La. high court lists lawyer-ad rules

• By ALLEN M. JOHNSON JR.
• Advocate New Orleans bureau
• Published: Jul 4, 2008 - Page: 19A - UPDATED: 12:05 a.m.

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NEW ORLEANS — The Louisiana Supreme Court announced Thursday new standards for lawyer advertising, including pre-clearance of all ads by the Louisiana State Bar Association — and possible disciplinary action for violators.

But don’t expect attorneys to swallow the rule changes without a fight, a law professor said.

Retiring Chief Justice Pascal Calogero said the amendments to the Rules of Professional Conduct for attorney advertising were the result of months of study by both the state bar and a court committee, chaired by his successor, Catherine D. Kimball.

The review began with a request from the state Senate in 2006.

“The Court’s decision balances 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 advertising,” the Supreme Court release said.

Dane S. Ciolino, a distinguished law professor and expert on legal ethics at Loyola University in New Orleans, however, said by trying to rein in outlandish attorney ads that may mislead the public, the court may be heading for a battle over free speech.

“A lot of lawyer advertising are tacky,” Ciolino said. “However, I have constitutional concerns with some of these positions the court is taking. Similar rules in the state of New York were attacked and were found to have a violated the First Amendment. I think we can expect to see some lawyer challenge the constitutionality. Lawyers are wont to file lawsuits and you can bet somebody’s going to file a lawsuit.”

Some of the “significant changes” to the rules, the court release says, include:

• The addition of standards for lawyers who advertise over broadcast media as well as the Internet and by e-mail.

One new rule for ads appearing on television or radio states that “prohibited content” on includes “background sounds” and any other feature of the ad that is “false, misleading or deceptive.”

• Also prohibited are ads that “compare one lawyer’s services to another lawyer’s services, unless the comparisons can be factually substantiated,” another rule states.
• Ads which include the portrayal of a judge or jury, the use of actors in place of real lawyers, and the “reenactment of any events or scenes or pictures that are not actual or authentic
• Amendments concerning the “type and content” of advertising that violates the guidelines, according to the court release, such as any ad in which a lawyer “promises results.”

Asked if common ads for “1-800-NOT-Guilty” would skirt the new rule, Ciolino says that it would be up to the committee to decide.

“I don’t think anyone is that stupid,” he said

• The court says Louisiana lawyers will not be prohibited from running their ads, however, attorneys will be required to clear their ads with the state bar’s Rules of Conduct Committee.

“Lawyers whose advertisements are found by the committee not to be in compliance with the rules will be informed that dissemination or continued dissemination may result in professional discipline,” the Court news release stated.

The new rules take effect Dec. 1.