Advertising rules in the YouTube era
By Diane Karpman
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Karpman |
The legal profession has Byzantine advertising rules, designed for a print
world that never anticipated YouTube. YouTube, recently purchased by Google,
is a wildly popular video sharing site. According to Wikipedia, 65,000 videos
are added daily. They are often amateur and unprofessional, frequently taken
with cell phones, and offer a real slice of Americana circa 2006. Copyright
infringement is rife. (Copyrighted material can be removed at the owner's request — but
isn't exposure better?) The government posts public service announcements,
which then mix with political ads, anti-American videos and religious videos.
It is pure unadulterated free speech. If something happens anywhere in the
world, you can bet it will be captured on a cell phone and instantly viewable
on YouTube.
Our advertising rules prohibit communications that are false, misleading or
confusing. At least half of the lawyer YouTube videos are satire and parody.
Parody is inherently confusing, until you realize it is a joke. A famous cartoon
shows two dogs sitting in front of a computer. One says to the other, "See,
nobody knows you're a dog on the Internet." You can't tell which lawyer "ads" are
real and which are spoofs. Just as the traditional evening news has become
confused with the fake news on the Daily Show, so have the lawyer ads on YouTube.
Remember, successful ads are all about exposure. Exposure occurs in trying
to figure out if it is real or a spoof. Nationally, you have states enacting
stricter regulations. Florida requires pre-approval of broadcasts and a couple
of lawyers were disciplined in Florida for comparing themselves with pitbulls.
Paradoxically, the Internet is designed to prevent regulation.
YouTube means that "attorney media marketing" could become a relic of the
past. Everyone can be immediately viewable 24/7 on the Internet. Try a search
of "lawyer" on YouTube, and don't miss "dog lawyer." (Sidebar to animal rights
lawyers, I adore my Welsh Terrier, Buster, who my son immortalized on YouTube
attacking an ivy wall to the sound of Dick Dale & The Del-Tones.)
For those of you saying I don't need to read this because I don't advertise,
think again. Just about anything with a lawyer's name on it is considered to
fall within the parameters of Rule of Professional Conduct 1-400. As lawyers,
we all have business cards and letterhead, so we all advertise.
When lawyer advertising violations appear in civil litigation, they are merely
window dressing for other claims, like another ornament on an already over-decorated
Christmas tree. When complaints are filed at the State Bar for advertising
violations, they are almost always generated by other lawyers, who consider
the ads to be poaching on their market share.
The organized bar has struggled for decades to regulate lawyer advertising.
It may be time to realize that the train has left the station and somebody
let the dogs out. Eventu-ally, it may be that lawyers, like politicians, will
be required to certify ads, and recite, "I'm Diane Karpman, and I approve of
this ad."
• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com.
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