Rule Against Advertising Past Results is Past

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.