Advertising

Freedom of Speech and Lawyer Advertising

However frowned upon by the legal establishment, perceived by the public as crass and undignified, or mocked by late-night comics, advertising is a popular means for obtaining legal clients. The United States Supreme Court has held that lawyer advertisement is “commercial speech” protected by the First and Fourteenth Amendments to the United States Constitution. This means that a state may establish reasonable regulations to prevent false or misleading advertising – although a straight ban on lawyer advertising would be unconstitutional. See Bates v. State Bar of Arizona, 433 U.S. 350 (1977).  The Supreme Court held that:

1. Advertising by licensed lawyers may not be “subjected to blanket suppression”;
2. Truthful advertising conveying the availability and terms (fees) for routine legal services is protected by the First Amendment; but
3. Reasonable restrictions may be imposed on the time, place, and manner of legal advertising; and
4. Advertising that is “false, deceptive, or misleading” is subject to restraint.

EXAMPLE: The state of New Fascia, in response to the public’s outcry against bland and thoughtless lawyer ads, imposed special new laws on lawyer advertising. Among the many new rules was one that prohibits lawyers from mailing cards to the public announcing the opening of a new office. A test case goes all the way up to the United States Supreme Court, which holds that unless the advertising is misleading or false, the prohibition violates the First and Fourteenth Amendments. See In re R.M.J., 455 U.S. 191 (1982).

As stated, the Supreme Court has held that lawyer advertising constitutes commercial speech. What does that mean for purposes of assessing constitutionality of a state’s regulation on lawyer advertising? When a party challenges a regulation in a court case, the court will apply a special form of scrutiny set forth by the Supreme Court for use in lawyer advertising cases. See Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). The scrutiny takes the form of a three-prong test, known as a type of “intermediate scrutiny”:

1. The government must show a substantial interest in support of its regulation on the advertising;
2. The government must demonstrate that the restriction on the commercial speech directly and materially advances the substantial interest; and
3. The regulation must be narrowly drawn. See Florida Bar v. Went For It, Inc., supra, citing Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). 

Here’s a rather straightforward application of the test:

The state of West Nyackica enacts a regulation related to lawyer advertising, banning all forms of deceptive, false, and misleading television ads. On a new television commercial airing just before dinnertime every day, Attorney Schmubble advertises, “I like you, you retain me…together we will achieve victory in the courts, whether by land or by sea!! Hire me, and you can’t lose!!!!” The ad shows Schmubble standing on top of a judge’s bench with a client, holding what appears to be a boxer’s championship belt. A jury of nine is applauding, and chanting “Not guilty! Not guilty!” throughout. The West Nyackica Bar’s Committee on Lawyer Advertising sues Schmubble to enjoin the broadcasting of his commercial. 

The court, accordingly, applies the three-prong test for the constitutionality of a commercial speech regulation: 

1. The court asks whether the government has a substantial interest in support of its regulation. It decides that the government surely has a substantial interest in ensuring that lawyer advertisements do not deceive or mislead clients.
2. The court asks whether the regulation’s ban on deceptive, false, and misleading ads directly and materially advances the government’s interest in protecting clients. The court finds that the ban does materially and directly advance the government’s interest, by ensuring that ads that falsely promise victory in court are not aired.
3. The court asks whether the regulation is narrowly drawn, and accordingly finds that it is. The ban only applies to certain types of lawyer television advertisements – including those that deceive the public about a lawyer’s ability to achieve victory in court. 

As such, the court finds that the regulation is constitutional. Subjecting Attorney Schmubble’s advertisement to the regulation, the court will find that the advertisement is deceptive, false, and misleading, and its broadcast should be enjoined. 

Here’s a real-life application of the three-prong intermediate scrutiny by the Supreme Court in a famous case mentioned above, Florida Bar v. Went For It, Inc., supra. The Florida bar led a study on how lawyer’s ads affect the public. The results led the bar to adopt a rule to protect accident victims and their families from what was perceived as harassment by plaintiffs’ lawyers. The rule prohibited lawyers from sending any targeted direct-mail solicitations to victims and their families for 30 days after an accident or disaster. The United States Supreme Court applied the three-prong test, and found that the regulation was constitutional. The Court held: 

1. The Florida bar had a substantial interest in protecting the privacy of its citizens, as well as in preserving the dignity of the legal profession;
2. Studies showed that the public was continuously offended by the direct-mail solicitations, and that the 30-day rule advanced the state’s interest in protecting privacy and upholding the bar’s dignity. 
3. That the regulation was narrowly tailored – it did not chill constitutionally protected speech. (“Chilling speech” is a term used for the fear that a law regulating a form of speech will stop people from expressing themselves out of fear of running afoul of the rules.)

Basic Lawyer Advertising Rules

Model Rule 7.1 holds that any type of communication about a lawyer’s services that is false or misleading will subject a lawyer to discipline. It doesn’t matter whether the communication is technically an advertisement; the ban applies to personal communications, signs, business cards, letterheads, letters, and telephone answering machine messages. 

But what do the rules mean by “false or misleading” communications? The Model Rules list types of communications that fall under this heading:

a) Misstating or Omitting Material Information
Model Rule 7.1 holds that material misstatements or omissions of fact or law that make a statement materially misleading are prohibited. 

EXAMPLE: Attorney Handle, a popular bankruptcy lawyer, puts an ad in the Yellow Pages: “You need to declare bankruptcy? We can help you liquidate! Your creditors will be satisfied! Wipe the slate clean!” However, the Attorney knows that very few clients, if any at all, will be entitled to start all over without debts just by selling their assets in a Chapter 7 bankruptcy proceeding. Most will have to endure a long, drawn-out Chapter 11 process, in which a creditors’ committee establishes for the debtor a schedule of payments that might last for years. The ad therefore misstated the truth about the experience of filing for bankruptcy. It also omitted information about the difficulties of “wiping the slate clean.” 

b) Creating Unjustified Expectations
Generally, this rule prevents lawyers not only from advertising that clients will “win” a case, but the rule also prevents lawyers from making statements about results obtained for a particular client. The rule also disallows the practice of citing a lawyer’s court victory record, as if it were a sports team’s win/loss record. Also, it is unethical for a lawyer to imply that he knows how to manipulate the law “properly,” or that he has undue influence over people who can help a client achieve results. See Model Rule 7.1.

c) Making Unverifiable Comparisons
Rule 7.1 also prevents a lawyer from comparing her services to those of other lawyers, unless the comparison can be substantiated by fact. 

For example, a lawyer would find it difficult to defend an advertisement that described himself as the “smartest and best educated attorney in the county!!!” because such boasts are not reasonably verifiable, even if the attorney attended the highest-ranked law school in the nation and has a genius-level IQ score.

Individual state ethical rules may regulate by subtle variations of the above. For example, California’s Business and Professional Code, section 6157.2, prohibits communications containing the following: 

• guarantees or warranties about a case’s outcome;
• Words or symbols suggesting a lawyer can obtain quick cash or a quick settlement for a client; 
• An impersonation of a lawyer or client without disclosing that the advertisement contains an impersonation;
• A dramatization of an accident without disclosing that it is a dramatization;
• An offer for a contingent fee that fails to explain who will be paying litigation costs, and how they will be paid. 

Other rules provide that every advertisement must include the name of at least one lawyer responsible for the advertisement’s content (Model Rule 7.2(d)). This rule is designed to provide evidence for the disciplinary authorities if a complaint about the advertisement is filed. 

Communication of a Specialty

An important regulation on advertising has to do with the means by which lawyers communicate their fields of practice or specialties. The ethical rules are concerned that lawyers will make the public think that they are specialists in certain areas of the law when they are not necessarily any more skilled in the particular field than any other lawyer. 

Lawyers are trained in school to handle any sort of legal problem. They learn how to research a law and apply the facts to what they find so as to provide a legal opinion. Many lawyers might frown upon the notion that lawyers should be “pigeonholed” into one particular area. In practice, however, most lawyers limit their work to only a few areas of the law. 

The ethical rules entitle a lawyer to state that she practices in certain areas of the law. However, the lawyer is not entitled to hold herself out as a “specialist” in a particular field unless she complies with certain rules. The bar is concerned with standardizing the means by which a lawyer communicates her specialty, so as not to cause public confusion about credentials. 

Some states certify lawyers as specialists in various fields of law. In those states, when a lawyer is certified, she may communicate this to the public, but must reveal the certifying agency in her advertisement. See Model Rule 7.2(c). Certain private organizations also offer certifications that are approved by individual states. A lawyer may hold herself out to the public as a specialist if the lawyer reveals the state-approved certifying organization. If the state has not yet approved the certification, the lawyer must reveal this in her advertisement. See Model Rule 7.2(c).