, had a hankering to help. They became friends. They worked together in legal clinics that the law school ran, and in 1972 they both graduated with honors. They could’ve scored jobs at major law firms. Instead, they went to work for Maricopa County’s legal aid society.3
They were assigned to a tiny neighborhood clinic. They arrived the first day to find that they each had nearly one hundred open cases, and no supervision or training. They served mostly indigent people who needed lawyers for relatively simple legal services, but they had to turn away a procession of others: people who weren’t poor enough to qualify for legal aid but couldn’t afford a private lawyer, or those who needed routine legal services that the aid society didn’t offer. It became clear to both lawyers that “there was this gigantic gap,” as Bates put it nearly a half century later.4
Bates and O’Steen decided to bridge that gap. In 1974, after eighteen months working for legal aid, they opened their own little shop that would specialize in low-cost legal services. They scraped together their savings and borrowed $2,000 from a friend, and that was enough to rent space in a small, two-story office building in downtown Phoenix, a block away from the courthouse and “with a neighborhood drunk taking up residence on the front sidewalk.”5
Their trick was to standardize much of the legal process: They printed questionnaires and forms and do-it-yourself kits. They relied on paralegals to collect information and help with the paperwork, a novel concept at the time. The two lawyers could spend their time on tasks that only lawyers were allowed to do, like making appearances in court.6 That would enable them to charge fees well below those of established law firms.
The original plan was for word of the Legal Clinic of Bates & O’Steen to spread from one satisfied customer to the next. But the trickle of clients walking into their dingy offices quickly made clear that wouldn’t be enough. So, what to do?
Back in 1908, the American Bar Association, trying to preserve the dignity of a profession that was veering ever closer to businesslike mores, had promulgated the twenty-seventh rule of its Canons of Professional Ethics: “Indirect advertisement for business by furnishing or inspiring newspaper comments [about a law firm’s work] . . . and all other like self-laudation defy the traditions and lower the tone of our high calling and are intolerable.”7
In case that left any room for ambiguity, state bar associations soon issued their own edicts. Arizona’s was explicit: “A lawyer shall not publicize himself . . . through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.”8
Over the years, lawyers had been busted for skating around the edges of these rules. Not only could you not run ads—you couldn’t even promote yourself in the media. (A law firm had been disciplined for letting Life magazine reporters shadow its lawyers for an article.)9 You couldn’t take out space in the Yellow Pages. (A lawyer had been nailed for paying to have his name and phone number in bold lettering in the phone book.) Even handing out business cards at a cocktail party could be construed as an improper act of self-promotion.
The ostensible purpose of these restrictions was to insulate the bar from the sorts of degrading commercial pressures that afflicted normal industries. Lawyers were not supposed to be businessmen. They were above the seamy profit-maximizing ethos of traditional capitalists.
But the practical implication was that it was all but impossible for lawyers to make an independent start, and that served the interests of large, powerful firms, which did not have to compete against upstarts that promised lower prices or better services. Nobody would even know they existed.
After giving up hope that their clinic would take flight on the back of referrals, Bates and O’Steen wondered if a newspaper might be inclined to write about this new legal clinic offering cut-rate prices. The problem was, the Arizona bar association might penalize them for reaching out to a reporter. “We were just down there in that little building, hoping,” Bates told me.
It soon became clear that their venture was not going to be able to survive along its current trajectory. Their business model was low price, high volume. The reality they were facing was low price, low volume.
The two got to thinking. What was to actually stop them from buying an ad in the newspaper? The Arizona bar association would almost certainly come down hard on them, but what did they have to lose? Maybe the story of a powerful band of lawyers attacking a couple of recent grads who were just trying to help the needy would attract media attention, which would spread the word about their clinic, which would allow them to keep their doors open.
They came up with a small, rectangular ad. “DO YOU NEED A LAWYER?” it asked. “Legal services at very reasonable fees.” The ad featured a simple image of the scales of justice. And it listed the prices of common services: divorces, $175; adoptions, $225; bankruptcies, $250. On a Friday in February 1976, Bates and O’Steen walked to the offices of the Arizona Republic, carrying a printout of their ad. For a small fee, they arranged to have it run in Sunday’s paper.
That afternoon, the ad department called O’Steen. The Republic couldn’t publish the ad after all. The newspaper had a policy against running copy that mentioned divorces. Now, figuring they might as well go all in, Bates and O’Steen made a phone call of their own: to the Republic’s investigative reporter, Al Sitter. They told him about their plan, how they were trying to upend the stodgy legal business with an eye toward helping the poor. Sitter made a few calls and, lo and behold, the Republic reversed course and agreed to run the ad.10
That same day, Bates and O’Steen called their Arizona State constitutional law professor, William Canby, and asked if they could stop by to get his advice. At a restaurant near campus, they told Canby about their plan. The professor (he’d later become a federal judge) seemed to appreciate the provocative nature of what his former students were considering, but he urged them to slow down. Don’t run the ad yet.
“We already have,” Bates replied.
“Oh.” Canby told them they were going to need a good lawyer—and he couldn’t think of anyone better than himself.
The small ad for the small legal clinic ran on page A21 of the Republic on Sunday, February 22. On the front page was an article by Al Sitter. It described how two local lawyers were taking a daring stand against the mighty bar association. He quoted Bates and O’Steen saying the prohibition on advertising was a disservice to the public; he quoted the president of the bar association saying Bates and O’Steen were in big trouble.
That week was a blur. Bates and O’Steen were swamped with calls and visits from would-be clients who had seen the media coverage (if not the ad itself) about their low prices. That Friday, O’Steen hosted a party to celebrate their remarkable turnaround. Among the guests was Arizona’s attorney general—and soon-to-be governor—whose wife had been a law school classmate of Bates and O’Steen. By then, the inevitable complaint, filed by the bar association’s president, had arrived in the mail.11
Bates and O’Steen were young and maybe a little reckless, but they also had picked an opportune time to challenge the hegemony of bar associations and their restrictions on self-promotion.
The prior year, the U.S. Supreme Court had issued a landmark ruling in a case called Goldfarb v. Virginia State Bar. The plaintiffs, Lewis and Ruth Goldfarb, had signed a contract to buy a home in a Northern Virginia suburb. Before they could get a mortgage, they needed a lawyer to conduct a title search on their property. Lewis Goldfarb called a list of lawyers, who all offered the same exact price—1 percent of the value of the property. Goldfarb, himself a lawyer at the Federal Trade Commission, got suspicious. He did a little research and learned that the state bar association required all lawyers in Virginia to adhere to a schedule of minimum fees. In the case of title searches, that minimum was 1 percent of the purchase price.12
The rules, versions of which existed in many other states as well, represented another feeble attempt by local bar associations to strike a balance between maintaining the profession’s non-capitalist posture while dealing with the reality that lawyers wanted to make money. Increasing competition among lawyers was driving down prices. Virginia’s minimum prices were crafted to address the fact that “lawyers have slowly but surely been committing economic suicide as a profession,” as a bar association committee put it when it proposed the fee schedule.13 The minimum fees were good for lawyers, but not for consumers. They were also, in the most literal sense, anticompetitive.
That was the argument made by the Goldfarbs’ lawyer, a Ralph Nader acolyte named Alan Morrison. The bar association insisted that it was exempt from antitrust laws because theirs was a “learned profession,” not a traditional industry. In June 1975, in a unanimous decision written by Chief Justice Warren Burger, the Supreme Court sided with the Goldfarbs. Lawyers and law firms might be “learned,” but they were also in business. They couldn’t collude to set prices in unison.
Five months later, the court heard oral arguments in a case commonly referred to by the shorthand Virginia Pharmacy—also brought by Alan Morrison. It had nothing to do with the legal industry. Instead, Morrison argued that restrictions on ads about the prices of prescription drugs deprived consumers of valuable information, stifled competition, and violated the First Amendment. In May 1976, the Supreme Court agreed. It struck down government restrictions on commercial speech—aka advertisements—as unconstitutional.
The seven-to-one decision was widely hailed as a milestone for consumer rights. The lone dissenter was William Rehnquist. He predicted that the ruling would set off a chain reaction. The court’s decision, he wrote, would open the door to the “active promotion of prescription drugs” and other products directly to consumers—and to the invalidation of restrictions on ads by other professions. Sure enough, cigarette companies, casinos, the liquor industry were all soon citing the court’s decision to knock down bans on ads for their addictive wares. “Rehnquist’s dissent in Virginia Pharmacy would turn out to be one of the most farsighted opinions in the history of the Supreme Court,” Adam Winkler wrote in his 2018 book, We the Corporations.14
With those cases fresh in their minds, Bates, O’Steen, and Canby had good reason to be confident that they would prevail in their legal battle in Arizona.
The Arizona bar was represented by a prominent constitutional lawyer, John Frank. A decade earlier, he had counseled Ernesto Miranda in a case that went to the Supreme Court and established the right to remain silent. Frank and Canby discussed the Bates and O’Steen case. They both felt that the question of lawyer advertising was ripe for Supreme Court refereeing; similar skirmishes were breaking out around the country. They agreed to do everything they could to fast-track the case.15
The bar association imposed token one-week suspensions on Bates and O’Steen, but it allowed them to be served at different times, so their clinic wouldn’t have to close. Canby quickly appealed the punishment to the state supreme court, arguing that the Goldfarb and Virginia Pharmacy cases showed that advertising restrictions violated antitrust laws and the First Amendment. The state court rejected their arguments.16 Canby next appealed to the U.S. Supreme Court. It granted certiorari—it would hear the case. Oral arguments were scheduled for January 18, 1977.
Bates and O’Steen came to Washington, which was abuzz with preparations for Jimmy Carter’s inauguration in two days’ time. They stayed with one of Bates’s friends. The morning of January 18 was bitterly cold; at 9:00 a.m. the temperature was 13 degrees. The two Arizonans stepped outside, and it was like their faces were burning. O’Steen was pretty sure his nostrils were frozen; he felt ice every time he inhaled. The men made their way to the Supreme Court. Here they were in this temple of the law, and its nine august jurists would be hearing a case with national implications, and it was all because of them. The thrill thawed them.17
“Mr. Chief Justice, may it please the court,” Canby began. “This case is about two lawyers who advertised in their local newspaper and were disciplined for it. But, as I intend to show, it’s also a case about the delivery of legal services in the United States.” He explained how advertising was the only way for poorer people to realize what legal services were available to them. Justices Stevens and Burger interrupted to ask about what to do about misleading ads; could they be regulated? Canby said yes. Where does one draw the line? Could hospitals ban employees from handing out leaflets? Sure, Canby said. What about TV? Could lawyers broadcast their ads? Canby said yes.
Then it was Frank’s turn. Canby was a plain speaker; Frank sprinkled his speech with quotes from Plato. “What you are asked to believe is that if you give your permission, the nation will be dotted with noble souls who will, by advertising, communicate . . . their desire to perform worthwhile and needed service at very low cost,” Frank orated. “This frankly visionary speculation overlooks the human experience, which tells us that you would be unleashing quite a different flood. The plain truth of the matter is that advertising law business leads to incompetence at best. . . . It leads to lying, cheating, and swindling at its worst.”
Frank went on to claim that the prices Bates and O’Steen were offering weren’t all that low. Justice Stevens asked what he thought the prevailing fee was for an uncontested divorce. (Bates and O’Steen advertised a $175 price, plus a $20 court fee.) Frank said that they normally ran from about $150 to $300. “I’ve handled them myself for anything in that whole zone,” he asserted. “It is not some spectacular bargain.”
Bates had to restrain himself from shouting. This guy was one of Arizona’s most prominent lawyers; he wasn’t taking on divorce cases and, even if he were, he’d be charging ten times the nominal amounts that Bates and O’Steen were asking. “Did you hear that?” Bates whispered to O’Steen.18 A guard nearby pointed at Bates, mouthed “next time,” and motioned with his thumb to signal he’d be kicked out.
Frank ended his speech with a plea for the justices not to allow the legal profession to pollute itself with self-promotion: “May it never be said that this profession was cheapened here, in this, its highest sanctuary.”
Five months later, O’Steen was getting ready for work when his phone rang. A reporter with the Associated Press was on the line. The decision in their case was just coming in over the teletype. O’Steen could hear the machine clattering in the background. The reporter started reading the ruling aloud. “You won,” he said.19
The decision was five to four. Harry Blackmun, writing for the majority, crafted what was supposed to be a narrow opinion. The only type of advertising that the court was explicitly upholding were ads that listed “routine” services and prices. The Arizona rule “serves to inhibit the free flow of commercial information and to keep the public in ignorance,” Blackmun wrote.
But the minority saw what lay ahead. In his dissent, Lewis Powell noted that there was no reason that the ruling should not apply to other media—whether television or park benches. And “routine” was such a subjective, malleable word as to be almost meaningless. “I am apprehensive, despite the court’s expressed intent to proceed cautiously, that today’s holding will be viewed by tens of thousands of lawyers as an invitation—by the public-spirited and the selfish lawyers alike—to engage in competitive advertising on an escalating basis. Some lawyers may gain temporary advantages; others will suffer from the economic power of stronger lawyers, or by the subtle deceit of less scrupulous lawyers.”
O’Steen called Bates and Canby. They met in the clinic’s office. “We were overjoyed,” Bates recalled. “We felt like we were on top of the world.” That afternoon, the Arizona bar association called a news conference to discuss the ruling. Bates and O’Steen showed up, uninvited, wearing suits and ties. The event was in a large meeting room in a downtown high-rise. As it ended, the journalists realized that Bates and O’Steen were in the audience, and a scrum formed around them. An Arizona Republic photographer snapped a shot of them, O’Steen clean-shaven with a shaggy head of hair, Bates with a bushy beard and a receding hairline. The photo ran in Newsweek—along with an image of “their landmark ad”—in a piece headlined “Advertisers-at-Law.”
The court’s decision would soon unleash havoc. One early harbinger involved the breakup of Bates and O’Steen. Bates saw his mission as helping the poor. Same with O’Steen, except he didn’t see anything wrong with making money in the process. He sensed an opportunity to cash in on his newfound fame and the end of the prohibition on self-promotion. O’Steen told Bates that he wanted them to go their separate ways. Bates, surprised and hurt, could tell O’Steen had made up his mind and didn’t bother arguing.
Soon, the new O’Steen Legal Clinic was hitting the airwaves—the first TV ads for lawyers in Arizona. A camera followed O’Steen as he walked around his smart new offices, talking about divorce, about personal injuries, about how he had fought all the way to the Supreme Court to make legal services available to the masses. Each time a spot aired, the office’s switchboard would light up with calls. His little clinic grew into a decent-sized firm, with ten lawyers and five thousand square feet of office space.20 He’d land in a special issue of Esquire, alongside Eddie Murphy and Bruce Springsteen, as a member of “America’s New Leadership Class.” The magazine ran a photo of a smiling O’Steen showing off his firm’s ad in the Phoenix Yellow Pages.
Bates was left with a sour taste in his mouth. There was something off-putting about O’Steen’s self-promotion—and how effective it was. Not long after, he returned to public service, working in the Arizona attorney general’s office. In 1992, he and his wife and their one-year-old son moved to Ohio. Bates now has a small law practice focused on personal bankruptcy cases. The two old friends haven’t spoken in many years.21
Soon there would be newspaper ads and radio spots and billboards for lawyers blanketing the country. Other changes were subtler. It wasn’t just that ads were now permissible; as bar associations loosened their chokeholds, all manner of self-promotion became kosher.
By 1985, there were forty law firms that employed marketing directors (up from zero), and the number would soar to two hundred by the end of the decade.22 There was even a National Association of Law Firm Marketing Administrators.23 To raise their public profile, lawyers were encouraged to speak to journalists without fearing penalties from their local bar associations.
Dick Pogue had been closely tracking the Goldfarb and Bates cases. He briefed Allen Holmes on their significance. Holmes “was very farsighted, and he could see there would be significance if it came down the wrong way, which it did,” Pogue recalled.24 He tasked Pogue with explaining to the firm’s partners that it was now “perfectly proper” to solicit business, to market themselves. The partners gathered at the Union Club, around the corner from Jones Day’s offices. More than forty years later, Pogue could still remember the shock on the lawyers’ faces as he informed them that they were freed from centuries of professional norms. “They looked at me like I was from Mars,” Pogue told me. “They just couldn’t accept it. It was so drastically contrary to everything we had learned to accept.”
After briefing the skeptical partners, Holmes and Pogue went to see Henry Eaton, whose PR firm, Dix & Eaton, was the best in Cleveland. “We’d like to see if it would be appropriate to get our name out,” Pogue ventured to the spin doctor. The goal was to spread the word about Jones Day’s accomplishments. Soon, Dix & Eaton was issuing a steady stream of press releases trumpeting Jones Day’s victories. “It worked!” Pogue marveled. New clients noticed and hired the firm.25
Others took things even further. One of the country’s oldest firms, Cadwalader, set out to shed its stodgy image. Branding experts recommended a complete overhaul. Ditch the ancient maritime practice. Stop requiring people to wear three-piece suits. The firm went all-casual—and then decided to announce it to the world. Cadwalader brought in folks from Polo Ralph Lauren and Esquire magazine to teach the lawyers how to pull off casual attire with style and flair.26 A flurry of articles about lawyers in pastels popped up, thanks to the firm’s newly ambitious marketing department.
Then someone came up with the idea of a fashion show. The venue was the Polo Ralph Lauren store on New York’s Madison Avenue.27 Cameras flashed as Cadwalader’s lawyers strutted their khakis on the catwalk.28