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1976 NSBA Newsl. 1 (1976)

handle is hein.barjournals/neblwr1976 and id is 1 raw text is: nsba            r
nebraska state bar association /1019 sharp building/lincoln nebraska 68508/402-q75-7091

January 1976


by NSBA Preident At Elick
One of the most provocative
issues facing lawyers today
is the extent to which the
Code of Professional Respon-
sibility should be amended
to permit ''advertising.
The background of the move-
ment to liberalize the Code
is familiar to all of us.
In the now famous Goldfarb
case the US Supreme Court
held that a minimum fee
schedule, which is enforced
by the Bar, is an unreason-
able restraint of trade in
violation of section 1 of
the Sherman Act. Signifi-
cantly, the Court said that
there is no learned pro-
fession exemption from
that section. The question
of whether advertising re-
strictions on the legal
profession are an unreason-
able restraint of trade was
left unanswered, but the
omens are not encouraging.
Lawsuits now pending in
Virginia and New York pre-
sent sweeping attacks upon
all Code advertising limit-
ations under both the First
Amendment and section 1 of
the Sherman Act. The con-
stitutional and antitrust
problems posed by these
cases must be taken serious-
ly. But aside from the
(continued on p. 10)


Elimination of the ban on
lawyer advertising as a
means to improve delivery
of legal services to the
public is reflected in a
tentative draft written by
the ABA Standing Committee
on Ethics and Professional
Responsibility and released
Dec. 6. The proposed amend-
ments would remove all re-
strictions against adver-
tising, except any public
communication containjng a
false, fraudulent, mislead-
ing, deceptive or unfair
statement or claim. The
amendments would not affect
the Code's prohibitions
against lawyers soliciting
business on a one-to-one
The Ethics Committee held
two public hearings on the
subject prior to making its
recommendations. It is now
seeking further comments
from the bar and the public
and will make a further
evaluation before submitting
a formal proposal to the ABA
House of Delegates in Feb-
ruary at the Mid Year Meeting.
Under the suggested changes,
lawyers would be allowed to
state that they limit their
practice to a particular
area or field of law, or
that they concentrate their
practice in one or more
areas. Also, lawyers who
are Certified Public Ac-
countants could publicly

identify themselvcs as such
and could practice law and
accounting in the same office.
The committee defined a
false, fraudulent, mislead-
ing, deceptive or unfair
statement or claim as one
including a statement or
claim  which:  (1) contains
a misrepresentation of fact.
(2) makes only a partial
disclosure. (3) contains a
client's laudatory comments
about a lawyer. (4) Creates
false or unjustified expec-
tations. (5) Implies unusual
legal ability, except as al-
ready permitted. (6) States
legal fees, other than a
standard consultation fee or
average fees for specific
types of services, without
fully disclosing all variables
and other relevant factors.
(7) implies the ability to
influence improperly a judge
or administrative tribunal.
(8) Is likely to result in
legal action taken or asser-
ted merely to harass or mal-
iciously injure another.
(9) Is intended to appeal
primarily to a lay person's
fears, greed or desires for
revenge. (10) Contains
representations that will
cause a reasonable person
to be deceived.
The issue of advertising
will be discussed at the
NSBA Mid-Year Meeting in
Grand Island April 9. See
related stories, pp. I & 2.

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