(This article appeared in Journal 10,4, December 2005)
Lawyer advertising has constitutional protection and is permitted under the Rules of Professional Conduct if “truthful and not misleading”—so how do you know what is within the legal and ethical lines and what is not? This article is the first in a series that will provide practical advice on permissible lawyer advertising.
Where is the line?
Not so very long ago (about 27 years), lawyer advertising and “self laudation” were prohibited by every bar in the country. Canon 27 of the 1908 Canons of Professional Ethics provided that “solicitation of business by circulars or advertisements, or by personal communications or interviews, not warranted by personal relation, is unprofessional” and all forms of self-promotion “offend the traditions and lower the tone of our profession and are reprehensible.” No doubt there are many lawyers who still agree with these sentiments, but, for better or ill, the United States Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 447 (1978), recognized that the First Amendment extends to lawyer advertising and that a state may not constitutionally prohibit a lawyer’s newspaper advertisement for fees for routine legal services. A state may, however, prohibit commercial expression that is “false, deceptive, or misleading” and it may impose reasonable restrictions as to “time, place, and manner.” Unfortunately for regulatory agencies such as your State Bar—and for lawyers—the court provided little guidance as to what is false or misleading in lawyer advertising and what restrictions are reasonable.
The Supreme Court fleshed out the commercial speech doctrine in a non-legal context in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). The Court held that inherently misleading commercial speech or commercial speech that has been proven to be misleading may be absolutely prohibited but other restrictions are appropriate only where they serve a substantial state interest, directly advance that interest, and are no more restrictive than reasonably necessary to serve that interest. The court provided a little more guidance, perhaps, but no specific directions for determining whether, for example, an advertisement lauding a lawyer’s million dollar jury verdict is misleading even if true and, if misleading, the extent to which such an advertisement may be restricted. Is a disclaimer (“each client’s case is unique; no specific results implied or guaranteed…”) the least restrictive means of protecting the public or is an outright prohibition allowed? What if the average consumer wants to know the verdict record of the lawyers she is considering hiring?
The North Carolina Rules of Professional Conduct do not include a laundry list of the kinds of information that might be ethically included in an advertisement nor do they list specific statements, information, or forms of advertising that are prohibited. Instead, Rule 7.1 incorporates the Bates and Central Hudson fundamental requirement for all permissible commercial speech: the rule simply prohibits a lawyer from making a false or misleading communication about the lawyer or the lawyer’s services. The rule adds that false and misleading communications include all of the following: a material misrepresentation of fact or law, an omission of a fact necessary to make a statement not misleading, statements that are likely to create unjustified expectations about results that a lawyer can achieve, and a comparison of the lawyer’s services with other lawyer’s services that cannot be factually substantiated. Comment [2] to Rule 7.1 does clarify that an objective standard should be used to evaluate whether a statement is misleading. The comment notes that a statement in an advertisement is misleading when “there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factualfoundation.” [Emphasis added]
Staying Well Within the Lines
In the absence of specific guidelines and prohibitions, what is a lawyer who wants to advertise allowed to do without violating the Rules of Professional Conduct? Clearly, the old “tombstone” ad, with the names of the firm’s lawyers, a firm address and phone number, a list of legal services offered by the firm, and the charges for those services, is permissible because it contains purely factual information that is neither false nor misleading. (Interestingly, the ad that sent lawyer Bates before the Arizona Bar authorities was not much more than this, although it did claim that his legal services were offered “at very reasonable fees.”) To the extent that an advertisement goes beyond bare bones facts about the firm, however, there is the potential, intended or not, to mislead. Nevertheless, the standard is an objective one, and the Rules of Professional Conduct are themselves rules of reason. Minor puffery (“we care”), soft endorsements (“they treated me with respect”), and implied attributes (“we’re bulldogs”) are generally considered non-material, unlikely to mislead a reasonable person, and within the ethical line. Beyond the boring but safe simple tombstone ad, the line between what is permitted and what is not becomes fuzzier, particularly with regard to dramatizations in radio and television commercials. Advertising that crosses the line into the realm of misrepresentation, unjustified expectations, and unsubstantiated comparisons will be examined in the next article in this series.