The legal aspects of lawyer advertising

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Nate Cade

Unfortunately as lawyers there are lots of rules that regulate our profession, and most of them are created by lawyers. Some rules deal with conflicts, some rules pertain to your interaction with your associates, employees and fellow partners, and some rules pertain to interaction with clients. And then we have the advertising rules.

Few professions regulate their advertising. Accountants are not regulated. Neither are bankers. And there are few limits on doctors. However, the Rules of Professional Responsibility control the message that a lawyer wishes to give to prospective clients with regard to her services and arguably the medium by which the message is given.

One has to ask whether, in today’s brave new world of the Internet, instant messaging and Google, the current advertising rules make sense, or, like anything dealing with technology, were they antiquated the minute they were drafted by the lawyers.

Recently Florida proposed, and New York modified, their respective rules with regard to lawyer advertising. In Florida, the State Bar Association recently promulgated a rule allowing lawyers to publish client testimonials and claims about past successes on their Web sites. As a compromise to the great debate that took place over the proposal, the client testimonials and claims of past successes cannot be published on the home page of a particular law firm, but have to be located on the inside of the Web page.

Another debate that came up in during the promulgation of the new rule proposal in Florida pertained to client testimonials. Specifically, the issued was whether a law firm must use technology to restrict a search on Google, for example, such that a searcher could not locate the client testimonial. That particular idea was dropped by the proponents.

Ultimately, in Florida, the proposal that is going to go before the Florida Supreme Court would allow client testimonials, although lawyers would have to publish a disclaimer. In addition, the testimonials have to be truthful, not misleading, and the disclaimers must indicate past results do not guarantee a future success. Interestingly enough, Florida in 1999 was one of the first states to have regulations about Web sites. So in a short eight years, its rules have become obsolete.

In New York, the high court issued new rules that were effective as of Feb. 1 of this year, and essentially enacted what some lawyers would consider Draconian rules and restrictions on lawyer advertising. For example, one rule would prohibit any lawyer from contacting a family in which someone was injured or killed in an accident for up to 30 days. This particular rule is not unusual and several states have it.

Another controversial rule, which was enacted and already has been challenged in court by an affected law firm, bans the use of monikers, nicknames and mottos. Thus, the members of O.J. Simpson’s defense team (assuming Johnny Cochran was still amongst us) could not call themselves the “Dream Team” in any advertisement. Some lawyers likely will face a ban from calling themselves “bulldogs,” “tough and smart,” “tough and big,” “big and smart,” etc.

The final rule among all the ones New York enacted regarding lawyer advertising, which made the most sense but perhaps will be the most difficult to discipline, is a rule that bans advertising that “uses techniques to obtain attention that demonstrated clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to their legal competence.”

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From what I gather and from what I’ve been told, a lawyer in Long Island allowed herself to be filmed for a commercial wearing provocative clothing while highlighting her real estate practice. Apparently, New York, in enacting the rules, agreed that her cleavage had very little to do with her real estate practice. I will avoid stating the many obvious and boorish jokes that come to mind.

What does this mean for you if you practice in Wisconsin? In the short term — very little. However, keep in mind that the rules are changing and with the scope of technology, with the advances in the Internet, with new media and mediums being developed and implemented such as You Tube, change will happen and eventually, there is a very strong possibility that a uniform law or rule on lawyer advertising will be enacted. Such a uniform rule makes sense.

The reach of the Internet, Google and all of the other electronic mediums that are now being employed are no longer restricted in scope to a certain geographical region. A simple Google search using the words “tough,” “smart,” “lawyer” and “drunk driving” produced approximately 650,000 hits. Now granted they are not 650,000 tough, smart lawyers that handle drunk driving, but the hits are not categorized by state, nor do the hits that show up on Google say you shouldn’t talk to that lawyer because she is in Florida.

Because the electronic medium knows no bounds, the rules themselves should know no bounds.

Keep in mind that in Wisconsin any form of advertisement that is done must be saved and maintained
for two years. And the advertisement must clearly indicate that it is an advertisement. While our rules are very, very simple and easy to understand, the change in the way the message is delivered dictates that Wisconsin practitioners need to brush up on the rules that relate to advertising and be very careful on how they get their messages out to the world.

In New York the rule is less cleavage, more brain.

Nate Cade is a partner practicing in litigation at Michael Best & Friedrich LLP, where he is a member of the firm’s Tort Liability Practice Group. He can be reached at [email protected].