Lawyer Advertising: Louisiana State Regulations and the First Amendment
The following is a guest post by Roy Ginsburg.
In the famous 1977 Bates decision, the U.S. Supreme Court recognized that lawyers have First Amendment rights, too; legal advertising is constitutionally protected commercial speech. Prior to that, state’s ethics rules prohibited all advertising — and we never saw any of those amusing (and not so amusing) lawyer commercials on television.
Since then, the states adopted and continue to revise a variety of disciplinary rules aimed at regulation of all forms of lawyer marketing and advertising. All state rules provide that when lawyers communicate anything about who they are, or what they do, the communication cannot be “false and misleading.” In other words, thou shall not lie. If you do, you will be disciplined. Sound simple?
You would think so, but — when lawyers regulate other lawyers — they still act just like lawyers. Certain states feel compelled to spell out in detail precisely what the regulators consider to be a “false and misleading” communication.
In their enthusiasm, some regulators forget what they learned about the First Amendment in Constitutional Law in their first year of law school. Consider, for example, Louisiana — which adopted lots of new rules in 2009. Many of these rules were challenged on First Amendment grounds. Here’s what the U.S. Court of Appeals for the Fifth Circuit had to say in Public Citizen v. Louisiana Attorney Disciplinary Board:
Rules Struck Down
Testimonials
The Louisiana rule prohibited testimonials that addressed past results. The Court concluded that such a blanket prohibition was unconstitutional because it prevented lawyers from presenting truthful and non-deceptive information.
Portrayal of a Judge or Jury
The rule prohibited a communication containing a picture of a judge or a jury.” No go” said the Court. It is certainly possible to use such portrayals in ways that are not misleading or deceptive.
Print Size and Speed of Speech of Disclaimers and Disclosures
Think drug ad disclaimers. Are they “false and misleading” because they are in small print or delivered rapidly? The Court said that Louisiana’s attempt to regulate lawyer advertisement disclaimers went too far. The rule did not seem reasonably related to preventing consumer deception and, as a practical matter, prevented lawyers from using short ads.
Rules Upheld
Use of Slogans
The new rule banned the use of a nickname, moniker, motto or trade name that states or implies an ability to obtain favorable results. The Court believed that consumer confusion was possible.
Promising Results
You cannot do that, said the Fifth Circuit, because “no attorney can guarantee future results.”
Dramatizations
Disclaimers are needed. Evidently, consumers of legal services are unable to tell the difference between a dramatization and “actual and authentic” unless there is a disclaimer. Maybe all of those TV reality shows need a disclaimer to help us tell the difference between dramatization and “actual and authentic.”
Significance for Solos
Why is the Fifth Circuit’s decision important to solo and small law firm practitioners? First, it is a good reminder to review your state’s Rule 7 – which is where you find the advertising/marketing rules. As a coach for lawyers, I always remind my clients of these rules when we discuss business development efforts. It only takes 5-10 minutes — at most. The good news is that most states are not as restrictive as Louisiana. The bad news is that some states are (e.g. Florida, New York, Texas).
Since many of you are advertising 24/7 on your websites, it is more important than ever that you be aware of these rules – which do apply to the information provided on your website. Do not play fast and loose with your content. Doing so can generate an unexpected call from a disciplinary official.
Roy Ginsburg is an attorney coach in the areas of business development, practice management and career development/transitions. He helps his nationwide clients achieve individualized practice goals and career satisfaction.
He is also a solo practitioner and practices in the area of legal marketing ethics. One of his clients is Super Lawyers magazine. A few years ago, he helped lead this publication’s successful defense in the “Opinion 39” case — when regulatory officials in the State of New Jersey attempted to prohibit lawyers from advertising their selection by the magazine. www.royginsburg.com
Roy and Carolyn:
As a Louisiana attorney, I have been following the course of this case for a while now. I am interested to see what rules develop as a result. One of the most troubling aspects for me, at least in the Louisiana case, was that the rules were supported with ex post facto survey results, but the survey results were from a survey done with mostly lawyers – not actual consumers. The other difficult and frustrating aspect is that while an attorney must have the ad approved by state ethics counsel (and pay for such approval), the approval holds no weight in any subsequent disciplinary action.
While I do appreciate the need to prevent “false and misleading” advertising, I do not believe further regulation is the way to go. We’ll see how other courts respond, and what the Supreme Court eventually says.
LB