Attorney Solicitation

In the old days, when word of mouth was not enough, attorneys sporting three-piece suits and pocket watches exchanged business cards as an indirect way to market their services. Business cards transitioned into tasteful “please welcome” newspaper announcements. Creative lawyers using the First Amendment as a shield to fend off attorney disciplinary bodies developed bolder ways to reach a larger audience. They plastered their visage with catchy slogans on billboards. After billboards, the most enterprising attorneys rolled out radio spots, television commercials — then came websites, blogs, attorney rating companies, and now, the ugliest four letters in the attorney solicitation world: SPAM.

I hate spam, both the canned pork delicacy popular on the Hawaiian Islands and the unwanted electronic junk mail that clogs up my megabyte space. But to gain an appreciation of the scope of unwanted electronic attorney solicitation, I took one for the team. I opened my spam folder cautiously, worried that by merely reading material designated as spam I would be locked in a forevermore electronic embrace with the sender or, worse yet, catch some nasty virus.

My spam folder contained a hefty batch of attorney solicitations coaxing me to consider a free consultation on medications I have never taken: “Have you or a loved one used [drug at issue] while pregnant and had a child born with birth defects? You may be entitled to financial compensation! … DON’T DELAY! Find out if you are entitled to compensation for your suffering TODAY!” Too bad the First Amendment doesn’t prohibit the reckless and improper use of exclamation points.

The First Amendment and Attorney Advertising

So how did we ever get to the point where the white-collar class peddles their legal services in email blasts to strangers? A short review of the law sets the stage for our current spam quandary.

Long before the invention of the internet and the term “going viral” became part of our lexicon, bar associations forbad attorney advertising. The rationale was that advertising didn’t fit the dignified image of the counselor of law. I think we can all agree that there’s no lawyer more dignified than Atticus Finch, and the image of Atticus hustling clients with television spots or, shudder-to-think, spam, borders on blasphemous.

The American Bar Association’s first code of ethics, adopted in 1908, states that “solicitation of business by circulars or advertisements, or by personal communications or interviews, not warranted by personal relation, is unprofessional.”¹ The only form of permissible advertising was printed business cards.

Efforts to advertise beyond a business card met with failure until the mid-1970s, because of the Supreme Court’s restrictive interpretation of the First Amendment in Valentine v. Chrestensen.² The Valentine court held that while the First Amendment guards against government restriction of speech in most contexts, the “Constitution imposes no such restraint on government as respects purely commercial advertising.”³ The court reasoned that advertising was: a) not as important as political speech; b) harder to chill than political speech because of the strong profit motive; and c) easier to verify than political speech, so there’s no need to tolerate even the slightest whiff of falseness.⁴

The zero tolerance view against false advertising has not changed; the First Amendment does not and never has protected false advertising. But since the 1976 landmark decision of Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,⁵ some degree of First Amendment protection applies to truthful commercial speech, which is a great result for consumer product manufacturers, but an ambiguous one when the advertisement concerns professional services. Writing for the majority, Justice Harry Blackmun wrote that “the free flow of commercial information is indispensable.”⁶ He observed that “[a]s to the particular consum­er’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”⁷ Consequently, the court overruled Valentine and struck down a ban on prescription drug prices.

Shortly after the release of the Valentine stranglehold on commercial advertising, the court decided Bates v. State Bar of Arizona.⁸ In Bates, two civic-minded attorneys opened a legal clinic in Phoenix, aiming to provide legal services at modest prices to persons who did not qualify for legal aid.⁹ To jump-start the business, they placed in the local newspaper innocuous ads identifying the prices of uncontested divorces, simple adoptions, name changes, and other routine legal services.¹⁰ The state bar president complained, and a disciplinary action ensued. Arizona’s ethical rules prohibited a lawyer from publicizing himself in newspapers, magazines, radio, or television announcements. The disciplinary body punished the attorneys, but it wasn’t much more than a slap on the wrist with a don’t-do-it-again admonition.¹¹ The attorneys appealed, using the First Amendment as their kryptonite.

In this epic battle, the Arizona Bar donned the role of Profession Protector and laid out its best argument. Attorney advertising was “inherently misleading.” Such advertising would have an “adverse effect on professionalism” in the legal profession, would stir up litigation, drive up prices, lead to a decrease in the quality of legal services, and would be too difficult to regulate.¹²

In a five-to-four vote, the court sided with the advertising attorneys.¹³ The majority found “the postulated connection between advertising and the erosion of true professionalism to be severely strained.”¹⁴ It also described the historical aversion to attorney ads as a “rule of etiquette” rather than a “rule of ethics.”¹⁵ The court reasoned that “the prohibition of advertising serves only to restrict the information that flows to consumers” and that “advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange.”¹⁶

Post-Bates Advertising

After Bates, attorney advertising skyrocketed. Issues concerning the boundaries of lawyer solicitation yo-yoed up and down to the Supreme Court. The court struck down a rule prohibiting a state from disciplining an attorney for soliciting breast-implant clients in the newspaper.¹⁷ The court invalidated a rule that banned direct in-person solicitation letters.¹⁸ In Ohralik v. Ohio State Bar Assn.,¹⁹ the court drew the line between newspaper and letter solicitation from in-person solicitation.²⁰ In upholding a ban on in-person attorney solicitation, the court observed that “[u]nlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection.”²¹

In 1995, the court okayed a thirty-day ban on direct mail solicitations by lawyers in Florida Bar v. Went For It, Inc.²² Before passing the disputed rules, the Florida Bar carefully studied the effects of lawyer advertising on public opinion.²³ The Florida Bar engaged in a two-year study involving surveys, hearings, and public commentary, which led, in part, to the enactment of a rule prohibiting personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for thirty days following an accident or disaster.²⁴ A group challenged the regulation. In a five-to-four decision, the United States Supreme Court sided with the Florida Bar. The Court found that the Florida Bar had “substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered.”²⁵ The court observed that the bar’s study, which was unrebutted, provided “evidence indicating that the harms it targets are far from illusory. The palliative devised by the Bar to address these harms is narrow both in scope and in duration.”²⁶

The body of law after Bates carefully distinguishes commercial speech from speech at the First Amendment’s core.²⁷ “‘Commercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,’ and is subject to ‘modes of regulation that might be impermissible in the realm of noncommercial expression.’”²⁸ While advertising by attorneys may not be subjected to blanket suppression, regulation is allowed, indeed encouraged, to “assur[e] that advertising by attorneys flows both freely and cleanly.”²⁹

Evidence-based restrictions have a better chance of passing constitutional scrutiny. In Went For It, the record showed that as of June 1989, lawyers mailed 700,000 direct solicitations in Florida annually, with 40% aimed at accident victims or their survivors.³⁰ More than 50% of the general population surveyed said that contacting persons concerning accidents or similar events violated their privacy.³¹ Forty-five percent of those surveyed believed that direct-mail solicitation was “designed to take advantage of gullible or unstable people.”³²

This type of evidence also may be used to determine if an ad is misleading or inherently misleading. In Public Citizen, Inc. v. La. Attorney Disciplinary Board,³³ the United States Court of Appeals for the Fifth Circuit addressed various Louisiana Rules of Professional Conduct concerning misleading attorney advertising. The Louisiana Bar conducted a study of attorney advertising, which included telephone interviews from randomly selected Louisiana residents.³⁴ Based on the study, a designated bar committee revised the attorney advertising rules. A conglomerate of interests challenged the changes, which included, among others, a rule prohibiting a communication guaranteeing results.³⁵

The Fifth Circuit held that a blanket rule aimed at prohibiting a communication guaranteeing results withstood judicial scrutiny. The court explained that “[a] promise that a party will prevail in a future case is necessarily false and deceptive. No attorney can guarantee future results. Because these communications are necessarily misleading, ‘the bar may freely regulate them.’”³⁶

In reviewing the other rules at issue which targeted potentially misleading information, the Fifth Circuit found that the bar had a substantial government interest in “protecting the public from unethical and potentially misleading lawyer advertising and preserving the ethical integrity of the legal profession.”³⁷ The court struck down a prohibition against a communication containing a reference or testimonial to past successes or results, a prohibition against communications that include the portrayal of a judge or jury, and certain disclosure requirements.³⁸ The court reasoned that these types of targeted communications could be presented in a non-deceptive manner and were not inherently likely to deceive the public.³⁹

The court, however, upheld the rule prohibiting communications that utilize a nickname, moniker, motto, or trade name that states or implies an ability to obtain results in a matter.⁴⁰ The bar had presented evidence in the lower court of two Louisiana surveys and three focus groups. The court observed that “the survey and focus group responses consistently reveal[ed] that the advertisement containing these mottos misled the public, improperly promised results, and implied that advertising lawyers could manipulate Louisiana courts.”⁴¹

Further, the Louisiana State Bar Association prepared a Handbook on Lawyer Advertising and Solicitation (“Handbook”) that identifies categories of offending mottos. The Handbook provides, in pertinent part:

A nickname, moniker, motto, or trade name will be considered to state or imply an ability to obtain a result if it:

1. States or implies directly a positive result or pattern of positive results. For example: “The Smith Law Firm: The Winning Law Firm”; “The Jones Law Firm: Losing is Not an Option”; “The Cash Machine Legal Clinic, L.L.C.”;
2. States or implies the use of means that violate the Louisiana Rules of Professional Conduct or other law. For example: “The Johnson Law Firm: We Break the Rules for You!”; “The Rule Breaker Firm”; “The Allen Law Firm: Winning Has No Boundaries!”;
3. Makes a comparison with another lawyer, law firm, or lawyers in general, which cannot be factually substanti­ated. For example: “The Duke Law Firm: Better Than the Rest”; “The Premier Lawyers”; “After you’ve tried the rest, come to the best!”⁴²

The Handbook also lists five categories of mottos that do not state or imply an ability to obtain results and are permissible under the disciplinary rule. Examples of permissible mottos in Louisiana include, without limitation: “We Work Hard For You,” “We’re By Your Side,” “We Stand Up for You,” and “Injured? Feel Alone? We’re There for You!”⁴³

Lawsuit Center Advertisements: Lawyer Ads?

Another issue concerns the onslaught of electronic ads from so-called “centers.” The spam I received in the last month came from the Mesh Patch Lawsuit Center, the Mesh Patch Recall Center, the Anti-Depressant Injury Lawsuit Center, and the Social Security Disability Attorney and Advocate Services. Do these trade names sound kosher? They imply a stable of lawyers specializing in a type of service, convey a message of expertise and of getting favorable results. Whether this assertion is in fact true requires further investigation.

In In re Decision on CAA 47-2007,⁴⁴ the New Jersey Supreme Court did an initial review of a “center”-sponsored attorney solicitation. There, the Alpha Center for Divorce Mediation, P.C. (“Alpha Center”) challenged a decision by the court’s Committee on Attorney Advertising (“CAA”), finding that Alpha Center’s trade name violated the New Jersey rules of professional conduct.⁴⁵ On appeal, Alpha Center sought First Amendment protection. The court directed the CAA to develop a more complete record before it issued a decision on merits.⁴⁶

The Fifth Circuit addressed another reiteration of the attorney moniker conundrum in Gibson v. Tex. Dep’t of Ins., Div. of Workers’ Comp.⁴⁷ The lawsuit arose after the Texas Department of Insurance issued a cease and desist letter to John Gibson who was using the words “Texas” and “Workers’ Comp” in the domain name of his website. Gibson, in fact, was an attorney who represented plaintiffs in workers’ compensation actions pending in Texas.⁴⁸ He chose the domain name of “texasworkerscomplaw.com,” which violated a state law prohibiting the use of Texas and workers’ compensation in advertising.⁴⁹ After receipt of the cease and desist letter, Gibson initiated a federal lawsuit against the state agency challenging the statute’s constitutionality as applied to him under the First Amendment.⁵⁰ The district court dismissed the action, but the Fifth Circuit reversed in part.⁵¹

The Fifth Circuit agreed with Gibson that “his domain name and blog may do” more than propose a commercial transaction. The court observed that as with “many new issues involving the internet, the proper method of analysis to determine whether a domain name is commercial speech or a more vigorously protected form of speech is res nova. A domain name, which in itself could qualify as ordinary communicative speech, might qualify as commercial speech if the website itself is used almost exclusively for commercial purposes.”⁵² The court did not reach the merits because the record was silent on “all of the surrounding facts and circumstances involving the website’s domain name.”⁵³

Slowing the Flow of Misinformation

Attorney advertising has gone viral, creating a maelstrom of secondary effects. Critics claim that electronic advertising further damages the image of the justice system and places an inordinate emphasis on the “business” of law at the expense of public service. It also stirs up litigation and creates potential harm to the solicited client in the form of “overreaching, overcharging, under-representing, and misrepresentation.”⁵⁴ Further, the simple message of you-too-may-be-harmed in mass media formats (e.g., spam, internet blogs, television commercials, radio spots, newspapers, and billboards) creates the illusion of fact. Proponents of mass media attorney solicita­tion continue to assert the benefits the pubic receives from more information.

We live and work in an unprecedented age of quick and easy information, but not all information is true; worse yet, misperception is often more damning than fact. I recently deposed a plaintiff who told me that based on what she saw on television, combined with the attorney-sponsored information on the internet, she believed she had a valid lawsuit, despite what her doctors told her. I hear this perception at nearly every plaintiff deposition. The plain truth is that even nice people would rather believe a slick piece of lawyer advertisement than their own doctor.

We can’t stop the spam, the commercials, and other mass media campaigns. But maybe proactive actions can slow the flow and clean up the mess of misinformation. The following concludes with a few practical points:

• The key to slowing the flow of misinformation is a strong offense. Companies should vigilantly monitor the internet, television, radio, and other outlets of solicitation for potentially false advertisements that taint facts and poison the well of public opinion.
• The next step, which is more difficult than it sounds, is to identify the source of the ad and its state of origin. This task will assist in identifying the violator and determining if there are any bar violations and state law for false advertising.
• In reviewing the attorney solicitation, determine if the advertisement guarantees results. If so, this is per se false and misleading.
• • Are there any claims as to quality of services that may not be susceptible of measurement or verification? If so, are these claims likely to be misleading?
• Identify the factual assertions in the solicitation. It is well established that inclusion of verifiable facts in attorney advertisement is protected by the First Amendment. But if the facts are not true, then the ad is false and misleading.
• Identify the inferences from the ad. Are reasonably inferred facts false and misleading?
• Does the advertisement include any nicknames, monikers, mottos, or trade names that state or imply an ability to obtain a result?
• Is there a disclaimer? If so, does the disclaimer cure or prevent the conduct from misleading or deceiving the public?
• Looking at the totality of the circumstances, is the advertisement one that is likely to mislead the public as to the truth?

If yes to any one of the questions above, then consideration should be given to the issuance of a cease and desist letter. Beyond that, it is never too early to consider eliciting survey evidence in support of a false advertising claim. Such surveys are not necessary for patently or inherently misleading solicitations. Anything short of that standard requires evidence. While surveys are expensive, the price may be worth it in certain circumstances given the spiraling, viral way information is created on the World Wide Web. After all, what is the price of the truth?

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[1] American Bar Association, Canons of Professional Ethics, Canon 27 (1908).

[2] Valentine v. Chrestensen, 316 U.S. 52 (1942).

[3] Id. at 54.

[4] Id.

[5] Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).

[6] Id.

[7] Id.

[8] Bates v. State Bar of Arizona, 433 U.S. 350 (1978).

[9] Id. at 354-355.

[10] Id. at 372.

[11] Id. at 356.

[12] Id. at 366-371.

[13] Id. at 371-384.

[14] Id. at 368.

[15] Id. at 371.

[16] Id. at 376.

[17] Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).

[18] Shapero v. Kentucky Bar Ass’n., 486 U.S. 466 (1988).

[19] Ohralik v. Ohio State Bar Ass’n., 436 U.S. 447 (1978).

[20] Id.

[21] Id.

[22] Florida Bar v. Went For It, 515 U.S. 618 (1995).

[23] Id. at 620-621.

[24] Id.

[25] Id. at 635.

[26] Id.

[27] See generally, Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980).

[28] Went For It, 515 U.S. at 623 (quoting Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989).

[29] Oralik, 436 U.S. 384.

[30] Florida Bar v. Went For It, 515 U.S. at 627.

[31] Id.

[32] Id.

[33] Public Citizen, Inc., v. La. Attorney Disciplinary Board, 632 F.3d 212 (5th Cir. 2011).

[34] Id. at 215-217.

[35] Id. at 217.

[36] Id. at 218-19.

[37] Id. at 219-20.

[38] Id. at 220-24.

[39] Id.

[40] Id. at 224-27.

[41] Id. at 224-25.

[42] Id. at 226, n. 9. See also LSBA Handbook <http://www.lsba.org/MemberServices/LawyerAdvertising/2008-9LawyerAdHandbook.pdf>. Last accessed Mar. 25, 2013.

[43] Id. at 226-27, n. 10.

[44] In re Decision on CAA 47-2007, 37 A.3d 1087 (N.J. 2008).

[45] Id.

[46] Id. at 1088.

[47] Gibson v. Tex. Dep’t of Ins., Div. of Workers’ Comp., 700 F.3d 227 (5th Cir. 2012).

[48] Id. at 232-33.

[49] Id.

[50] Id.

[51] Id. at 233-38.

[52] Id. at 235.

[53] Id.

[54] Ohralik v. Ohio State Bar Ass’n., 436 U.S. at 461.

Finis