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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at esvenson@gmail.com.
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May 10, 2005

The Wacky and Endlessly Confusing World of Lawyer Advertising Regulations

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Posted by Dennis M. Kennedy

On The Trademark Blog, Marty recently pointed to a story about a "controversial" ad by a Florida law firm that was originally determined to be iimpermissible, at least until cooler heads prevailed.

In the ad, the Florida firm had the unmitigated audacity to use a print ad that featured a row of ice cream cones, with the final ice cream cone in the row (note to lawyers: this ice cream cone metaphorically represented the law firm) having three scoops of ice cream rather than the single scoop found in the other cones.

However, it was neither the use of pictures nor the use of metaphors that caused the concern.

The ad had a tagline that said: "expect more from your law firm." No, it wasn't even the lack of initial capitalization that caused the problem.

Instead, the problem was this: "the phrase 'Expect [sic] more from your law firm' created 'unjustified expectations about results the attorney can achieve' and 'compares the services of one attorney to another without factually substantiating the comparison.'"

In a nutshell, there you have the lay of the land in the sometimes incomprehensible world of lawyer advertising.

The good news is that the Florida authorities reversed their decision. The bad news is that there is a regulatory environment that provides disincentives for lawyers and law firms to use any kind of normal (meaning "effective") advertising methods while seemingly ignoring what would seem to be violations of advertising rules if you could even figure out what the rules mean.

I've complained about this state of affairs before (here, here and here, for example). My belief is that it is too difficult for a well-intentioned law firm or lawyer who wants to comply with all of the rules to have any confidence that they have done so with any level of confidence.

I've also studied and tried to comply with the advertising rules for lawyers for the ten years that I've had a website. I wrote about and spoke about these issues nearly ten years ago. I think I know the rules and the decisions interpreting these rules pretty well.

And I don't have a clue about what you can and can't do anymore. The wheels on this train went off the track a while back and it's time to give some thought to getting things back on a track that makes sense for 2005 and beyond. Who was being protected by the first decision of the Florida authorities about teh ice cream cone ad?

Let's discuss.

Here's a quiz. Can you spot at least three issues raised by the following seemingly innocuous description of a law firm and its services under common interpretations of the ethical rules covering lawyer advertising?

XYZ law firm is a national full-service law firm with offices in the eastern United States. XYZ has the breadth and depth of resources to deliver the highest quality legal services to a broad range of individual, corporate, nonprofit and government clients.

ANSWER:

(1) Use of term "national" when they only have offices in eastern US.

(2) "full-service" has been considered an inaccurate, misleading term, based on the reasoning used with ice cream cone ad.

(3) "highest quality" is, of course, not objectively provable and at least implies a comparison to other lawyers.

You may have additional answers.

What, then, is the purpose of these rules and do they (and state-based regulation in general) make sense in 2005? I simply ask the question.

Comments (2) + TrackBacks (0) | Category: Legal Ethics and Advertising


COMMENTS

1. Rob Hyndman on May 10, 2005 2:14 PM writes...

The purpose of the rules is to prohibit the development of a business climate in which lawyers compete against each other for the client's business, at least on terms that are reasonably objectively determinable (like price and quality). [Note to self: must ... resist ... urge ... to ... kvetch] Such a climate would inevitably lower price.

If we don't compete with each other, someone else will do the competing for us. See, eg, the recent proposals in the UK to open up the practice of law to non-traditional forms of service providers. Also, of course, see generally the debate on outsourcing, etc.
We need to get ready for this. Allowing us to advertise, at least value comparisons, would be an important start.

Me, I have virtually nil overhead, I can afford to kvetch. But if this doesn't happen, I think I'm going to plotz.

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2. Will Hornsby on May 11, 2005 12:41 PM writes...

Your quiz is quite great. It is hard to believe that ethics committees could come to those conclusions, even though they have done so in the face of the preamble to the rules stating that "The Rules of Professional Conduct are rules of reason."

In light of these restrictive interpretations, the ABA amended Model Rule 7.1, which sets the standard for false or misleading communications, in 2002. The prior model, which continues to be in effect in the vast majority of states, goes well beyond a prohibition of statements that are material misrepresentations. MR 7.1(b) had prohibited communications that created unjustified expectations, and hence the ban against stating "full service." MR 7.1(c) prohibited unsubstantiated comparisons, banning superlatives like "highest quality."

In 2002, the ABA amended MR 7.1 to focus on material misrepresentations. The prohibitions of creating unjustified expectations and unsubstantiated comparisons were removed from the rule itself. The comment now explains that a communication that leads a reasonable person to the belief that the same result could be obtained for similar clients could be a misleading statement. Similarly, a communication that leads a prospective client to the belief that an unsubstantiated comparison is substantiated would be impermissible. The comment also encourages the use of disclaimers to avoid deception on these issues. These changes were designed to better strike the balance between the need for lawyers to communicate information about their services and the need to protect people from misrepresentations.

Returning to your quiz, the representation that the firm is national may continue to be troubling if the firm lacks the capacity to provide services nation-wide. But the other items would almost certainly be considered harmless puffery under the current version of MR 7.1. Unfortunately, several states are taking a pass on the implementation of these changes.

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