Missouri's New Advertising Rule

I haven't yet read the text, but read a newspaper article saying that Missouri was going to compel lawyers to put "don't hire a lawyer just based on an ad" on all lawyer ads.  That's interesting -- inherent in it, I suppose, is the idea that lawyer advertisements are inherently false or misleading:  what else justifies the compelled speech?

I am not a fan of the garish lawyer ads that I sometimes see, but imho this may take things a bit too far.  What's next?  "Don't believe what you see on TV" will be required?  :-)

Comments

[Anon]

It is a good thing that my firm (and most large firms) doesn't advertise, or need to attract the kind of clients that think that it is acceptable behavior to use the Yellow pages to find services.

[Eric Goldman]

What's next? "Yuo're an idiot if you read this ad."

[Doug Richmond]

It is true that most large law firms don't run Yellow Pages ads, but they advertise a great deal in trade publications, the National Law Journal, etc. Nonetheless, those ads tend to be tasteful. A disturbing trend, however, seems to be this: a firm monitors new lawsuit filings in its jurisdiction. When a lawyer sees a lawsuit that he would like to defend, he sends a copy of the complaint to the defendant, accompanied by a letter, sometimes offering his firm's services, and sometimes simply saying that he thought the defendant's general counsel (or some other executive) would want to be aware of the suit (a not-so-subtle pitch for the business). Often these letters bear some advertising disclaimer in a footnote following the lawyer's signature. Either firms see nothing wrong with this approach (as in the case of the leaders at my former law firm), or they are unaware of such efforts by their lawyers. The principal danger is that a lawyer will make statements in a cover letter accompanying a complaint that are false or misleading, or which create an unjustified expectation about the results the lawyer can achieve. I have a copy of just such a letter sent by the head of a practice group at a large law firm.

[David Giacalone]

Here's a link to the Order of Sept. 19, 2005, containing the new Missouri advertising rules - http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/49c8664ddcac74d78625708200534d23?OpenDocument . (Subtle hint: this weblog would be more useful if you supplied your readers with relevant links)

Apparently, the Missouri Bar Assn and the Missouri Supreme Court think that advertising lawyers are as dull-witted as the public the regulators purport to be protecting. The following appears in a Supplemental Comment: "In the case of television, the disclosure required by Rule 4-7.2(f) may be made orally or in writing. In the case of radio, the disclosure must be made orally."

[David Hricik]

David G - First, thanks for the link. See my post -- I didn't have it. A full pdf will soon be up on legalethics.com. Second, loved the radio comment, but they were thinking ahead and plugged a loophole! :-)

I've been told that this rule is similar to one in effect in Florida, but that Florida is about to repeal its version, which it had adopted ten years ago.

I was also told that the "disclaimer" was pushed by plaintiffs' lawyers who don't advertise; they apparently want to reduce the effectiveness of competitors' ads, and so this is their way to accomplish it. Not sure that is a good reason for adopting something like this.

I am not going to defend the content of lawyer advertising, but many people are not going to get access to counsel, and be able to sue clients represented by those large firms that don't have to advertise, without yellow pages or TV ads.

[David Giacalone]

David H: The most egregious Florida rules were eliminated in May 2004.
See http://blogs.law.harvard.edu/ethicalesq/2004/05/23#a1536 . Right now, the most restrictive rules appear to be in Kentucky (and perhaps Alabama). Go here for current regulations of the KBA Advertising Commission - http://www.kybar.org/documents/advertising/aac_regs_1-12.pdf . Not even the KY rules contain the disclaimer discussed in your post.

Long before I spent 12 years at the FTC's Bureau of Competition, much of which entailed scrutinizing anticompetitive conduct by professionals, I concluded that lawyer advertising bans were more about squelching competition (and upholding "dignity") than about protecting the public. Thus, as I confessed at my website, my lowest grade in law school (B-) was in Professional Ethics (in 1975). That's because the entire grade was based on a term paper, in which I argued that a lawyer should be able to engage in any advertising that is truthful and nondeceptive -- even if annoying as hell. Especially galling to the traditionalist professor was my conclusion that, despite centuries of banned advertising, "The public appears to respect General Mills more than the Attorney General."

It seems to me that a better place to put warnings like "Don't use only ____ to choose a lawyer" would be bar association Lawyer Referral services. All they do is give you the next name on a list -- whichever lawyer said he or she wanted cases in the relevant subject area.

p.s. If I might pull your leg: I didn't have the link to the rule either -- but, I went and found it (took less than two minutes). Real webloggers find relevant links! Casual observers are going to start thinking law professors don't do any research on their own (leaving it up to research assistants).

[David Hricik]

I was on a rule writing committee, and we were motivated, I think, by legitimate concerns of overreaching and deception. But, Texas's rules (where I was) are, it seems, pretty lax and so maybe that explains why turf wars were not on our table. I do think that it's not all about squelching competition -- there is a legitimate need to rope off those who would deceive the public.

Chain pulled. I do tons of research, but I am not perfectly used to blogging, yet...