Ending the Pursuit: Releasing Attorney Advertising Regulations at the Intersection of Technology and the First Amendment

19 Pages Posted: 22 Aug 2016 Last revised: 25 Jul 2017

Jan L. Jacobowitz

University of Miami - School of Law

Date Written: June 10, 2016

Abstract

In 2012, I characterized the enactment and enforcement of contemporary attorney advertising regulations as an endless pursuit to capture technology at the intersection of attorney advertising and the First Amendment. I invoked the image of Wile E. Coyote and his ongoing pursuit of the evasive Road Runner. Four years later, I have concluded that the pursuit is indeed endless and the “chase” should be abandoned in deference to both the First Amendment and the public’s ability to identify the proverbial wheat from the chaff in the world of Internet driven advertising. While professionalism remains a concern, the courts have found that professionalism concerns alone are not sufficient to chill commercial speech.

In lieu of a detailed set of professional conduct advertising rules, state bars should apply a general standard that prohibits advertising that is misleading or fraudulent. Most states and the American Bar Association Model Rules of Professional Conduct provide such a standard in Rule 8.4(c), which states that [i]t is professional misconduct for a lawyer to…engage in conduct involving dishonesty, fraud, deceit or misrepresentation. The 8.4(c) standard should enable the state bars to protect the public while simultaneously permitting attorneys the flexibility required to advertise in the digital age.

This article explores the premise that state regulation that governs attorney advertising by employing a standard that prohibits false and misleading advertising is the fair, efficient, and logical approach to advertising in the digital age. The article first provides a brief history of attorney advertising from the nineteenth century to the seminal Bates decision through today. Next, the article reviews a few of the recent court decisions and state bar ethics opinions that attempt to apply detailed advertising rules and guidelines to constantly changing technology. Then, the article reviews the tenor of the current national debate about attorney advertising and the Association of Professional Responsibility Lawyers (APRL) recent proposals to reform the advertising rules. Finally, the article concludes that streamlining the regulation of attorney advertising to require honest advertising that does not mislead the public is an approach that both adheres to the commercial speech doctrine and provides the public with access to information about legal service.

Keywords: attorney advertising, legal ethics, First Amendment, Model Rules of Professional Conduct

Suggested Citation

Jacobowitz, Jan L., Ending the Pursuit: Releasing Attorney Advertising Regulations at the Intersection of Technology and the First Amendment (June 10, 2016). The Professional Lawyer, Volume 24 No. 2 2017 American Bar Association. Available at SSRN: https://ssrn.com/abstract=2826426 or http://dx.doi.org/10.2139/ssrn.2826426

Jan L. Jacobowitz (Contact Author)

University of Miami - School of Law ( email )

1311 Miller Drive
Coral Gables, FL 33146
United States

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