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?
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.
(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.