Clifford’s Notes

By Robert A. Clifford
Clifford Law Offices

An Illinois lawyer advertised his legal services on Polish-language radio stations in Chicago, describing himself as “the Lion of the Courtrooms.” The commercials featured jungle noises, a roaring lion, and a professional voiceover telling listeners to call him with their personal injury claims.

Upon investigation by state disciplinary officials, it was found that the lawyer, in fact, only handled personal injury claims that could be resolved through settlement. He never represented clients at trial and had referred cases to another attorney without obtaining the written consent of his clients.

The lawyer’s license was suspended for one year, which was stayed after 30 days, followed by a period of probation. In re Mark Sciblo, M.R. 20399, 04 CH 97 (Ill. Nov. 22, 2005).

Although there are potential marketing or advertising violations that are brought to the attention of the Illinois Attorney Registration and Disciplinary Committee by consumers, competitors, or even anonymously, James Grogan, deputy administrator and chief counsel for the ARDC, said, “We try to focus on helping widows and orphans, not advertising and marketing violations.” Certainly, if it comes to the attention of the ARDC, as in the Sciblo case, the state will investigate and take action, he said.

Grogan notes that, although the decisions are public, they are published by the Illinois Supreme Court as Administrative Orders, not opinions, and can be found by searching online or through the office of the court.

Attorneys have been allowed to advertise for the last 30 years since Bates v. State Bar of Arizona, 433 U.S. 350 (1977), recognized that “advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange.” The Bates Court also found that “because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising.” Id., at 383.

A case in point: A few years ago on late-night television, Robert Vaughn, The Man from U.N.C.L.E., could be seen pitching lawyers’ services in a commercial that was customized to name the local law firm in a particular market. He became the voice of an Indiana firm, Keller & Keller. Various television commercials had actors depicting insurance company adjusters strategizing on how to handle a claim. When they found out it was Keller & Keller representing the injured victim, “[a] metallic sound effect follows and the senior adjuster, now looking concerned, states: ‘Keller & Keller?’ Let’s settle this one.’” In the Matter of James R. Keller, 792 N.E.2d 865 (Ind.2003).

Vaughn then advised viewers that, “‘[T]he insurance companies know the name Keller & Keller,’” and invited anyone injured in an automobile accident to tell insurance companies that they “mean business” by calling that particular law firm. He also added, “‘They go after your rights piece by piece by piece until you get every dollar you deserve.’” Id.

The Indiana Disciplinary Commission publicly reprimanded two attorneys at the firm. Id. Under the Indiana Professional Conduct Rules, the commission found that the firm represented that it “will achieve favorable results based solely upon the respondents’ reputation with insurance companies.” Id. The commission was concerned that the law firm “created an impression that the claims they handle are settled, not because of the specific facts or legal circumstances of the claims, but merely by the mention of the name of the respondents’ firm to insurance companies.” Id. A federal district court in North Carolina also ruled that that advertising campaign created “an unjustified expectation” for consumers. Farrin v. Thigpen, 173 F.Supp.2d 427 (M.D.N.C.2001).

In 2002, the American Bar Association changed its Rules for Professional Conduct to allow lawyers to advertise their services “through written, recorded or electronic communication,” first recognizing the latter. Rule 7.2(a) Clearly, the advertising landscape has changed with the proliferation of electronic media, in particular, the Internet. As lawyers make their way through the maze of advertising possibilities, they must tread carefully, realizing that many questions are raised regarding ethics, attorney-client relationships, entrepreneurial opportunities, consumer deception, and guarding the public trust in our system of justice.

A lawyer who advertises her experience and qualifications is protected by the First Amendment, provided that accurate factual information is presented that can be objectively verified.

Florida has been at the forefront in setting the standards for attorney advertising. In a well-publicized case, two attorneys ran TV commercials depicting a pit bull with a spiked collar, telling viewers to call 1-800-PIT-BULL for a lawyer. The Florida Bar issued a public reprimand, stating that these images “are not objectively relevant to the selection of an attorney.” Florida Bar v. Pape, 918 So.2d 240 (Fla.2005).

Although it is important for both consumers and businesses to understand the role of lawyers, they must receive information in a constructive, objective, accurate way. Deceptive or misleading advertising has not been found to be protected under the First Amendment’s commercial speech doctrine. It must be remembered that the purpose of regulating lawyer advertising is not only to punish an offending lawyer but also to protect the public by maintaining the integrity of the bar.