July 28, 2011 Articles

Constitutional Developments in Lawyer Advertising in 2010

Lawyer advertising developments in 2010 focused on the constitutionality of restrictions on lawyer advertising under the First Amendment.

By Erin L. Delatte

Lawyer advertising developments in 2010 focused on the constitutionality of restrictions on lawyer advertising under the First Amendment. In three significant decisions, the Second, Fifth, and Eleventh Circuits upheld some, but struck down many other, regulations on attorney advertising. Overall, the First Amendment remains alive and well in the realm of lawyer advertising, and attempts to regulate lawyer commercial speech remain something like “pushing on a balloon.” The acceptance of a few regulations is undermined by the rejection of many others. With three federal courts of appeal weighing in on the issue in a single year, one begins to a smell a writ grant from the Supremes. Could this be the year?

The three key constitutional decisions from 2010 include:

Public Citizen, Inc. v. La. Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011): The Fifth Circuit analyzed the constitutionality of several recent amendments to Louisiana’s Rules of Professional Conduct regulating lawyer advertising. Specifically, plaintiffs challenged six subparts of Rule 7.2(c), regulating the content of advertisements and unsolicited written communications regarding a lawyer’s services. The court evaluated each regulation and upheld some, but not all, of the new changes.  

Harrell v. Fla. Bar, 608 F.3d 1241 (11th Cir. 2010): In an action by Florida attorneys asserting First and Fourteenth Amendment challenges to nine rules regulating lawyer advertising in Florida, the Eleventh Circuit first decided several issues of justiciability and then found only one advertising regulation to be in compliance with the First Amendment.  

Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010): A New York lawyer challenged several recent amendments to New York’s rules governing attorney advertising. The Second Circuit found the majority of the changes to be unconstitutional as the state failed to present evidence that advertising actually harmed members of the public or that the suggested changes would remediate any potential harm. The court did, however, uphold a 30-day moratorium on targeted communications to potential clients after a personal injury or wrongful death event.

First Amendment Analysis
Inherently Misleading Commercial Speech
The government may freely regulate inherently false, misleading, or deceptive commercial speech, as the protections of the First Amendment do not extend to such speech. Alexander, 598 F.3d at 89. Thus, a state may restrict inherently deceptive attorney advertising. Id. For example, the Louisiana Supreme Court enacted Rule 7.2(c)(1)(E), which prohibits communications by an attorney that promise results. Public Citizen, 632 F.3d at 218. The Fifth Circuit found legal advertisements that promised results to be inherently misleading because no attorney can guarantee future results. Thus, the state may freely regulate communications that promise results, rendering Rule 7.2(c)(1)(E) a constitutional restriction on commercial speech. Id. at 219. Similarly, the Second Circuit found constitutional the portion of Rule 1200.50(c)(3) prohibiting New York lawyers from different firms giving the impression that they belong to the same firm. Alexander, 598 F.3d at 89–90. The court reasoned that such advertising was inherently misleading and thus was not entitled to First Amendment protection. Id. at 90.

Potentially Misleading Commercial Speech 
First Amendment protections, however, do extend to potentially misleading commercial speech, and, thus, states cannot freely impose content-based restrictions on potentially misleading attorney advertising. Id. To assess the constitutionality of content-based commercial speech restrictions, courts apply the Central Hudson test, which permits such restrictions when: (1) the asserted government interest is substantial, (2) the regulation directly advances that interest, and (3) the regulation is not more extensive than necessary. Id. at 88 (citing Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980)).

When assessing the first prong of the test, courts found that the following qualified as substantial governmental interests: protecting the public from unethical and potentially misleading lawyer advertising, preserving the ethical integrity of the legal profession, and curbing activities that negatively affect the administration of justice. Public Citizen, 632 F.3d at 220; Harrell, 608 F.3d at 1269; Alexander, 598 F.3d at 90–91. The state’s burden with respect to the second prong requires the state to demonstrate that “the harms it recites are real and that its restrictions will in fact alleviate them to a material degree.” Alexander, 598 F.3d at 91. To meet the third prong of the test, the state must demonstrate that the regulation is narrowly tailored, meaning that it is not more extensive than necessary to serve the state’s interest. Public Citizen, 632 F.3d at 221. Courts look to each specific restriction to assess the second and third prongs of the test.

Second Circuit: Alexander v. Cahill
In support of its amendments to New York’s rules on attorney advertising, the state relied upon three sources of evidence: (1) history, consensus, and common sense, including other states’ regulations on attorney advertising; (2) the existing rules governing attorney advertising already in place in New York’s Code of Professional Responsibility; and (3) the New York State Bar Association’s Task Force Report (Task Force Report or Report). Alexander, 598 F.3d at 92. Notably, the state did not put forth any statistical or anecdotal evidence of consumer problems with attorney advertising in New York or in other jurisdictions.

With this evidence in mind, the Second Circuit proceeded to evaluate the new rules, first looking to the rule prohibiting testimonials about a lawyer or law firm from a client while the matter is pending. In evaluating the second prong of the Central Hudson test, the court found that the restriction did not materially advance the state’s interest, because evidence presented by the state did not support such a conclusion. Instead, the Task Force Report relied upon by the state suggested that rules regarding testimonials should only be strengthened if testimonials did not contain disclaimers. Moreover, the Report found that an outright ban on testimonials would restrict the free speech rights of a client. Therefore, the state did not meet its burden of proving that this regulation prohibiting testimonials would materially advance its interests. Id.

Next, the court turned to the rule prohibiting the portrayal of a judge in advertising materials. The Task Force Report presented by the state observed that this restriction would materially advance the state’s interest, because a communication depicting a judge implies that a lawyer can improperly influence a court. Id. at 92–93. The court, however, found that a commercial’s portrayal of a judge did not necessarily imply a lawyer’s improper influence over a court, and, thus, an outright prohibition on all portrayals of judges could not meet the second prong of the Central Hudson test. Id. at 93.

The court then examined the new rule prohibiting communications containing attention grabbing techniques unrelated to attorney competence, designed to curb the use of special effects in lawyer advertising. The court found that although such techniques might be irrelevant to an attorney’s qualifications, they do attract the audience to the advertiser’s message and can directly import that message to the audience. Moreover, the court found that the state provided “no evidence that consumers have, in fact, been misled by these or similar advertisements,” and, thus, it could not sustain its burden of proof under the second prong of the Central Hudsontest. Id. at 94.

Finally, the court evaluated the rule banning advertisements that employ a nickname, moniker, motto, or trade name that implies an ability to obtain results. Although the Task Force Report presented by the state acknowledged that such slogans are likely to be misleading, the report did not recommend an outright ban on the use of such slogans. Moreover, the state once again failed to produce evidence showing that such slogans actually mislead consumers and failed to meet the second prong of the Central Hudson test. Id. at 94–95.

The court then determined that even if all of the above rules survived the second prong of the Central Hudson test, the state could not sustain its burden of showing that the rules were narrowly tailored to meet its goals. The restricted advertising was only potentially misleading, and a categorical prohibition on such advertising was not narrowly tailored to effectuate the state’s goals. The court noted that less restrictive methods, such as the use of disclaimers, could also further the state’s goals. Because the rules failed to meet the second and third prongs of the Central Hudsontest, they imposed unconstitutional restrictions on commercial speech under the First Amendment. Id. at 96.

The amended rules also provided for a 30-day moratorium on certain communications by an attorney to a potential client after a personal injury or wrongful death incident. The moratorium did not apply to broad, generalized mailings or advertisements. Id. at 85. The court once again applied the Central Hudson test to determine whether the moratorium was a valid infringement upon commercial free speech. First, the court determined that the state had a valid substantial interest in “removing a source of annoyance and offense to those already troubled by an accident or similar occurrence.” Id. at 97. Next, the court found that the rule met the second prong of the test as the imposition of a “time-limited moratorium on targeted solicitation of potential clients” materially advanced the state’s interest. Id. at 97–98. Finally, the court determined that the state narrowly tailored the moratorium to achieve its goals and thus met the third prong of the Central Hudsontest. Id. at 99. In its analysis of the final prong, the court determined that targeted advertising via television, radio, and Internet were analogous to direct-mail solicitations, a category of advertising over which the Supreme Court has upheld a similar moratorium. Id. at 102. Further, the rule was narrowly tailored because it allowed lawyers to continue general advertising during this period, and then permitted targeted advertising upon the moratorium’s conclusion. Id. at 103.

Fifth Circuit: Public Citizen, Inc. v. La. Attorney Disciplinary Bd.
Unlike the proponents of the regulations in New York, supporters of the amendments to the Louisiana rules regulating lawyer advertising actually conducted several surveys and focus groups amongst the public and the bar to ascertain the impact of lawyer advertising within the state. Public Citizen, 632 F.3d at 216. The court found that the evidence produced from these surveys supported some regulations, holding them to be constitutional. Id. at 225, 227–28. However, it found the surveys to be too vague to support other regulations, striking these rules. Id. at 222, 224.

For example, Rule 7.2(c)(1)(D) prohibited communications by Louisiana lawyers that contained a reference or testimonial to past success or results obtained. Id. at 218. First, the court divided past references into objective and subjective categories. Id. at 221. It then explained that regulation of objective, truthful information could not advance a substantial government interest and that regulation of this type of speech violated the First Amendment. Id. at 222. In assessing the rule’s restriction on subjective references to past results, the court acknowledged the possibly misleading nature of such speech. However, it also found that the state failed to meet its burden of proving that the statements were “so likely to be misleading” that prohibiting all references to them would materially advance the state’s substantial interests. Id. at 222–23. The court reasoned that although survey responses indicated that the public had a poor perception of lawyers and their advertising, they did not indicate how this would be alleviated by a ban on testimonials or references to past results. Id. at 222. In addition, this rule failed to meet the third prong of the Central Hudson test because the state failed to explain why employing a disclaimer would not alleviate its concerns regarding references to past results. The court found that requiring a disclaimer on subjective references to past results would be an acceptable, less-extensive restriction on this type of speech. Id. at 223.

Next, the court analyzed Rule 7.2(c)(1)(J), which prohibited communications by Louisiana lawyers that included the portrayal of a judge or a jury. Id. at 218. First, the court found that this rule did not fulfill the second prong of the Central Hudson test, because the state could not prove any connection between portrayals of judges and juries and the implication that a lawyer has an ability to improperly influence a court. Thus, the rule’s restriction on speech did not further any of the identified governmental interests. Moreover, the rule did not meet the third prong of the Central Hudson test, because the state failed to show why a less-extensive disclaimer requirement would not be effective in minimizing the harm addressed by this rule. Id. at 224.

Finally, the court reviewed Rule 7.2(c)(1)(L), whichprohibited communications by Louisiana lawyers utilizing a nickname, moniker, motto, or trade name that states or implies an ability to obtain results in a matter. Id. at 218. The court upheld this restriction, finding that it met both the second and third prongs of the Central Hudson test. The rule met the second prong of the test because the state adduced evidence showing that current advertisements using such mottos actually mislead the public. The results of surveys and focus groups conducted by the state revealed that “the advertisements containing these mottos misled the public, improperly promised results, and implied that the advertising lawyers could manipulate Louisiana courts.” The court found that this evidence directly pertained to and supported the rule’s restrictions. The rule also met the third prong of the test because it was narrowly tailored as it did not prohibit use of all mottos, but only prohibited those mottos that stated or implied an ability to obtain results. Id. at 225.

Eleventh Circuit: Harrell v. Florida Bar
The Florida Bar requires a lawyer to submit a television or radio advertisement to the Bar for review at least 20 days before the first planned dissemination date; during this period, the Bar reviews the ad and notifies the attorney whether the ad complies with the rules regulating lawyer advertising. Harrell, 608 F.3d at 1268. The lawyer may disseminate the ad upon receiving notice that the ad complies with the relevant rules. Plaintiff argued that this rule constitutes an unconstitutional prior restraint under the First Amendment. The Bar asserted that the rule should be construed to mean that the lawyer can disseminate the ad after receiving any opinion from the Bar and not merely a favorable opinion. Thus, the court found that the rule constituted a pre-filing requirement rather than a pre-clearance requirement, meaning that the rule was not a prior restraint, but that it did place an imposition upon free speech. Id.

The court found that the regulation passed the second prong of the Central Hudson test because allowing the Bar to review ads and advise lawyers of their compliance with the regulations reduced the number of noncompliant advertisements presented to the public, thus directly promoting the Bar’s stated interests. Id. at 1269–70. Finally, the rule passed the third prong of the test because the plaintiff failed to prove, or even suggest, a less restrictive means of effectuating the Bar’s goals. Id. at 1270–71. Moreover, the court found that the 20-day wait required by the rules imposed a constitutionally acceptable burden upon lawyers seeking to use television or radio advertising. Thus, the restraints upon free speech imposed by the rule were constitutional. Id. at 1271.

Potentially Misleading Commercial Speech 
To be valid under the First Amendment, a disclosure requirement need only be reasonably related to the state’s interest in restricting the advertising. Public Citizen, 632 F.3d at 227 (citing Zauderer v. Office of Disciplinary Counsel of the Superior Court of Ohio, 471 U.S. 626, 651 (1985)). Rule 7.2(c)(1)(I) prohibits communications by Louisiana lawyers that include the portrayal of a client by a non-client or the depiction of any event, scenes, or pictures that are not actual or authentic without disclaimer of such. Id. at 218. The Fifth Circuit found that the disclosure requirement mandated by this rule was reasonably related to the state’s interests in preventing consumer deception and promoting the ethical integrity of the legal profession. Id. at 228. The court found that statistical evidence presented by the state demonstrated that the public could not always tell whether a real client or actors presented testimonials, that these types of advertisements imply that attorneys can achieve positive results notwithstanding the facts of the case or the law, and that the advertisements did not raise the public’s opinion of the integrity of Louisiana lawyers. These findings, combined with common sense, demonstrated the required reasonable relationship to support the disclaimer requirement. Id. at 227–28.

The court, however, struck down the rule, regulating the format of the disclaimers. Id. at 228–29. Rule 7.2(c)(10) provided that when the rules required a statement or disclaimer to appear in an advertisement or an unsolicited written communication, it must be legible if written and intelligible if spoken aloud. The rule then prescribed a minimum font size for all written disclosures and disclaimers and a minimum speed of speech for all spoken disclosures and disclaimers. In addition, the rule added that electronic written disclosures should be displayed for a sufficient time to enable the viewer to see and read the disclaimer. Id. at 218. In striking down the format requirements, the court found the requirements to be unduly burdensome, as they would effectively prevent Louisiana lawyers from employing any type of short advertisement. Id. at 229. In addition, the state presented no evidence of how these format requirements were reasonably related to the state’s interest in preventing consumer deception. Id.

Observations from 2010
The First Amendment is the “Mount Everest” of the law, as the 2010 constitutional jurisprudence on lawyer advertising confirms. Only when a state produces specific, empirical data closely linked to the proposed regulation (as Louisiana did with respect to lawyer slogans) will a content-based regulation be upheld. The threshold for “manner and scope” regulations remains lower, but even there the regulations will be stricken if found to be unreasonably burdensome, as happened with Louisiana’s “font and speed” regulations on disclaimers.

Generally, lawyer advertising that is not inherently misleading is upheld, and the view that “lawyer advertising brings down the profession in the eyes of the public” is not enough to overcome the First Amendment. The federal courts seem comfortable with the notions that lawyers should be free to hawk their wares and that the public possesses sufficient discernment to avoid being duped by potentially misleading advertisements. Whether the Supreme Court will step in to further define these issues remains to be seen. One can safely bet that Louisiana, New York, Florida, and maybe other states will attempt to revise their rules to comply with their respective circuit’s gloss on the First Amendment, pushing on the balloon a little more.

Erin L. Delatte is an associate with Liskow & Lewis, PLC in New Orleans, Louisiana.