Supreme Court to liberalize its anti-lawyer advertising rule and to

open the door to the possibility of allowing ethical, truthful, accurate

and dignified lawyer advertising, thus, giving due respect to the
lawyers' freedom of commercial speech and giving the consumers
of legal services a fair opportunity to access accurate information
about the Bar, the pricing of its legal services, and other law market
information. We must modernize our way of looking at things.

G.R. No. L-32329 March 23, 1929

In Re: LUIS B. TAGORDA

53 Phil 37 Legal Ethics Malpractice Solicitation of

Legal Business Advertisement in the Legal Profession
Stirring Up of Litigation
In 1928, Luis Tagorda was a provincial board member of
Isabela. Before his election, he campaigned that he is a
lawyer and a notary public; that as a notary public he
can do notarial acts such as execution of deeds of sale,
etc.; that as a lawyer, he can help clients collect debts;
that he offers free consultation; that he is willing to serve
the poor.
When he won, he wrote a letter to the barrio lieutenant
of Echague, Isable advising the latter that even though
he was elected as a provincial board member, he can
still practice law; that he wants the lieutenant to tell the
same to his people; that he is willing to receive works
regarding preparations of sales contracts and affidavits
etc.; that he is willing to receive land registration cases
for a charge of three pesos.
ISSUE: Whether or not Tagorda is guilty of malpractice.
HELD: Yes. Tagorda admitted doing the foregoing acts.
The practice of soliciting cases at law for the purpose of
gain, either personally or through paid agents or brokers,
constitutes malpractice.
The most worthy and effective advertisement possible,
even for a young lawyer, and especially with his brother
lawyers, is the establishment of a well- merited
reputation for professional capacity and fidelity to trust.
This cannot be forced, but must be the outcome of
character and conduct. Solicitation of business by
circulars or advertisements, or by personal
communications or interviews not warranted by personal
relations, is unprofessional. It is equally unprofessional to
procure business by indirection through touters of any
kind, whether allied real estate firms or trust companies
advertising to secure the drawing of deeds or wills or
offering retainers in exchange for executorships or
trusteeships to be influenced by the lawyer. Indirect
advertisement for business by furnishing or inspiring
newspaper comments concerning the manner of their
conduct, the magnitude of the interests involved, the
importance of the lawyers position, and all other like
self-laudation, defy the traditions and lower the tone of
our high calling, and are intolerable.
It is unprofessional for a lawyer to volunteer advice to
bring a lawsuit, except in rare cases where ties of blood,
relationship or trust make it his duty to do so.
Tagordas liability is however mitigated by the fact that
he is a young inexperienced lawyer and that he was
unaware of the impropriety of his acts. So instead of
being disbarred, he was suspended from the practice of
law for a month.

In Tagorda,18 the Supreme Court interpreted these provisions as

proscriptions against advertising the practice of law, and imposes a
prohibition
against the use of media to make known legal services, save for certain
exceptions.
For example, a lawyer may make known his legal services in a
newspaper by writing an article that gives information on the law. The only
prohibition is that he or she should not accept employment from such
publications in order to advise inquiries as to the readers individual rights.

G.R. No. 32329, 54 Phil 37 (1929).

This more relaxed view of lawyer advertising is reflected in a fairly

recent Philippine Supreme Court decision. In a 2003 case entitled Khan vs.
Simbillo,84 Atty. Simbillo was found guilty of violating Rule 2.03 and 3.02 of
the
Code of Professional Responsibility and Sec. 27 Rule 138 of the Rules of
Court
for advertising his services in a Philippine Daily Inquirer ad which read
Annulment of Marriage Specialist 532-433/521-2667. Citing the case of
Ulep (MauricioUlepvsTheLegalClinic 223 SCRA 378)
vs. Legal Clinic, the court reiterated that not all forms of solicitation may
be
proscribed by the Code of Professional Responsibility. The Supreme Court
held:
The solicitation of legal business is not altogether proscribed.
However, for solicitation to be proper, it must be compatible with the dignity of
the legal profession. If it were made in a modest and decorous manner, it would
bring no injury to the law and to the bar. Thus, the use of simple signs
stating the name or names of the lawyers, the office, and the
residence address and fields of practice, as well as advertisements in
legal periodicals bearing the same brief data and the use of calling
cards are permissibleThe publication in reputable law lists, in a
manner consistent with the standards of conduct imposed by the
canon, of brief biographical and informative data is likewise
allowablea lawyer may not properly publish his brief biographical
and informative data in a daily paper, magazine, trade journal or
society program.85
G.R. No. 157053 (2003).

Thus, if certain types of lawyer advertising were to be allowed, then

there must be a vigilant regulatory agency to ensure that such advertising
does
not go beyond prescribed limitations.86

Websites, whether framed as standard practice information sites,

blogs, or profile pages in social networking sites, are in most instances a
form
of advertising. In informing users of the availability of services, and in
providing information partly aimed at convincing users of the desirability of
engaging a particular lawyer or law firm, websites may be considered as a
proposal to contract with prospective clients.87 Consequently, such
communications constitute advertising.88 States have consistently treated
websites as advertising, and therefore subject to regulation against false,
misleading, or deceptive content.89 Given the correspondence between our
local ethical rules and those of various jurisdictions in the U.S., there is no
credible reason for departing from this view.
As held in Virginia Pharmacy Board vs. Virginia Consumer Counsel,
lawyers
do not dispense standardized products; they render professional services of
almost infinite variety and nature, with the consequent enhanced possibility
for
confusion and deception if they were to undertake certain kinds of
advertising.90 To avoid such confusion and deception, it has been held that
there must be an agency to regulate such advertising. The United States
Supreme Court underscored this when they said that in holding that
advertising by attorneys may not be subjected to blanket suppression, and
that
the advertisement at issue is protected, we, of course, do not hold that
advertising by attorneys may not be regulated in any way. 91 It was also held
that advertising that is false, deceptive, or misleading of course is subject
to
restraint.92

Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, Footnote
25
(1976).

Va.PharmacyBd.v.Va.ConsumerCouncil,425
U.S.748(1976)

VirginiaStateBoardofPharmacyv.

VirginiaCitizensConsumerCouncil,Inc.

No.74895

ArguedNovember11,1975

DecidedMay24,1976

425U.S.748

Syllabus
Appellees,asconsumersofprescriptiondrugs,broughtsuitagainst
theVirginiaStateBoardofPharmacyanditsindividualmembers,
appellantsherein,challengingthevalidityundertheFirstand
FourteenthAmendmentsofaVirginiastatutedeclaringit
unprofessionalconductforalicensedpharmacisttoadvertisethe
pricesofprescriptiondrugs.AthreejudgeDistrictCourtdeclared
thestatutevoidandenjoinedappellantsfromenforcingit.

Held:

1.AnyFirstAmendmentprotectionenjoyedbyadvertisersseeking
todisseminateprescriptiondrugpriceinformationisalsoenjoyed,
andthusmaybeasserted,byappelleesasrecipientsofsuch
information.Pp.425U.S.756757.

2."Commercialspeech"isnotwhollyoutsidetheprotectionofthe
FirstandFourteenthAmendments,andtheVirginiastatuteis
thereforeinvalid.Pp.425U.S.761773.

(a)Thattheadvertiser'sinterestinacommercialadvertisementis
purelyeconomicdoesnotdisqualifyhimfromprotectionunderthe
FirstandFourteenthAmendments.Boththeindividualconsumer
andsocietyingeneralmayhavestronginterestsinthefreeflowof
commercialinformation.Pp.425U.S.762765.

(b)Thebanonadvertisingprescriptiondrugpricescannotbe
justifiedonthebasisoftheState'sinterestinmaintainingthe
professionalismofitslicensedpharmacists;theStateisfreeto
requirewhateverprofessionalstandardsitwishesofits
pharmacists,andmaysubsidizethemorprotectthemfrom
competitioninotherways,butitmaynotdosobykeepingthe
publicinignoranceofthelawfultermsthatcompetingpharmacists
areoffering.Pp.425U.S.766770.
(c)Whatevermaybetheboundsoftime,place,andmanner
restrictionsoncommercialspeech,theyareplainlyexceededby

Page425U.S.749

theVirginiastatute,whichsinglesoutspeechofaparticular
contentandseekstopreventitsdisseminationcompletely.Pp.425
U.S.770771.

(d)Noclaimismadethattheprohibitedprescriptiondrug
advertisementsarefalse,misleading,orproposeillegal
transactions,andaStatemaynotsuppressthedisseminationof
concededlytruthfulinformationaboutentirelylawfulactivity,
fearfulofthatinformation'seffectuponitsdisseminatorsandits
recipients.Pp.425U.S.771773.

373F.Supp.683,affirmed.

It is entirely possible that advertising will serve to

reduce, not advance, the cost of legal services to the
consumer, and may well aid new attorneys in
entering the market.

433 U.S. 350

Bates v. State Bar of Arizona (No. 76-316)
Argued: January 18, 1977
Decided: June 27, 1977

Appellants, who are licensed attorneys and members

of the Arizona State Bar, were charged in a complaint
filed by the State Bar's president with violating the
State Supreme Court's disciplinary rule, which
prohibits attorneys from advertising in newspapers
or other media. The complaint was based upon a
newspaper advertisement placed by appellants for
their "legal clinic," stating that they were offering
"legal services at very reasonable fees," and listing
their fees for certain services, namely, uncontested
divorces, uncontested adoptions, simple personal
bankruptcies, and changes of name. The Arizona
Supreme Court upheld the conclusion of a bar
committee that appellants had violated the rule,
having rejected appellants' claims that the rule
violated 1 and 2 of the Sherman Act because of
its tendency to limit competition, and that it
infringed appellants' First Amendment rights.
Held:
1. The restraint upon attorney advertising imposed
by the Supreme Court of Arizona wielding the power
of the State over the practice of law is not subject to
attack under the Sherman Act. Parker v. Brown, 317
U.S. 341, followed; Goldfarb v. Virginia State Bar,
421 U.S. 773; Cantor v. Detroit Edison Co., 428 U.S.
579, distinguished. Pp. 359-363.
2. Commercial speech, which serves individual and
societal interests in assuring informed and reliable
decision making, is entitled to some First
Amendment protection, Virginia Pharmacy Board v.
Virginia Consumer Council, 425 U.S. 748, and the
justifications advanced by appellee are inadequate to
support the suppression of all advertising by
attorneys. Pp. 363-384.
(a) This case does not involve any question
concerning in-person solicitation or advertising as to
the quality of legal services, but only the question
whether lawyers may constitutionally advertise the
prices at which certain routine services will be
performed. Pp. 366-367.
(b) The belief that lawyers are somehow above
"trade" is an anachronism, and for a lawyer to
advertise his fees will not undermine true
professionalism. Pp. 368-372.
(c) Advertising legal services is not inherently
misleading. Only routine services lend themselves to
advertising, and, for such services, fixed rates can
be meaningfully established, as the Arizona State
Bar's own Legal Services Program demonstrates.
Although a client may not [p351] know the detail
involved in a given task, he can identify the service
at the level of generality to which advertising lends
itself. Though advertising does not provide a
complete foundation on which to select an attorney,
it would be peculiar to deny the consumer at least
some of the relevant information needed for an
informed decision on the ground that the information
was not complete. Pp. 372-375.
(d) Advertising, the traditional mechanism in a free
market economy for a supplier to inform a potential
purchaser of the availability and terms of exchange,
may well benefit the administration of justice. Pp.
375-377.
(e) It is entirely possible that advertising will serve
to reduce, not advance, the cost of legal services to
the consumer, and may well aid new attorneys in
entering the market. Pp. 377-378.
(f) An attorney who is inclined to cut quality will do
so regardless of the rule on advertising, the
restraints on which are an ineffective deterrent to
shoddy work. Pp. 378-379.
(g) Undue enforcement problems need not be
anticipated, and it is at least incongruous for the
opponents of advertising to extol the virtues of the
legal profession while also asserting that, through
advertising, lawyers will mislead their clients. P. 379.
3. The First Amendment overbreadth doctrine, which
represents a departure from the traditional rule that
a person may not challenge a statute on the ground
that it might be applied unconstitutionally in
circumstances other than those before the court, is
inapplicable to professional advertising, a context
where it is not necessary to further its intended
objective, cf. Bigelow v. Virginia, 421 U.S. 809, 817-
818, and appellants must therefore demonstrate
that their specific conduct was constitutionally
protected. Pp. 379-381.
4. On this record, appellants' advertisement
(contrary to appellee's contention) is not misleading,
and falls within the scope of First Amendment
protection. Pp. 381-382.
(a) The term "legal clinic" would be understood to
refer to an operation like appellants' that is geared
to provide standardized and multiple services. Pp.
381-382.
(b) The advertisement's claim that appellants offer
services at "very reasonable" prices is not
misleading. Appellants' advertised fee for an
uncontested divorce, which was specifically cited by
appellee, is in line with customary charges in the
area. P. 382.

Edenfieldv.Fane507U.S.761
(1993)

EDENFIELDETAL.v.FANE

CERTIORARITOTHEUNITEDSTATESCOURTOF
APPEALSFORTHEELEVENTHCIRCUIT

No.911594.ArguedDecember7,1992DecidedApril26,1993

RespondentFane,acertifiedpublicaccountant(CPA)licensedto
practicebytheFloridaBoardofAccountancy,suedtheBoardfor
declaratoryandinjunctivereliefonthegroundthatitsrule
prohibitingCPA'sfromengagingin"direct,inperson,uninvited
solicitation"toobtainnewclientsviolatedtheFirstandFourteenth
Amendments.Heallegedthatbutfortheprohibitionhewouldseek
clientsthroughpersonalsolicitation,ashehaddonewhile
practicinginNewJersey,wheresuchsolicitationispermitted.The
FederalDistrictCourtenjoinedtherule'senforcement,andthe
CourtofAppealsaffirmed.

Held:AsappliedtoCPAsolicitationinthebusinesscontext,
Florida'sprohibitionisinconsistentwiththefreespeechguarantees
oftheFirstandFourteenthAmendments.Pp.765777.

(a)Thetypeofpersonalsolicitationprohibitedhereisclearly
commercialexpressiontowhichFirstAmendmentprotections
apply.E.g.,VirginiaStateBd.ofPharmacyv.VirginiaCitizens
ConsumerCouncil,Inc.,425U.S.748,762.Ohralikv.OhioState
BarAssn.,436U.S.447,whichupheldabanoninperson
solicitationbylawyers,didnotholdthatallpersonalsolicitationis
withoutFirstAmendmentprotection.IndenyingCPA'sandtheir
clientstheconsiderableadvantagesofsolicitationinthe
commercialcontext,Florida'slawthreatenssocietalinterestsin
broadaccesstocompleteandaccuratecommercialinformationthat
theFirstAmendmentisdesignedtosafeguard.However,
commercialspeechis"linkedinextricably"withthecommercial
arrangementthatitproposes,sothattheState'sinterestin
regulatingtheunderlyingtransactionmaygiveitaconcomitant
interestintheexpressionitself.Thus,Florida'sruleneedonlybe
tailoredinareasonablemannertoserveasubstantialstateinterest
inordertosurviveFirstAmendmentscrutiny.See,e.g.,Central
HudsonGas&ElectricCorp.

(b)EvenundertheintermediateCentralHudsonstandardof
review,Florida'sbancannotbesustainedasappliedtoFane's
proposedspeech.TheBoard'sassertedinterestsprotecting
consumersfromfraudoroverreachingbyCPA'sandmaintaining
CPAindependenceandensur
762

Syllabus

ingagainstconflictsofinterestaresubstantial.However,theBoard
hasfailedtodemonstratethatthebanadvancesthoseinterestsin
anydirectandmaterialway.Agovernmentalbodyseekingto
sustainarestrictiononcommercialspeechmustdemonstratethat
theharmsitrecitesarerealandthatitsrestrictionwillinfact
alleviatethemtoamaterialdegree.Here,theBoard'ssuppositions
aboutthedangersofpersonalsolicitationbyCPA'sinthebusiness
contextarenotvalidatedbystudies,anecdotalevidence,orFane's
ownconduct;anditsclaimsarecontradictedbyareportofthe
AmericanInstituteofCertifiedPublicAccountantsandother
literature.Norcanthebanbejustifiedasareasonabletime,place,
ormannerrestrictiononspeech.Evenassumingthataflatbanon
commercialsolicitationcouldberegardedassucharestriction,the
banstillmustserveasubstantialstateinterestinadirectand
materialway.Pp.767773.

(c)Thebancannotbejustifiedasaprophylacticrulebecausethe
circumstancesofCPAsolicitationinthebusinesscontextarenot
"inherentlyconducivetooverreachingandotherformsof
misconduct."Ohralik,supra,at464.Unlikealawyer,whois
trainedintheartofpersuasion,aCPAistrainedinawaythat
emphasizesindependenceandobjectivityratherthanadvocacy.
Moreover,whilealawyermaybesolicitinganunsophisticated,
injured,ordistressedlayperson,aCPA'stypicalprospectiveclient
isasophisticatedandexperiencedbusinessexecutivewhohasan
existingprofessionalrelationwithaCPA,whoselectsthetimeand
placefortheirmeeting,andforwhomthereisnoexpectationor
pressuretoretaintheCPAonthespot.Inaddition,Ohralikinno
wayrelievesaStateoftheobligationtodemonstratethatits
restrictionsonspeechaddressaseriousproblemandcontributeina
materialwaytosolvingthatproblem.Pp.773777.

945F.2d1514,affirmed.