New lawyer ad rules spark debate over public image, public good.

Early this year, the presiding justices of New York's appellate courts released new rules governing how, when, and where lawyers could advertise their services. These rules, part of a revision of the state's Code of Professional Responsibility, impose tight restrictions on lawyer ads and will probably affect legal Web sites and blogs as well.

A few other states are cracking down, too. And like almost everything else about lawyer advertising, the changes are predictably controversial and have prompted at least one legal challenge.

Among the changes in New York, which took effect on February 1:

* Lawyers cannot use nicknames or slogans that imply they will get results or win large awards for their clients.

* They cannot use "attention-grabbing" images or slogans.

* They must wait 30 days before contacting potential clients after an accident or injury.

* They cannot show pictures of themselves in courtrooms.

* They cannot use actors.

* They cannot employ people known informally as "runners" who know about potential legal clients (because they work, say, at a hospital or with a union) and alert lawyers to potential cases for a fee.

Proponents of the rule changes say they will curb unscrupulous and misleading ads, but opponents say they unfairly target certain lawyers--personal injury lawyers in particular--and have unacceptable free speech implications.

On February 1, the Washington, D.C.-based group Public Citizen filed a lawsuit challenging the rules on behalf of James Alexander and his law firm, Alexander & Catalano, which has offices in Syracuse and Rochester. The firm was known for humorous and hard-hitting ads in which the lawyers called themselves the "Heavy Hitters," a slogan that could well be improper under the new rules. (According to Greg Beck, a lawyer with Public Citizen, one of the justices called it "problematic.") The lawsuit requests an immediate preliminary injunction barring enforcement of the rules, based on First Amendment violations.

Beck said the New York rule changes go too far and are unnecessary to protect consumers.

"There are already rules against false and misleading advertising," he said. "And the in-person solicitation of accident victims is barred by many states because of the fear of undue influence. These [changes] go far beyond all that, which is why even the Federal Trade Commission came out against the original draft rules. It said these restrictions only hurt consumers."

Beck said the rules unfairly target plaintiff lawyers because they have minimal impact on defense attorneys and are too vague about what kinds of information lawyers can give injured people.

AAJ, expressing similar concerns, asked the Center for Constitutional Litigation (CCL), also based in Washington, to submit comments on the rules during the public comment period last fall. The comments--submitted in a September 2006 letter signed by AAJ president Mike Eidson to New York's Office of Court Administration--highlighted the most "constitutionally infirm" of the restrictions and asked the justices to strike or modify them.

Among these is [section] 1200.6 (d) (5), which prohibits depictions of courtrooms. "There is nothing misleading about a lawyer who makes appearances in court from implying as much in an advertisement," Eidson wrote.

And the restrictions on contacting injury victims as potential clients "might be read to prohibit plaintiff attorneys from contacting injured individuals but to permit defense attorneys to do so," he wrote. They "give defendants and insurers an opportunity to obtain a settlement without the injured party understanding the rights or scope of damages at stake because that party may not yet have sought representation."

The comments seemed to influence New York. "After we submitted our comments, New York decided to revise the 30-day restrictions in precisely the way requested," said Jesse Merriam, a CCL lawyer.

The revisions apply to all counsel equally, prohibiting both plaintiff lawyers and defense and insurance lawyers from contacting injured people within 30 days of an accident.

The New York State Trial Lawyers Association (NYSTLA) vigorously opposed the rule changes, citing the 30-day provision and other concerns. The group held a symposium in August to gather information about the effects of the rule changes. In a letter to the state's Office of Court Administration, NYSTLA President Joseph Awad and Executive Director Daniel Feldman said that while "we welcome all efforts to enhance the dignity and integrity of the profession," some of the proposed revisions were unfair to plaintiff lawyers and consumers.

"We wish that it were possible to impose higher standards of taste and dignity by rule, but such efforts inevitably produce subjective if not discriminatory enforcement," they wrote. "We believe, however, that useful rules could succeed in curbing advertising that combines elements of deception with offensive content."

Among the new rules' most enthusiastic supporters is the New York State Academy of Trial Lawyers (NYSATL), a group founded in 2004 for the express purpose of distancing itself from what its members consider unseemly lawyer advertising practices. The academy filed an amicus brief on behalf of the presiding justices in the Public Citizen lawsuit.

"We are not against advertising," said NYSATL President Robert Lahm. "We are against misleading and unethical advertisements. We are very concerned about 'runners' and 'chasers,' the kind of horrible behavior that goes back to the bad old days of enormous rings of corruption involving lawyers. This behavior is unfair to every lawyer."

Indignant over dignity

In fact, the academy would welcome even tougher measures. It has asked the judges to consider permanent disbarment and criminal sanctions for lawyers who use runners, solicit clients by telephone or e-mail, or offer to represent someone who already has representation. Lahm said such changes would be an important step in restoring "dignity and honor to our profession."

That phrase sets off alarm bells for many proponents of unrestricted advertising, who say that talk of "dignity" is code for class snobbery. They say too many lawyers with comfortable high-end practices fail to appreciate that the ads they consider tawdry are the best--perhaps the only--way for attorneys to reach an underserved market of lower-and middle-income clients who otherwise would not learn what their legal rights are or how to find a lawyer.

"There is a large segment of the population that depends on television advertising for information," said Ed Malley, president of Lawyers Group, a Stamford, Connecticut-based company that produces lawyer ads. For this population, he said, more restrained or lofty forms of advertising might actually be a turnoff, and the key point is to get the message out as clearly as possible.

"What people want to hear is: 'You have rights, you can speak to a lawyer, and it's free.' Advertising opens up the courthouse doors. It is the great equalizer in our society," Malley said.

Proponents of the restrictions, on the other hand, contend that lawyer advertisements that emphasize large damages awards and super-aggressive lawyers are part of the reason the public has a low opinion of lawyers in general--and trial lawyers in particular.

Still, opponents say, dignity, like beauty, rests largely in the eye of the beholder, not the eye of the law.

"There is no question in my mind that these restrictions are aimed at advertising that [rule proponents] find personally distasteful," said Beck of Public Citizen.

"It is exactly correct that this is a class issue," said Herbert Friedman, a Lincoln, Nebraska, lawyer who is chair of AAJ's Marketing and Client Services Committee. "That's why it's especially awful. Look, corporate lawyers have no problem hustling clients. They meet them at the country club, or on some museum board somewhere. But some poor schmuck with a storefront office in a poor part of town--we're not going to let him look for clients the best way he can? Come on."

Still, Friedman said he's pleased with recent developments at AAJ and that the marketing committee has become a "standing" rather than "presidential" committee, which Friedman called "a giant step forward."

Bates and beyond

Friedman said the trial bar's mixed attitudes about advertising go back at least a century. In the 1800s, many American lawyers advertised Abraham Lincoln most Famously--but in 1908, the American Bar Association (ABA) adopted a prohibition on all lawyer advertising, citing concern over "the ambulance chaser, the member of the bar with a system of runners" and other "nefarious methods."

The prohibition lasted until 1977, when the U.S. Supreme Court ruled in the landmark Bates v. State Bar of Arizona that lawyer advertising was constitutionally protected and served an important public-interest function.

The plaintiffs in Bates were John Bates and Van O'Steen, two lawyers who established a legal clinic in Phoenix to serve clients who could not afford lawyers but were not poor enough to qualify for state-funded legal aid. They realized that the only way to reach the number of clients necessary to keep their low-fee firm solvent was to use mass advertising--and the Court agreed that they had the right to do so.

Justice Harry Blackmun, writing for the Court, found that "the assertion that advertising will diminish the attorney's reputation in the community, is open to question. Bankers and engineers advertise, and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. The absence of advertising may be seen to reflect the profession's failure to reach out and serve the community." (433 U.S. 350 (1977).)

Since that historic ruling, the debate over lawyer advertising--its necessity, its function, and its content--has split bar associations and other lawyers' groups. The ABA Rules of Professional Conduct urge lawyers to use dignified advertising, reflecting concern for its effect on the public's perception of lawyers. And some trial lawyers see the need for more restrained advertising as part of the trial bar's ongoing quest to remake its public image.

David Perry of Corpus Christi, Texas, who is chair of the Lawyer Advertising subcommittee of Friedman's committee, stressed, "We don't want to demonize those who advertise. It can be very useful to do so. Quality is the concern. As an organization, we want to do advertising that makes the profession look good and makes [the advertising lawyers] look good, and at the same time is effective. All of our polling shows that the public doesn't like a lot of lawyer advertising."

Research conducted on behalf of AAJ shows that while advertising is effective in generating business for the advertiser, it also perpetuates some negative stereotypes about plaintiff lawyers.

"A huge segment of the public reports that they've obtained most of their impressions about plaintiff attorneys through our own advertising, and almost all report having an unfavorable view of our profession," said Jim Jordan, a consultant who has worked with AAJ on this issue. "We're confident that advertising can be conceived and produced--and AAJ is currently in the midst of additional research to sharpen our understanding of the topic--that can both attract clients and improve the image of the trial bar."

Perry said lawyers need to preempt moves by less-well-meaning opponents to regulate lawyers' activities.

"States keep amending regulations," he said. "There is certainly a large element of the bar itself involved, and some of that effort is well intentioned. But there are also folks involved who simply don't like trial lawyers. We need to move affirmatively, to reduce the need or impetus for people to try to regulate this."

Friedman said personal injury lawyers missed the boat on the advertising issue. "My position all along has been, the plaintiff bar did this to themselves," he said. "The day after Bates, major lawyers should have been on the air advertising and making themselves heard. They lost that opportunity. In fact, they fought against that opportunity--fought like hell. Because 'it's not dignified,' they said."

The idea that tacky advertisements foster the public's bad opinion of lawyers, especially personal injury lawyers, is widespread. But is it true?

Several studies published in the 1990s cast doubt on that assertion. In the Arizona State Law Journal in 1995, ABA staff counsel Will Hornsby wrote, "Personal injury lawyers who do not advertise believe that lawyers who do advertise taint the jury pool, resulting in lower awards. No research supports this belief."

In 1996, the ABA published Lawyer Advertising at the Crossroads. The book was the result of a three-year study of lawyer advertising that concluded that advertising served important public-interest functions and did not tarnish the image of lawyers.

And a 1998 analysis of Gallup polls and other data by Richard Cebula, economics professor at the Georgia Institute of Technology, published in the Journal of Legal Studies, concluded, "Regarding the cause of the declining image of lawyers, the advertising of legal services is not the problem." In fact, his research suggested that the opposite might be true.

"There is no evidence that lawyer advertising is the cause of public distrust of attorneys," said Beck. "If the state argues that, it should document it. And even if it does, it is still not legitimate to restrict it. That is a question of the marketplace. If consumers are turned off, they won't contact those lawyers. If lawyers don't like undignified advertising, they are free to use more dignified advertising."

Following suit

All these questions will continue to bedevil lawyers, as other states follow New York's lead. The Florida Supreme Court has adopted rule changes that would require lawyers to submit all advertisements for prior review by the state bar association. The rules also specify which images are appropriate for lawyers to use in their ads (such as the American flag, American eagle, and law books) and which are not (specifically, "sharks, wolves, crocodiles, and piranhas").

In Louisiana, state Sen. Rob Marionneaux, who is a lawyer, introduced a bill that would, among other restrictions, ban the use of testimonials, reenactments, or courtroom depictions. The bill also would require lawyers to submit their ads to the state bar, which would have 30 days to review them. Marionneaux told a reporter for the Greater Baton Rouge Business Report that if he had his way, lawyers would be limited to running ads that contained nothing more than their name and phone number.

Attempts to inject advertising restrictions into the online world will open up a brand-new can of worms, with some observers predicting that it will lead to a reexamination of the commercial speech doctrine, since blogs and law firm Web sites are not easily defined as either commercial or noncommercial speech. Most have a combination of materials that discuss legal issues and market the lawyer's services.

"Any blog by a practicing lawyer promotes the lawyer's skill and knowledge," said Larry Ribstein, a law professor at the University of Illinois College of Law who hosts the Ideoblog blog. "At the same time, even a blatantly self-promoting blog might discuss important ideas and important public policy issues that are constitutionally protected."

Distinguishing blogs from advertising may be difficult, and the distinction is important because commercial speech is more tightly regulated than noncommercial speech. Ribstein said untangling this knot could force courts to confront the whole question of whether commercial speech deserves the same constitutional protections that noncommercial speech does.

"That could be one positive outcome of this," said Ribstein. "Regulators may not consider it a plus, but any clarification of the law is welcome."

In the meantime, advertising is not going anywhere, and the questions it raises about free speech, lawyers' image, and the public good will continue to stir up debate both inside and outside the profession. And the question of how to reach a significant number of people who need legal information will be at the heart of that debate.

"You cannot stop the flow of phone calls from people looking for legal advice," said Malley. "People have a need that is not going away."