The news over the past few weeks, both online and off, has been full of stories about lawyer advertising. Perhaps the most prominent was the Wall Street Journal article entitled, Objection! Funny legal ads draw censure and the accompanying Wall Street Journal Law Blog post, Provocative Lawyer Advertising: Fair or Foul?
New York and Florida are among the most restrictive states when it comes to rules about lawyer advertising. Both have cases pending which challenge the constitutionality of the restrictions. Round one has been won by lawyer James Alexander in New York in Alexander v. Cahill, which was discussed in my prior post, Some New York Advertising Rules Held Unconstitutional.
Bar leaders that support the restrictions claim that they're doing so to 'protect the public.' But in the case of Alexander's ads, which were fanciful and in no way could be construed as depicting 'real life' (the ads included Alexander consulting with aliens or as a giant-sized figure stomping around downtown Syracuse, New York), what are we protecting the public from? It's difficult to believe that the bar believes actual clients are going to think the ads were 'real.' Can it be considered 'deceptive' if it's clearly fanciful?
Lawyer and legal marketer Ben Glass comments on the Wall Street Journal article in a post on one of his blogs entitled, Do These Lawyer Ads Really Help You?. Ben says that he thinks, "that lawyer advertising is over-restricted by government regulators. Lawyers should be able to do just about anything they want with their ad dollar, as long as the ad is not deceptive or misleading." He goes on to say that he doesn't think these kinds of ads really help the consumer, because they don't say anything meaningful at all about the lawyers.
While I agree with Ben in part, I believe these ads do convey something about the lawyers. Lawyers that choose to use pit bulls or sharks, or gory accident scenes are conveying something very specific about their philosophy and their approach. Many clients will be just as turned off as the lawyers creating the bar rules seem to be.
But there are clients that will respond to these ads. Those clients are looking for an attorney with a particular approach or mindset. And let's face it - those clients are going to be looking for those types of attorneys whether the attorneys are allowed to use certain images in their advertising or not. Those same lawyers are already conveying that message in the way they approach their cases, adversaries and clients. It's reflected in their overall demeanor, their reputation and their philosophy.
Forcing a lawyer that isn't 'tasteful' in any other aspect of his or her practice to advertise 'tastefully' is the real deception; it doesn't give the client an accurate picture of the lawyer.
The state of Nevada went the other way last September when they changed their rules to be less restrictive, citing First Amendment concerns. They decided that taste just couldn't be legislated under the First Amendment. For more on Nevada's changes, see my prior post, Courts Modify Lawyer Advertising Rules in Nevada and Florida.
If you're looking for ethical, strategic ways to market your law practice, take a look at the upcoming teleclass series, How to Grow Your Law Practice on a Shoestring Budget, starting March 5, 2008. But hurry, because prices go up after tomorrow, February 15.
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