Lawyers in Florida can now advertise past results in their advertising. Florida ethics rules prohibited using past results in lawyer advertising for indoor and outdoor displays, television, and radio. However, a federal court held that the state ethics rules were unconstitutional and in violation of the First Amendment.

The rules weren’t just thrown out in an embarrassing and devastating blow to the Florida Bar. Larry Bodine wrote they were blasted out. This is a warning to every other state attempting to regulate lawyer advertising with many rules which often seem unconstitutional.

What’s the problem states have with lawyers advertising past results? They’re afraid that people won’t have the intellectual sophistication to realize that their situation may not be the same.

The real problem is that a particular result in a case may or may not have anything to do with the lawyer’s knowledge or ability. However, it can be somewhat useful as one small piece of information to consider among much more when choosing a lawyer.

I frequently see hospitals and doctors advertising with statements on TV that lawyers are prohibited from advertising. If hospitals and doctors can do it, why can’t attorneys? I have said for years that many of the ethics rules prohibiting lawyers from advertising freedom would be struck down little by little.

States are often afraid to enforce ethics rules against lawyers, for fear of losing until their backs are against the wall and they have nothing to lose. When that happens, the result is usually in favor of the lawyers. This ruling is just one more loud victory for lawyers and commercial free speech.

When many ethics rules go unenforced, they lose all significance, and eventually, lawyers ignore them. I have often said and written that the state bars or grievance committees should simply stick to enforcing the FTC rules, Strict new lawyer advertising ethics rules proposed in New York. Will you have to redesign your ads? and Basic Ethics For Lawyer Advertising.

Nancy Myrland points out another seemingly simple but confusing and ultimately futile ethics rule that Florida and other state bars require, that lawyer advertising shows the lawyer’s name and office address.

An interesting ethics rule that I believe is soon to go away is the claim in advertising that a lawyer is an expert or specialist, especially, the term specialist.

Heather Morse wrote in her Legal Water Cooler blog, a legal marketing blog, “But the rules for lawyers, via the state bar associations, often times go way beyond those constitutionally acceptable prohibitions. One of my favorite rules is where a bar association bans (explicitly or implied) the word “expert” or “specialist” when an attorney is describing him or herself…”

The Miriam Webster dictionary says to  specialize is to “concentrate one’s efforts in a special activity, field, or practice.” Miriam Webster even gives an example as “an attorney who specializes in estate planning.”

My partners and I practice exclusively in personal injury law. I signed a statement with our legal malpractice insurance company stating that 100% of our practice is a personal injury law practice and a quick look at our New York personal injury website shows that we don’t do anything other than personal injury. That means we specialize in personal injury and that I am a specialist in personal injury.

A more difficult term is the word, expert. The Miriam Webster dictionary says expert means, “having, involving, or displaying special skill or knowledge derived from training or experience.”

I have many years of specialized experience with motorcycle accidents which many personal injury lawyers don’t even want to know about. I have received calls from many personal injury lawyers asking me questions about a motorcycle accident they were working on. One of those lawyers advertises on TV for motorcycle accidents.

The easiest way to see if a lawyer specializes is to look at the lawyer’s work. Our New York motorcycle accident website shows over 100 articles I wrote about motorcycle accidents. I am an expert on motorcycle accidents.

The city of San Francisco doesn’t want children to get a toy with their meal at a fast food restaurant if they want french fries. However the city would allow them to get a toy if they eat something healthy (within their nutritional guidelines).

This could be just the right thing to save children from a lifetime of diabetes and heart disease, at least in theory. Or this could yet another example of regulators with a lack of marketing knowledge. It just might take the marketing people at McDonald’s, Burger King and other fast food chains at least 15 minutes here or there to come up with marketing ideas to get around the problem.

There are likely to be many problems with this law and even more ways around it. This is sounding a lot like many ethics rules for lawyer advertising.

San Francisco might think they can curtail calories consumed by preteens because their parents don’t want to cook at home, but what will San Francisco do for hungry teenagers?

According to the Substance Abuse and Mental Health Services Administration (SAMHSA), approximately 20% of children age 12-17 have used marijuana. With the city of San Francisco probably having more medical marijuana providers then anywhere else, I expect that there will be a lot of very hungry teenagers, raiding their parents medical stash, who don’t care about getting a toy.

Today, a friend who is a collection lawyer in New Jersey, told me a story about a woman who he represented for free. The woman was previously represented by a New York lawyer in the Bronx who stole her entire $25,000 settlement. The client, on her own, obtained a default judgment against the lawyer but was unable to collect any money. My friend successfully obtained reimbursment for her from the New York State attorney-client fund.

My friend said that he found out that the lawyer in the Bronx had been disbarred because he stole money from many other clients, but was never prosecuted. He said it’s like Lays potato chips, once you have one, you can’t have just one. He said that New Jersey prosecutes lawyers when they steal money from clients, but that New York does not.

Since around 1961, “betcha can’t eat just one” has become one of the most well known slogans. Sometimes remembered a little differently and often used to describe something else, people always remember the Lays name! Similarly, a few bad lawyers who are simply disbarred and not criminally prosecuted and sentenced to jail in the hope they are forgotten, will leave a bad impression on the whole profession. Prosecuting lawyers and the publicity surrounding the prosecutions will show lawyers and the public that stealing will not be tolerated and that we will not be treated differently than anyone else. Bad publicity can be use in a positive manner, hiding the problems under the rug will only cause everyone to trip on it.

I have had bad times when I couldn’t pay bills, but I never touched one penny of my client’s money. To me, it’s unthinkable, Those that do give me and everyone else a bad name. I have no sympathy for those that do. Anyone only needs to read the Bar Association newspaper to see how many lawyers are disbarred for escrow violations. I’m always amazed.

Instead of “nit picking” lawyer advertising, serious efforts should be spent on going after the most serious problems affecting our profession. Besides “borrowing” escrow money, there are other serious problems such as runners that do not get anywhere near the attention they need.

Strict new lawyer advertising ethics rules are being proposed in New York, I suppose to improve the image of lawyers in the eyes of the public. The rules will become effective November 1, 2006. Will new lawyer advertising ethics rules have any effect on shaping the look of lawyer advertising or improving the image of lawyers? It depends upon the creativity of the lawyer or the advertising agency.

It’s really not that difficult to convey a thought without stating it. It just needs a little creativity. Consider the Verizon Wireless TV commercial for their new Chocolate cellphone by LG. If you watch TV, you must have seen it. Their TV commercial exudes sex more than any TV commercial I have ever seen, yet they do it all with chocolate and music, without any mention or images of any sex in the commercial.

New lawyer advertising rules may inhibit some advertisers, but others with creativity can always get around it to make any statement they want. What will the proposed rules do to improve the image of lawyers? One lawyer advertising in New York has TV commercials which seem to comply with the proposed rules. The lawyer does the commercial himself, so there is no actor portraying a lawyer; there are no dramatizations; and no testimonials, but the lawyer imitates Jerry Carroll in the famous Crazy Eddie TV commercials which played in New York during the 1970s and 1980s. For those of you who have not seen the Crazy Eddie commercials, Jerry Carroll appeared on TV as, well, Crazy Eddie. He was screaming with a maniacal look in his eyes and his arms flailing about. You can see Crazy Eddie TV commercials at www.crazyeddie.com. I don’t think this commercial is what the Office of Court Administration would like to see.

Should the state even attempt to regulate the image of lawyers? From a business standpoint, I like the proposed rules. My TV commercials do not violate the proposed rules and the proposed rules will make it more difficult for my competition. From a personal standpoint, I believe that states should reduce their rules and enforce them. Many of the current rules should be eliminated and it is very rare that any of them are enforced. I see current TV commercials for lawyers that violate existing FTC regulations. Do we really need more rules?

Many of the proposed rules are vague and I believe may be unconstitutional even if not vague. Ironically, some of the proposed rules will affect corporate law firms when they were probably aimed at personal injury lawyers. For instance, one of the proposed rules prohibits use of testimonials from current clients, but permits testimonials from former clients. It is easy for personal injury lawyer to obtain a testimonial from a former client, but should a corporate law firm representing a large corporate client like Verizon Wireless be placed in a position of asking the client to find a new law firm so that they can obtain a testimonial?

1200.6 (o) (1) (ii) requires that the attorney disciplinary committee be provided a listing of all media outlets in which the advertisement will appear, the frequency of its use, and the time period during which the advertisement will be used. This is trade secret information, which no one will want to divulge and which smart competitors will take advantage of. I can’t think of any reason that the Office of Court Administration needs to know this information. If the advertisement is violating a rule on ABC, it will also violate the same rule on FOX. If the advertisement doesn’t violate any rules when broadcast 3 times per day on FOX, will it violate the rule if it’s broadcast 15 times per day or even 1,000 times per day?

Additionally, 1200.6 (o) (4) provides that the advertisements filed pursuant to the subdivision shall be open to public inspection. It does not state whether media placement and frequency will be made public. Even if it is not, this is very sensitive trade secret information and the state will probably be litigating this one in the US Supreme Court.

The proposed rules in New York require a lengthy disclaimer. Disclaimers are a funny thing. No one reads disclaimers. The longer a disclaimer is, the less significant it becomes and ensures that it will not be read. The answer must be to make it bigger, maybe require that it be in the audio track, and maybe even emphasized at a higher volume level.

The weird part about disclaimers is that they can actually be used as a selling point by emphasizing. Emphasizing a disadvantage gives the illusion that it is a benefit. This is something that is done with many TV commercials and print advertising. For instance a TV commercial for a 911 commemorative coin proudly proclaims that it will NEVER be released as an official coin! Mortgage applicants are commonly charged a $300 bank fee and some mortgage brokers waive the fee. So, how do you charge this fee or even more and turn it into a selling point? One well known mortgage company advertises that it has a $350 flat fee, as if this were a bargain.

Under certain circumstances indicated in proposed rule 1200-6 (e) the following disclaimer must be both spoken and written in TV and radio commercials: “Prior results cannot and do not guarantee or predict a similar outcome with respect to any future matter, including yours, in which a lawyer or law firm may be retained.” Can anyone make this disclaimer longer or more confusing? Does anyone really believe that the public will understand this disclaimer? The reality is that this disclaimer will have the opposite effect of its intention. No one will pay any attention to this disclaimer, no matter how large or how loud it is.

Proposed rule 1200-6 (g) requires that television and radio advertisements shall be preceded or followed by a spoken statement that the advertisement is “an advertisement for legal services”. Just to make sure that nobody misses the announcement it must also appear in writing in TV commercials.

When I produced my TV commercials, I appeared on the commercials because I found that even people who are illiterate can tell the difference between a lawyer and an actor on a TV commercial. I never thought of asking anyone if they ever thought that any lawyer TV commercials were a public service announcement. I wonder, has anyone ever thought a lawyer commercial wasn’t an advertisement? Please send me the name of anyone! Because infomercials are easily and frequently made to look like they are not advertising, I would go along with this disclaimer for infomercials or any advertisement longer than 60 seconds.

Speaking of public service announcements, 1200.6 (a) states “the content of advertising and solicitation shall be predominately informational, and shall be designed to increase public awareness of situations in which the need for legal services might arise and shall be presented in a manner that provides information relevant to the selection of an appropriate lawyer or law firm to provide such services.” This sounds like a public service announcement to me. I wonder why it has to say “advertisement for legal services”. Of course, it doesn’t really matter because people already know it’s an advertisement and the more disclaimers there are, the less effective they become.

Lets look at this another way. The advertising shall be predominately informational; designed to increase public awareness of the need for legal services; and presented in a manner that provides information relevant to the selection of an appropriate lawyer. Sounds like every lawyer advertisement I’ve seen. I know one when I see it!

Strict advertising regulations can end up having an undesired effect. Advertising is like a river, you can’t stop it, but you can divert it. New advertising regulations will not stop advertising, new regulations will only steer it in a new direction. The biggest question for the regulators is in what direction will they steer it? It is impossible for regulators to foresee the direction, because the direction is dictated by the creativity of many advertisers.

It has been reported that Cellino & Barnes, a law firm in western New York, has approximately 150 billboards advertising their law firm. Of course, the law firm name of Cellino & Barnes is prominently displayed on the billboards. Recently, one of its principal attorneys Ross M. Cellino was suspended for six months from the practice of law.

The Appellate Division, 4th Department said that an attorney who is suspended cannot hold himself out as a lawyer. Consequently, the law firm changed its name to The Barnes Firm and and will now have to change every one of its billboards. At a cost of approximately $1,000 in printing and installation costs to change a large billboard, this will cost the law firm just a few dollars to change approximately 150 billboards.

In addition to the billboards, the law firm also has to change all of their TV commercials, radio commercials, and other advertising. Additionally, since the law firm has spent a considerable amount of money branding its name, considerable damage will be done to the law firm brand by changing the name.

One interesting question is the law firm’s yellow page advertising. Obviously, the yellow page books have already been printed and distributed. They cannot be recalled. Will the 4th Department have to let the law firm slide on this one or should the firm be required to put a message on the phone number advertised saying that the firm is no longer in business? When advertising in all of the yellow page books is renewed, the new advertising will have to show the name of the law firm as The Barnes Firm. When Mr. Cellino’s suspension is up after six months he will have to wait for his name to reappear in the yellow page books.

If Cellino & Barnes advertised a vanity phone number instead of their names, they wouldn’t have needed to change any of their advertising. Additionally, a vanity phone number is a lot easier and less expensive to brand than their name.

The moral of this story is that when advertising, always be on your best behavior and make sure that everyone in the firm is and invest in a vanity phone number.