The Problem with Bar Ad Rules
I’ve posted before about the Louisiana attorney advertising rules and Public Citizen’s lawsuit to stop those rules from being implemented. The last few weeks have seen an additional lawsuit being filed, by the Wolfe law firm, whose specific concern is the extent to which the new rules would proscribe all manner of attorney electronic communication, from blogs to Twitter. We’ve also seen some questions from commentators about whether these concerns are overblown.
They aren’t. State bar advertising rules are among some of the worst form of regulation. Start with restrictive, often vague and/or bizarre rules around attorney communications. Have them administered by a committee comprised on non-lawyers and lawyer-competitors to those advertising. Put the stakes on defying the rules the potential loss of one’s livelihood.
The worst part is the brazenness of the enterprise. Bars are run by lawyers, who should be aware that attorney advertising, like all commercial speech, is afforded first amendment protection so long as it is not false, deceptive or misleading. They also know that any proposed restrictions on advertising must be, under the Supreme Court’s Central Hudson decision, narrowly-drawn restrictions that directly advance a substantial state interest.
Did Louisiana do any such analysis of their ad rules? Did they take any findings, do any studies showing, perhaps, that testimonials or references to a lawyer’s track record are inherently misleading or problematic for consumers? Did they learn from their opportunity to see how similar rules fared when challenged in New York? Did they pay heed to counsel offered by the FTC, which weighed in on the inadvisability – from the consumer protection perspective – of moving forward with such rules? Nope, on all counts. Stunningly, the state didn’t even offer a fig leaf to the Central Hudson standard. Instead, Louisiana has simply decided that its rules are necessary to protect the “dignity of the profession,” and First Amendment considerations can be hanged.
Fortunately, an increasing number of challenges are being filed to these overreaching rules, in Louisiana and elsewhere. At the end of the day, all but certain restrictions on egregious in-person solicitation are going to be knocked down for being patently unconstitutional. And that’s a good thing – those who regulate attorneys should have to occupy the same legal universe as the rest of us.
