Legal Advertising Ethics: The Public’s Not THAT Gullible, 2nd Circuit Rules

The fact that lawyers are prohibited by their professional ethics standards from engaging in conduct that is misleading or dishonest has caused many state bars to hold the profession to restrictions on advertising that would ban most of the TV commercials we see every day for any other product or service. For example, lawyers cannot engage in self-praising hyperbole and say, for instance, that the Firm of Slash and Burn is “the best real estate law firm in Miami,” because the statement is not objectively true or cannot be proven to be accurate.

While many states have gradually surrendered in the battle to keep lawyer advertising unusually forthright and dignified (you can see what monstrosities this has wrought here) New York actually toughened its lawyer advertising rules a few years ago, decreeing..

An advertisement shall not:

(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.
In other words, no geckos. In other words, when a commercial shows a lawyer as a superhero, the viewing public will actually believe she is a superhero because lawyers can be trusted and no lawyer would ever engage in artistic metaphor. In other words, a law firm can’t call itself “The Justice League” because it may suggest to a reader or TV viewer that the firm’s lawyers can’t lose, unlike all other lawyers. In other words, the public is so gullible that it will take legal commercials literally, even though it hasn’t looked at any other advertisements that way since “Uncle Miltie” ruled the ratings.

Well, the Second Circuit of the U.S. Court of Appeals has put that idea to rest, declaring that 1) lawyers have First Amendment rights too, and  2) the public harm the rules were designed to prevent was dubious at best. If the public didn’t believe that there’s a giant Kool-Aid pitcher breaking through walls somewhere, it isn’t going to believe that Melvin Finster, attorney-at-law, can move around the city at the speed of light. The public isn’t so stupid after all.

That’s a relief.

2 thoughts on “Legal Advertising Ethics: The Public’s Not THAT Gullible, 2nd Circuit Rules

  1. Pingback: And Then a Sensible Dinner | The Legal Satyricon

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