Outdated rules for 21st century advertising

By Diane Karpman

Karpman

What an exciting time to be a lawyer. Each day, e-mail delivers amazing offers from deputy ministers and financiers all over the world wanting to share millions with me. The Internet has changed everything, and its impact on lawyer advertising is especially profound. What was once prohibitively expensive is suddenly affordable, if not free.

The California Rules Revision Commission is updating our rules, written long before the widespread use of computer technology. Many are hoping that this revision will closely reflect the American Bar Association’s Model Rules, making the practice of law more uniform.

Basically, in the rule making process, when a new or novel idea emerges, we look at the past, and simply apply old ideas to the new concept. Therefore, we are attempting to apply rules developed for television, radio and print to Internet advertising, which may not work.

Louisiana is one of a handful of states that recently imposed a pre-approval requirement to a lawyer’s first dissemination of an advertisement. In a partial successful constitutional challenge to the new regulations, a district court suggested that “Internet advertising differs significantly from advertising in traditional media. The Supreme Court has recognized the uniqueness of the Internet as compared to other broadcast media …” Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board (2009 U.S. Dist. LEXIS 67244, at 46).

Although the rules strive for “uniformity,” prohibitions on lawyer advertising demonstrate the greatest amount of idiosyncratic local modifications of the Model Rules. This reflects provincial and often anti-competitive local interests in protecting their own state from outlier lawyers wanting to poach “their” clients.

A few states aggressively prosecute out-of-state lawyers for advertising violations. Two out-of-state lawyers who solicited air crash victims by sending self-laudatory information about their records for obtaining huge awards for disaster victims were indefinitely barred by the Indiana Supreme Court from practicing there. In The Matter of John P. Coale and Phillip B. Allen (2002), Case No. 98S00-9303-DI-309, argued that on a fundamental jurisdictional basis, Coale (Greta Van Susteren’s spouse) could not be disciplined since he was not admitted in Indiana. This argument was rejected, because sending promotional material into Indiana triggered Indiana’s right to discipline him. There are about six cases in which lawyers were disciplined for advertising or unauthorized practice of law in states where they were not admitted.

Most states have reciprocal discipline statutes, requiring lawyers who are disciplined in another jurisdiction to report it wherever they are admitted. They could then be subject to discipline in those other jurisdictions. California’s reciprocal discipline statute (Business and Professions Code §6049.1) provides for an expedited proceeding if a lawyer is disciplined elsewhere. “Elsewhere” could include not only another state, but also a federal agency (SEC or IRS, or a separate court (bankruptcy or workers’ comp.)

• Diane Karpman, a legal ethics expert, can be reached at 310/887-3900 or at karpethics@aol.com.