Ethics Dunce: The Florida Bar. Again.

The reluctance of the legal profession to acknowledge that members of the public are as qualified to recognize metaphors, puffery and hyperbole in the marketing of the legal services as they are when they are buying cupcakes or hiring plumbers continues to astound. Many state bar associations still have, and enforce, ethics rules that make the kind of obvious analogies routine in TV, online and print advertising violations because they are deemed “misleading or deceptive.” Florida has long been one of the most notable laggards in applying common sense to lawyer advertising. In contrast, the District of Columbia, with the largest bar in the nation, has largely eliminated such rules. except in conduct constituting outright lies. Just a few days ago, I told a client that the other bars were slowly moving in D.C.’s direction. I did not expect Florida’s bar to again embarrass itself and its lawyers–AND MY DOG—again, after making itself the butt of jokes over a decade ago with virtually the same complaint it made against a lawyer’s ads more than a decade ago. I thought the Florida Bar had learned. I thought eleven years was more than enough time for it to accept the basic concept of advertising…and to learn about dogs.

Guess not.

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Life Imitates Saul

Lawyer Billboard

 The billboard ad of North Carolina lawyer Larry Archie has drawn a lot of attention in the state and on legal ethics forums.

Some observations:

1. I was a little late seeing “Breaking Bad” ( I tend to avoid show with drug dealers as heroes) so I didn’t see the obvious connection between the popular AMC show’s cynical, unethical and effective slime-ball lawyer Saul Goodman, played by Bob Odenkirk, and last year’s jaw-dropping—but funny!—video ad for the services of Pittsburgh criminal lawyer Daniel Muessig.

2. This is why we ignore popular culture at our peril….and I think the legal profession needs to stop laughing and start worrying. People really do think Saul who is a criminal lawyer, is typical, and bar associations are doing very little to dissuade them. This is irresponsible, dangerous, and stupid. The profession has a duty to educate the public about how lawyers are supposed to act and why, and if it whiffs on that obligation (as it has for about the last hundred years) public respect for the justice system will continue to drop. Continue reading

Online Review Ethics: Yelp And The Law Firm

"...and so do our own employees!"

“…and so do our own employees!”

Is it professional misconduct for members of a law firm or the non-lawyer assistants for which they are responsible to post fake reviews of their work to a consumer website? I would argue that could be: it is almost certainly deceptive advertising, which is prohibited to a greater or lesser degree in all state ethics codes, and it is dishonest and misleading communications of the sort that has drawn discipline for some attorneys in other circumstances. Whether or not such a slimy, if common practice (at least among other professions, like wrtiting) is sufficient to raise “a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” will be determined by lawyers themselves, and you would be amazed at what many of them  don’t consider sufficient to do this. I am admittedly extreme on this issue: I don’t think lawyers should lie, and take a dimmer version of even harmless deception than most in my field. This is profession that depends on trust, and the more someone lies—I don’t care about what—the less trustworthy they are.

These issues arise because the online consumer site Yelp appears to have caught employees of the law firm The MacMillan Group posting fake positive reviews about itself, on behalf of fictional clients. Continue reading

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.. Continue reading