New York isn't the only state with changing rules about what lawyers can and cannot do to advertise and market their services. The new New York rules that went into effect earlier this year have already been the subject of a challenge in court, and some of the provisions have been struck down (see my post about the changes here).
Nevada has new rules that went into effect on September 1, as a result of a court challenge to previous restrictions. The new rules in Nevada place limitations only on advertisements that are misleading or create unrealistic expectations about the outcome of a case. They also require that advertisements that promote specific fee arrangements disclose the entire fee arrangement.
Previously, Nevada had banned testimonials, endorsements, and mention of jury verdicts, but these restrictions were held by the state's Supreme Court to be overly restrictive.
The new rules in Nevada do require attorneys to submit advertisements for review. Lawyers may obtain an advisory opinion about their ads by submitting them before they are run - for a fee. Currently, no review board exists, and the state is seeking volunteers to review lawyer advertisements.
While many states that restrict lawyer advertising exempt advertisements directed at other lawyers from the rules, Florida has recently gone in the opposite direction. The Florida Board of Governors recently determined that lawyer-to-lawyer advertising in Florida must comply with the same rules as other lawyer advertisements. This would include submitting any advertisement that contains more than basic information to the Bar for review.
The Florida Bar has, however, decided to put a hold on enforcement of lawyer to lawyer advertising while it seeks a clarification from the state's Supreme Court. When the Florida rules were approved by the Court, the Court approved the exempting communications to family members from the rules, but did not approve the exemption on lawyer to lawyer advertising, which had been part of the rules since 1991. There was some indication that the Court was seeking further information on the issue.
The moratorium also applies to advertisements to current and former clients, which was part of a comment to the original rules that was also stricken by the Supreme Court. If the exemptions don't hold, Florida lawyers will be prohibited from using client endorsements, characterizing the quality of their services, or referring to past results in their advertisements and brochures, including those sent to current and former clients and other lawyers.
While there are (unfortunately) plenty of lawyer advertisements that aren't in good taste, or aren't particularly effective, or that reflect poorly on lawyers, I don't think the restrictions being placed on lawyer advertisements are doing clients any good.
Restrictions on false or misleading information, or on advertisements that 'guarantee' a particular outcome aside, the remainder of the restrictions being placed on lawyers with respect to how they attract clients miss the mark. Lawyers should be able to characterize the quality of their services, refer to past successes and use client endorsements. The more information a potential client has about the lawyer or firm, the better.
What is so different about being a lawyer that the profession thinks that lawyers shouldn't be able to demonstrate the differences they've made in the lives and businesses of their clients? How are clients supposed to make an educated choice about legal representation if the lawyer can't provide information beyond their practice areas, law school and years in business? Good lawyers know that pedigree information isn't the best measure of a lawyer's skill and expertise OR the level of service that a client can expect to receive.
While I'm all for improving the public's impression of lawyers, I also think that consumers of legal services should be able to decide for themselves what is in poor taste, or what kind of lawyer they want to hire, the same way they make those decisions about other goods and services they purchase. Some lawyers will always be in poor taste. But restricting all lawyers because of the poor advertising choices of a few and preventing consumers of legal services from obtaining as much information from an attorney as possible about the lawyer's services and clients is not going to change that.
Comments