Congratulations to JD Supra contributor Scott Wolfe of Wolfe Law Group on today’s order granting, in part, a Motion for Summary Judgment in his constitutional challenge to Louisiana’s new lawyer advertising rules.
Of note: the Court held that the Internet is a unique form of communication and it was inappropriate for the LSBA simply to apply the same rules to this medium.
However, today’s decision also included a number of other findings that are bound to be interesting to anyone following the ever-changing landscape of lawyer advertising. Some highlights:
- References or testimonials to past results can be inherently misleading – even if truthful – and thus can be prohibited. The Court based this conclusion on LSBA survey results in which 72% of LSBA members agreed with the statement that "client testimonials imply that the endorsed attorney can obtain a positive result without regard to the facts or law." (The Court noted that the Rules do not prohibit "truthful testimonials" that do not reference results obtained.)
- Communications that promise results are inherently misleading and are properly regulated.
- Portrayal of a judge or jury in an ad is inherently misleading – and thus appropriately regulated. 59% of the public surveyed felt that these advertisements implied that Louisiana courts can be manipulated by the lawyers in the ads! The Court characterized these types of ads as "compellingly misleading."
- The public finds lawyer advertising that uses disclaimers to be less truthful and more misleading than advertising that does not. The perception seemed to be that lawyers should not say anything that requires a disclaimer in the first place. The Court nevertheless held that the requirement that lawyers include disclaimers in ads that include non-authentic portrayals of clients or spokespeople served a sufficient interest in preventing deception.
- Regardless of whether they are "authentic" and thereby do not require a disclaimer under the rules, the public and LSBA members have less confidence in the integrity of lawyers that use advertisements that include scenes of accidents or accident victims.
- Since 62% of the public are not persuaded by celebrity endorsements that a lawyer has greater influence on the court than other lawyers, the requirement of a disclosure did not materially advance the State’s interest and was therefore unconstitutional.
- The State has a sufficient interest, advanced by prohibiting mottos or trade names that imply an ability to get results. This was based in part on the fact that 56% of the surveyed public believed that lawyer advertising is less truthful than advertising for other businesses.
- And again, last but certainly not least, the Court held that the Internet is a unique form of communication and it was inappropriate for the LSBA to simply apply the same rules to this medium.
What do you think? Please share your thoughts regarding the decision with us here. Leave a comment. We’d love to hear your view.