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By: Sara Rogan
Member, American Journal of Trial Advocacy
In the over 40 years since the seminal case of Bates v. State Bar of Arizona[1] in 1977, attorney advertising has been and continues to be revolutionized. What was once illegal is now prolific. It was estimated by Kantar Media’s Campaign Media Analysis Group that in 2016 alone, attorneys and firms spent almost $771 million on televised advertisements.[2] One firm is estimated to spend roughly $30 million annually on advertising.[3] The Institute for Legal Reform notes that “legal advertising not only appears to be recession-proof, but also politics-proof,” surviving and thriving in a time when other advertisement industries struggle.[4] A well-known Alabama attorney has at least 2,000 billboards employed for his advertisements throughout the state and is becoming a familiar face throughout the southeast.[5] Attorney advertisements take the form of billboards, commercials, displays on websites, and search engine prompts – not to mention all the paraphernalia that contains firm names and logos such as cups, koozies, pens, and notepads. The path is already being paved for attorneys to collect numbers from police reports to solicit their services to people involved in an incident.[6]
A common advertisement tactic for billboards is to show how much past clients have received in a settlement by displaying an exorbitant amount that is quite appealing.[7] However, receiving a large settlement is never a guarantee, as settlements are fact-driven and typically dependent upon a defendant’s assets.[8] One law firm in New York has taken appropriate measures to absolve themselves of future liability by indicating in their disclaimer that “[p]rior results do not guarantee a similar outcome.”[9] Could advertising these unicorn, million dollar settlements result in false expectations for potential plaintiffs? While Bates addressed advertising as a whole, it did not address any “extravagant” claims relating to the legal services.[10]
Understanding the basis and outcome of Bates is critical to addressing the potential issue of advertising today. Attorney advertisements prior to Bates were seemingly limited to listing “the attorney’s name, address, and telephone number, office hours, and the like . . . in the classified section of the telephone directory.”[11] These limitations were imposed for the preservation of the integrity of the profession, the possibility that clients could be misled, precaution in limiting costs for clients, along with several other policy reasons.[12] However, the Supreme Court regarded the permissible information as “scant nourishment.”[13] The Court eventually concluded that the aforementioned restrictions were not “an acceptable reason for the suppression” of such advertisements.[14] Consequently, the Court held that the advertisement in question, a newspaper advertisement displaying the services and fees the attorneys were offering, was permissible.[15] The Court reasoned that the rule barring the advertisement violated the attorneys’ First Amendment rights to Free Speech.[16] The Court nevertheless included a caveat, stating that even though speech in terms of attorney advertising is protected and permissible, it is still subjected to regulation and cannot be “false, deceptive, or misleading.”[17] Since this development, attorney advertising has skyrocketed. However, the Bates holding did not address the legal services themselves and whether or not they were adequate.
In general, this is no general prohibition under the Model Rules of Professional Conduct against advertising or discussing past settlements or judgments.[18] Rubenstein v. Florida Bar[19] elaborated on the issue of attorney advertisements that contained information regarding money a client has received from a past claim.[20] Within the Florida Bar, a task force advocated for a “complete ban on references to past successes or results in attorney advertising” regardless of the manner and method of advertising.[21] This rule evolved over time to restrict content unless the results publicized were “objectively verifiable.”[22] The firm in Rubenstein created some advertisements that allegedly violated that rules imposed by the bar.[23] The court determined that that rules regulating the attorney’s advertising were not enforceable and granted in favor of the attorneys. The court stated that
The Guidelines amount to a blanket restriction on the use of past results in attorney advertising on indoor and outdoor display, television and radio media. The Bar has not demonstrated that the prohibition’s breadth was necessary to achieve the interest advanced, or that lesser restrictions—e.g., including a disclaimer, or required language—would not have been sufficient. The Bar has failed to meet its burden under this prong as well.[24]
Essentially, attorney advertising enjoys a degree of protection offered by the First Amendment as long as it is not “false, deceptive, or misleading”[25] and that includes mentioning past settlements in advertisements.[26] While the legalities have been covered, what about the realities of attorney advertising?
Most lay individuals might not realize that these multi-million dollar settlements are not as common as the billboard they are advertised on. Further, the holding in Rubenstein allowing references to past claim amounts is not uncommon, as this court “joins a majority of states” in deciding that regulations “that completely prohibit attorney advertising of past results violate the First Amendment.”[27] With this trend expanding among a majority of states, the potential for unjustifiable expectations expands correspondingly. Neil Lloyd, who formerly served on the ABA’s Legislation Subcommittee, believes that potential clients are not counting on the settlements advertised but rather are using the advertisements merely to find an attorney and will then conduct additional research.[28] While this is the ideal path, it is also a potentially high burden to place on the public: should attorneys, who understand the legal system better, be more regulated by the bar in their advertisements, rather than depending on the public to protect themselves and make informed decisions?
The court has clearly drawn a line against misleading advertisements, but the issue is deciding at what point an advertisement for a large settlement crosses that line to become misleading. Comment 3 for Rule 7.1 of the Model Rules of Professional Conduct addresses this potential issue.[29] The comment recognizes that referencing a past judgment could be deceptive to future clients if the representation is “presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.”[30] The comment concludes with the recommendation of including a disclaimer to prevent any liability should a potential client rely on the advertisement as a guarantee for the outcome of their specific case.[31] The CEO of Group Matrix, Richard Sackett, has commented that “[e]veryone wants the practice of law to remain dignified . . . [b]ut the public doesn’t always respond to dignified ads,” indicating that ultimately lawmakers might need to intervene for attorney advertisements comparing their services and results against another, as the bar regulations might be insufficient.[32]
Essentially, if the statement is truthful or “objectively verifiable,”[33] firms and attorneys are not prohibited from saying it in their advertisements.[34] However, the truth can be misleading, as the truth in these instances is fact-specific and not necessarily a guarantee for future clients. Courts are attempting to balance the attorneys’ interests of Free Speech in advertising with the importance of protecting potential clients who, in their vulnerable state, might not realize that advertisements referring to past settlements are simply not as common as attorneys would have them believe. Hopefully over time courts will more clearly define this line for attorneys and firms who engage in advertising.
[1] 433 U.S. 350 (1977).
[2] Victor Li, Legal Advertising Blows Past $1 Billion and Goes Viral, ABA Journal (April 2017), http://www.abajournal.com/magazine/article/legal_advertising_viral_video.
[3] Id.
[4] Ken Goldstein, Trial Lawyer Marketing, Institute For Legal Reform (Oct. 2015), https://www.instituteforlegalreform.com/uploads/sites/1/KEETrialLawyerMarketing_2_Web.pdf.
[5] Kent Faulk, Alexander Shunnarah Legal Empire Built on Thousands of Billboards, TV Spots, Al.com (May 17, 2015), https://www.al.com/news/birmingham/index.ssf/2015/05/alexander_shunnarah_introduces.html.
[6] Natasha Sheth, Need a Lawyer? Check Your Text Messages, ABA Journal (June 27, 2017),https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2013/need-a-lawyer-check-your-text-messages/.
[7] Michael Hristakopoulos, Dan Newlin Got You How Much???, Orlando Sentinel (Aug. 7, 2017), https://www.orlandosentinel.com/opinion/os-ed-stop-dan-newlin-got-me-billboard-campaign-myword-20170807-story.html.
[8] Coulter Boeschen, The “Average” Personal Injury Settlement, All Law,https://www.alllaw.com/articles/nolo/personal-injury/average-settlement.html.
[9] Shanker Law Group, http://www.shankerlaw.com/images/Attorney_Advertising.pdf.
[10] Bates, 433 U.S. at 366.
[11] Id. at 366-67.
[12] Id. at 368, 372, 377.
[13] Id. at 367.
[14] Id. at 379.
[15] Id. at 384.
[16] Bates, 433 U.S. at 384.
[17] Id. at 383.
[18] Rubenstein v. Florida Bar, 72 F. Supp. 3d 1298, 1305 (S.D. Fla. 2014).
[19] 72 F. Supp. 3d 1298 (S.D. Fla. 2014)
[20] Id. at 1304.
[21] Id. at 1316.
[22] Id. at 1302 (quoting Fla. Rules of Prof’l Conduct r. 4-7.13).
[23] Id. at 1304.
[24] Id. at 1318.
[25] Bates, 433 U.S. at 383.
[26] Rubenstein, 72 F. Supp. 3d at 1303.
[27] Pamela Menaker, Court Strikes Florida Rule Preventing Advertising of Past Results, ABA Journal (April 6, 2015), https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2015/court-strikes-florida-rule-preventing-advertising-of-past-results/.
[28] Id.
[29] Model Rules of Prof’l Conduct 7.1 cmt. 3 (2015).
[30] Id.
[31] Id.
[32] Li, supra note 2.
[33] Id. at 1302 (quoting Fla. Rules of Prof’l Conduct r. 4-7.13).
[34] Searcy v. Florida Bar, 140 F. Supp. 3d 1290, 1292 (N.D. Fla. 2015).
American Journal of Trial Advocacy 