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