Questionable content in some legal advertising could cause trouble for the entire profession.
They're easily recognizable tricks of the trade. Anything from images of snarled and charred automobiles to catchy slogans that all seem to point to a common theme. You + something bad = money.
States from Texas to New York have spent the last decade or so trying to tone down some of the advertising coming from their attorneys, with a finger pointed squarely at the plaintiff attorneys. Louisiana is now looking to make a similar move, but some worry the proposed restrictions will add an undue burden on those who aren't the real targets of the regulations.
Sen. Rob Marionneaux, a Democrat from Livonia and himself an attorney, is one of those leading the charge for the new regulations in Louisiana. "I've watched the degradation of our profession over the years, and I think it's in large part because of the commercials on TV," he says.
Marionneaux proposed the new regulations in the Senate as SB 617 in the 2006 regular session. He was approached by the state Supreme Court, which requested the bill be turned into a resolution since the state's high court is the body charged with overseeing the behavior and practices of attorneys. The resolution was made, asking the Supreme Court to set up a committee to establish advertising regulations and to report to the Legislature with its proposals.
The Supreme Court committee teamed up with the Louisiana State Bar Association's Rules of Professional Conduct committee, and the result was almost 30 pages of language outlining what is and isn't allowed when an attorney advertises in Louisiana. The amendments to the LSBA's Rules of Professional Conduct are still being studied by both committees but may be ready to be voted on by the bar association's House of Delegates in June. If the house recommends them to the Supreme Court, it would be the court's decision on whether to implement them.
Hearings were held last November in Baton Rouge, Lafayette, New Orleans and Shreveport to allow the public to comment and give feedback regarding the proposed amendments. "The Lafayette hearing was well-attended; there was a good representation of people," says Frank Neuner, immediate past president of the state bar association. "It was a good dialogue that lasted several hours."
Believing the public's perception of the legal profession has been negatively influenced by the proliferation of lawyer advertising over the past two decades, Neuner had hoped to effect change before his tenure was up last year. In fact, in mid-2005 ' about a year before Marionneaux's SB 617 ' the state bar association formed a rules subcommittee and charged it with reviewing lawyer advertising and solicitation guidelines. "And then Katrina hit, and everything kind of got pushed back," Neuner says. The Lafayette attorney, whose practice focuses on corporate defense litigation, notes that while Lafayette has its share of questionable legal advertising, the problem may be worse in Baton Rouge and New Orleans. "It seems [the ads are] wilder over there, cars crashing, the billboards saying, 'cash for crashes,'" he says.
Local personal injury attorney Richard Broussard also counts himself among those strongly advocating regulation. "Regulation is needed because much of what we see now is misleading and directs clients with legitimate claims to attorneys who may be the best at advertising but who lack experience and skill in handling important cases," Broussard says.
"There's a balance here," Marionneaux adds. "A balance between the rights of the advertisers and the harm done to the profession."
Attorneys get a pass when it comes to communication by lawyers for nonprofit organizations. Those aren't considered advertisements as long as the attorney is not participating for monetary gain. But that's about where the breaks end.
For written advertising or unsolicited written communication, the material is required to contain the name of at least one lawyer responsible for the content. It must also include the office location of the lawyer performing the services, and if there is a telephone number in the ad from a different area than where the office is listed, there must be language in the communication explaining why.
Attorneys cannot promise results, use testimonials of past results, provide any misleading or deceptive information, make any comparisons to other attorneys' services that cannot be factually substantiated or use a paid testimonial or endorsement unless the fact of pay is disclosed.
Firms are allowed to include photographs of member attorneys as long as they are taken against a plain background. Otherwise, images are greatly restricted. Ads cannot include a portrayal of a client by a non-client or the re-enactment of anything that is not authentic. Images cannot resemble any legal document. Visuals including a judge, jury, the portrayal of a lawyer by a non-lawyer, use of fictitious names for lawyers or a nickname or motto that states or implies the ability to obtain results are also not allowed.
Most, if not all, of the above the restrictions are also placed on television, radio and Web-based communications. But there are some additional restrictions for those media.
Television and radio ads cannot have any feature, including background noise, that is false, misleading or deceptive. Lawyers who are not members of an advertising law firm cannot speak on its behalf. No spokesperson can be used whose voice or image would be easily recognizable in the community where the ad airs. The spokesperson provision goes one step further. While TV and radio ads may contain a non-lawyer speaking on behalf of the lawyer or law firm if the spokesman is not recognizable to the public in the community where the advertisement appears, the provision says the spokesman "shall" verbally disclose that he is a spokesman and not a lawyer.
Attorneys would be required to file copies of all advertising and solicitation with the professional conduct committee of the Louisiana State Bar Association, to be reviewed for approval within 30 days.
There is an uneasy feeling outside the circle of plaintiff attorneys, with larger corporate firms looking to feel the pinch from the new regulations.
But large firms find themselves in gray areas like sponsorships, which aren't immediately identifiable as advertising or an exempt communication. A number of firms use some of the images set to be banned as part of their Web site imagery and brand identification. Many see two scenarios stemming from the new proposals. The first would be a significant halt to the amount of advertising done by firms. The second would be the legality of the restrictions being challenged in court.
Already, the second option is an issue here. Local attorneys say members of the committee are closely watching a dispute between the FTC and legal advertising regulators in New York and Florida ' the two states Louisiana's regulations are modeled after.
"I believe that some attorneys will ignore rules that appear to be overreaching, while those of us who adhere to the rules ' whether or not we think they will eventually pass a constitutional challenge ' will wait until the courts decide that they are overreaching to resume that advertising," Broussard says. "If they're not enforceable, they will be ignored by the Rambo lawyers," he continues. "We need rules, but only rules that are constitutional in scope."
Should the rules go into effect, Louisiana's ad reviewers will likely be inundated with submissions. "There will be a fee for submitting an ad, but they do anticipate having to hire additional staff," Neuner notes.
The restriction of advertising past results also stands to be a problem for large law firms since it is not uncommon to keep news releases of attorney accomplishments on firm Web sites. And under the rules, any content on the site is considered an advertisement. Local attorneys believe reviewers will use a common sense approach to such material.
Fairness will be a key component of the review process, says Neuner. "If you make a rule, you have to apply it evenly to the plaintiff and defense attorneys."
Broussard believes some ironing out of the amendments is still in order. "Lawyer advertising that provides truthful, accurate facts is useful to the consumer when choosing a lawyer," he notes. "One of the battlegrounds is to what extent can you regulate truthful statements?"
A version of this story first appeared in Baton Rouge's Business Report.