Wisconsin Law Blog

Date: 10/26/2008

Lawsuit seeks to block tough La. lawyer ad rules
By MICHAEL KUNZELMAN
Associated Press Writer


NEW ORLEANS (AP) _ Personal injury attorney Morris Bart has spent millions of dollars to make “one call, that’s all” his familiar refrain for television viewers, but new lawyer advertising rules in Louisiana may ruin the return on his investment.

Catchy phrases and mottos like Bart’s have been seen and heard on televisions across the country, prompting some states to silence what have been called deceptive, misleading ads that have eroded the industry’s reputation.

Louisiana is the latest state to take action, preparing to implement some of the nation’s toughest rules on attorney advertising.

But Bart, one of his competitors and a national consumer advocacy group have sued to block the rules from going into effect Dec. 1, claiming the new limits go too far.

“You can regulate speech that is false, deceptive and misleading, but you can’t regulate taste,” he said. “When you put blanket bans on speech, you’re on dangerous ground.”

The rules prevent Louisiana lawyers from promising “results” or referring to “past successes.” They also can’t use nicknames or mottos that imply an ability to get results. A handbook issued by the Louisiana Bar Association cites “the winning law firm,” ”losing is not an option” and “the cash machine legal clinic” as hypothetical examples that would violate the new rules.

A committee will review the ads’ contents, and attorneys who break the rules could suffer professional sanctions.

Bart’s lawsuit claims the rules also impose a broad ban on the use of client testimonials, actors’ endorsements and re-enactments. Ads also won’t be allowed to portray a judge or jury or compare one lawyer’s services to another.

“They’re definitely one of the most restrictive set of rules for advertising in the country,” said attorney Greg Beck of Public Citizen Inc., the nonprofit group that filed similar suits in New York last year and in Florida this year over lawyer advertising rules.

A federal judge in Syracuse, N.Y., ruled in July 2007 that some of that state’s new restrictions were unconstitutional and blocked New York’s attorney disciplinary authorities from enforcing them. The state is appealing that ruling.

Elsewhere, a committee formed by the Missouri Bar Association earlier this year proposed stricter requirements for disclaimers in lawyer ads. A few years ago in South Carolina, lawyers were told they could no longer to call themselves the “heavy hitter” or the “strong arm” after that state passed stricter ad rules.

In contrast, New Mexico lifted a requirement four years ago that all lawyer ads be screened in advance by a bar association committee.

“There really hasn’t been much consistency from state to state,” said Micah Buchdahl, chairman-elect of the American Bar Association’s law practice management section. Buchdahl said efforts to restrict lawyer ads are typically grass roots movements within the profession and not part of a national campaign led by outside interests.

In 1977, the U.S. Supreme Court ruled that lawyer ads are a form of commercial speech entitled to some First Amendment protection, a decision that spawned a proliferation of attorney ads and periodic attempts to rein them in.

The Louisiana Bar Association, which recommended the new rules adopted by the state’s Supreme Court, said the limits are designed to protect consumers and respond to concerns that some ads give the profession a bad reputation.

“We’re not here to arbitrate taste,” said association president Elizabeth Erny Foote. “Our first goal is to protect the public.”

Chief Justice Pascal Calogero Jr., through a court spokesman, wouldn’t comment on the new restrictions. But the court’s 25-page order issuing the rules said they balance “the right of lawyers to truthfully advertise legal services with the need to improve the existing rules in order to protect the public from unethical forms of lawyer advertising.”

One of Bart’s competitors, attorney William Gee III, has run ads featuring actor Robert Vaughn, who starred in the 1960s TV spy series “The Man from U.N.C.L.E.” Gee thinks the new restrictions will prevent him from using the actor as a paid spokesman.

Gee believes the state’s existing rules, which bar “false, misleading or deceptive communications” in advertising, are good enough.

“It’s our position that these rules go far enough in protecting the public,” said Gee, who has been practicing personal-injury and maritime law since 1984.

Bart, whose firm spends more than $5 million annually on ads in seven television markets in Louisiana, Mississippi and Alabama, claims the rules are part of an anti-consumer movement to shield “big business and corporate America” from costly litigation.

“Big business doesn’t like lawyers like me advertising because we represent consumers and working people that bring claims against big business,” he said.

Copyright 2008 The Associated Press.

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