Editor's note: The Louisiana Supreme Court announced Oct. 31 it had delayed implementation of new rules governing advertising by lawyers in the state, according to the Associated Press. Moving the date when the rules take effect from Dec. 1 to April 1 would allow more time to resolve a federal lawsuit that claims the restrictions are unconstitutional, Chief Justice Pascal Calogero, Jr., said in a statement.
NEW ORLEANS — Personal injury attorney Morris Bart has spent millions of
dollars to make "one call, that's all" a familiar refrain for television
viewers, but Louisiana’s new rules on lawyer advertising may ruin the return on
Catchy phrases and mottos like Bart's have been seen and heard on televisions
across the country, prompting some states to silence what have been called
deceptive, misleading ads that have eroded the industry's reputation.
Louisiana is the latest state to take action, preparing to implement some of
the nation's toughest rules on attorney advertising.
But Bart, one of his competitors and a national consumer advocacy group have
sued to block the rules from going into effect Dec. 1, claiming the new limits
go too far.
"You can regulate speech that is false, deceptive and misleading, but you
can't regulate taste," he said. "When you put blanket bans on speech, you're on
The rules prevent Louisiana lawyers from promising "results" or referring to
"past successes." They also can't use nicknames or mottos that imply an ability
to get results. A handbook issued by the Louisiana Bar Association cites "the
winning law firm," ''losing is not an option" and "the cash machine legal
clinic" as hypothetical examples that would violate the new rules.
A committee will review the ads' contents, and attorneys who break the rules
could suffer professional sanctions.
Bart's lawsuit claims the rules also impose a broad ban on the use of client
testimonials, actors' endorsements and re-enactments. Ads also won't be allowed
to portray a judge or jury or compare one lawyer's services to another.
"They're definitely one of the most restrictive set of rules for advertising
in the country," said attorney Greg Beck of Public Citizen Inc., the nonprofit
group that filed similar suits in New York last year and in Florida this year
over lawyer-advertising rules.
A federal judge in Syracuse, N.Y., ruled in July 2007 that some of that
state's new restrictions were unconstitutional and blocked New York's attorney
disciplinary authorities from enforcing them. The state is appealing that
Elsewhere, a committee formed by the Missouri Bar Association earlier this
year proposed stricter requirements for disclaimers in lawyer ads. A few years
ago in South Carolina, lawyers were told they could no longer to call themselves
the "heavy hitter" or the "strong arm" after that state passed stricter ad
In contrast, New Mexico lifted a requirement four years ago that all lawyer
ads be screened in advance by a bar association committee.
"There really hasn't been much consistency from state to state," said Micah
Buchdahl, chairman-elect of the American Bar Association's law practice
management section. Buchdahl said efforts to restrict lawyer ads are typically
grass-roots movements within the profession and not part of a national campaign
led by outside interests.
In 1977, the U.S. Supreme Court ruled in Bates v.
State Bar of Arizona that lawyer ads are a form of commercial speech
entitled to some First Amendment protection, a decision that spawned a
proliferation of attorney ads and periodic attempts to rein them in.
The Louisiana Bar Association, which recommended the new rules adopted by the
state's Supreme Court, says the limits are designed to protect consumers and
respond to concerns that some ads give the profession a bad reputation.
"We're not here to arbitrate taste," said association President Elizabeth
Erny Foote. "Our first goal is to protect the public."
Chief Justice Pascal Calogero Jr., through a court spokesman, wouldn't
comment on the new restrictions. But the court's 25-page order issuing the rules
said they balanced "the right of lawyers to truthfully advertise legal services
with the need to improve the existing rules in order to protect the public from
unethical forms of lawyer advertising."
One of Bart's competitors, attorney William Gee III, has run ads featuring
actor Robert Vaughn, who starred in the 1960s TV spy series "The Man from
U.N.C.L.E." Gee thinks the new restrictions will prevent him from using the
actor as a paid spokesman.
Gee says he believes the state's existing rules, which bar "false, misleading
or deceptive communications" in advertising, are good enough.
"It's our position that these rules go far enough in protecting the public,"
said Gee, who has been practicing personal-injury and maritime law since
Bart, whose firm spends more than $5 million annually on ads in seven
television markets in Louisiana, Mississippi and Alabama, claims the rules are
part of an anti-consumer movement to shield "big business and corporate America"
from costly litigation.
"Big business doesn't like lawyers like me advertising because we represent
consumers and working people that bring claims against big business," he