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Mar 13 2010

Unrestricted Lawyer Advertising? Oh My!

The Second Circuit, which is the Federal appeals court that covers New York, issued a decision on Thursday that removed almost all restrictions on lawyer advertising. In Alexander v. Cahill, the court was faced with an incredibly tacky ad: the upstate firm Alexander & Catalano used a graphic depicting the two principals of the firm as giants running over to a client’s house as they towered over the city beneath.  I know, you are thinking, so what right? I mean look at all the silly nonsense the hucksters and snake oil salesman do to promote their goods and services. But the difference is that lawyer advertising is regulated by the various courts  or bar associations that oversee lawyer conduct in general. And in NY there are these restrictions:

An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case . . .
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.

(So I guess they ran afoul of number 5, because in law size does not matter).  The court held that these restrictions place an undue burden on lawyers’ First Amendment rights and that pretty much anything in an ad is fine as long as it is not false or misleading.  I guess this is generally the rule of thumb for all ads.

I think lawyers should be treated the same as all others, but I have to admit to having mixed feelings about the decision.  The case essentially leaves it up to lawyers to see how “low they can go.” It will not belong now till law firms start using crazy nicknames and gimmicks further denigrating the profession. In Nassau County, lawyers are allowed to buy the court calendar form arraignments for $35.  They then send “informational flyers” to those charged with crimes which are advertisements in disguise, since it was previously forbidden to directly solicit people for legal services.  This decision seems to eviscerate that restriction as well. So now defendants will be receiving dozens and dozens of pure ads at their homes.  Its unseemly.

Don’t get me wrong, I have no problem with lawyers who advertise. After all, my firm’s success was built in large part by my partners’ foresight in being the first lawyers to put ads in the Yellow Pages (remember the Yellow Pages?).  But the restrictions in place always made sure that he ads had a modicum of professionalism.  You couldn’t day yo were “experts”  of “specialists” in a certain area of law. You had to use only your names and your pictures not a brand name or a graphic depiction of a fake law firm. Now I expect to shortly see ads for the “Million Dollar Lawyers Club” or “The Heavy Hitters” with actors posing as the lawyers. You can exaggerate claims as long as there is a little bit of truth in it.  You no longer need the previously required disclaimer: “Past performance not a guarantee of future success.” Clients won’t know who they are dealing with as lawyers can now use a trade name or moniker.

As we speak, law firms are calling ad agencies to create new unrestricted ads that will push the envelope.  There are simply too many lawyers in an ever-shrinking business climate. As dog-eat-dog as the legal profession was, this new ruling will undoubtedly triple the competitive nature of the practice.  I wish I could count on the Bar to exercise some restraint for the sake of the profession, but I know that is a pipe dream.

I believe the court could have rather structured an intermediate step.  It should have recognized that law is not a business like any other, it is a profession (and by the way, this must mean that doctor advertising can no longer be restricted either).  The First Amendment is often restricted when other public policy comes into play so why not here? Allow more freedom in the language lawyers can use to express their expertise and experience but don’t allow lawyers to hide behind cute gimmicky names and images of fake lawyers.  With law, the lawyer is the product and prospective clients should be able to know right away who they are dealing with.  Anyway, I’m off to form KickassLawFirm.com

2 comments

  1. Nick

    I for one am sick of all of the rules placed upon lawyers. You can argue lawyers are denigrating the profession but the bar advertising rules are denigrating the intelligence of potential clients, as if they can’t discern a rotten lawyer just as they discern a rotten apple at the grocery store. Of course NY is a patriarchal state, so they simply must now best. Thankfully they are their for all of the dumb, helpless people in need of legal services. Moreover, Cahill v. Alexander does not allow misleading ads and specifically mentions ads such as ones including references to money (such as your example “million dollar lawyers”) as ads that would be misleading. Attorneys are by nature control freaks who feel they know best and the worst of these are drawn to work at the New York State Bar regulating attorney conduct. Most have no practical real world experience and live in a bubble. The question begs to be asked why don’t they just adopt the ABA rules of Professional Conduct? Are NYS’s rules really any better? Moreover, the Bar is funded by attorneys. Why are they wasting our bar dues on this out of touch regulation only to have it overturned by USCOTUS? Instead they should focus on admitting less attorneys, this will increase the respectability of the profession almost instantly. NY admits 12,000 attorneys a year, each with a lot of debt and into a shrinking job market. I don’t care who you are a high debt with limited employment opportunities will compromise anyone’s ethics! 12k is by far the most admitted in any US jurisdiction. 2nd is the much larger California w/ about half the admitted attorneys at 6k/yr. 3rd the again larger TX which admits only 4,000. Why is NY continuing to admit so many attorneys into a shrinking market? Instead of addressing this issue NY wastes its time and money trying to make their rules “better” than the ABA. Of course in so doing they trounce upon the Constitution and just wasted every attorneys time and money in having their unethical and unconstitutional rules (irony?) overturned by the USCOTUS.

  2. Oscar Michelen

    Nick – We agree 100% on one thing allowing 12,000 new lawyers per year is insupportable. The reason that this statistic will be hard to change is that there are too many law schools in the NY State area and it is unlikely that any of them will be shut down any time soon. The ABA should take a hard look at how schools get accredited and how many there are in a certain region and recommend not accrediting any more law schools. It may not hurt to make the bar a little tougher to pass to reduce the number of admissions that way as well. Once some of these steps are taken, maybe college kids with nowhere else to turn will stop using law school as a default decision. I also agree that with the glut of lawyers, hardcore advertising is inevitable.

    But I do not agree that lawyers are fungible products like grapes or corn and should be treated that way.

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