Advertising rules in the YouTube era

By Diane Karpman

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.