During lunch yesterday, we had some special guests: namely, attorney Adam Riposa and filmmaker Bob Ray, whose "I'm a Lawyer!" commercial we screened during the Advertising session earlier that morning. Mr. Riposa shared his somewhat unorthodox philosophy of lawyering, which he admitted was driven by a significant level of anger at the system. For legal reasons, Mr. Riposa requested that his comments not be publicized at this time, so I won't go into further detail. Let's just say his approach to zealous legal advocacy may not be for everyone.
After lunch, we had a panel entitled "Running in Place? - Part II of Advertising in the Digital Age." Unlike our morning panel, which discussed specific examples of legal advertising, the afternoon session focused on the intersection between lawyer advertising and the First Amendment. The panelists discussed some recent developments in a number of states, including Florida, Louisiana, and Virginia.
The panel was moderated by Prof. Jan Jacobowitz. The panelists were Tom Julin (Florida), Beth Alston (Louisiana) and Jim McCauley (Virginia).
In response to constitutional challenges, Florida has recently amended its advertising rules. In the process, it has significantly loosened its content-based restrictions on lawyer advertisements. On the other hand, the new amendments have extended these weaker rules to attorney websites and other forms of on-line advertising. So, in some ways, the recent overhaul has resulted in both a less restrictive and more restrictive advertising regime. Despite these changes, Florida's amendments do include at least one content-based restriction against "unduly manipulative" advertisements, which remains vulnerable to constitutional criticism.
Louisiana has seen some interesting constitutional challenges to advertising lately. One case involved a lawyer who uses Google's "pay per click" advertising (those short ads you see on the right side of the screen when you run a Google search). The lawyer argued that certain rules were too onerous to apply to Google ads, such as disclaimer requirements. The District Court struck down some of the those requirements as applied to internet advertising.
Another case resulted in Fifth Circuit decision striking down rules that prohibit lawyers from referring to their past results. In addition, excessive disclaimer requirements, mainly for television commercials, were held to be too onerous.
Evidently, Virginia adopted amendments a couple years ago that significantly relaxed its advertising rules, but those amendments were subsequently vacated. Of particular interest to me was a case involving the application of advertising rules to law firm blogs. These rules were challenged by an attorney, Horace Hunter, who operates a criminal defense blog; the court held that a lawyer has a constitutional right to blog about his own cases.
In the end, these issues come down to whether lawyers should self-regulate advertising in order to achieve certain "lofty" goals about enhancing the reputation of the legal profession. If we believe lawyers should self-regulate, how can we properly balance these regulatory goals against important constitutional rights?