Lawyers in New York are now capable of claiming that they can jump buildings in a single bound and stop bullets with their teeth in their ads, though it is unclear how these traits would encourage clients to hire them as lawyers. Nonetheless, according to courthouse news.com, “The 2nd Circuit struck down most of New York’s content-based restrictions on attorney advertisements, ruling that even an ad depicting giant lawyers with superhuman speed who regularly defend space aliens is not likely to mislead consumers.” Now, lawyers are capable of advertising in almost anyway they want, except for (1) depicting fictitious law firms, and (2) referring to specific incidents before 30 days have gone by since the incidents’ occurrence. The change actually resulted because the law firm Alexander & Catalano, led by lawyer James Alexander, had actually created an ad fitting the description provided in the quote, of lawyers defending space aliens.
The argument which Alexander provided was that the restrictions which had previously been in place impinged upon the rights granted to lawyers by the First Amendment. These restrictions prevented lawyers from making ads with a number of subject matters, including “attention-getting techniques unrelated to attorney competence,” as the alien ad would have done. The district court did not agree to fully lift the restrictions, as it still thought that restrictions on ads targeting accident victims before 30 days had passed were acceptable. The lawyers then appealed the decision, and the 2nd Circuit agreed with the district court, but also judged that the prohibition against fictitious law firms was constitutional and important, as well. The constitutionality of that judgment was based solely on the fact that depicting fictitious law firms could be harmfully misleading, as opposed to simple advertising practice. Thus, lawyers should not be allowed to depict fictitious law firms, so as to avoid any misleading information.
The moratorium on directly advertising to accident victims is simply reflective of a movement that all lawyers be subject to a similar moratorium on “ambulance chasing”. While lawyers are allowed to advertise general skill in matters that might be of significance for victims of a particular accident, they cannot directly solicit or advertise to those victims. Furthermore, the victims can come to lawyers for help, as long as the lawyers did not directly solicit that help.
These changing restrictions reflect nothing so much as a greater understanding and appreciation for harm to the consumer, and also for how much common-sense should apply to such issues. It has always been true that lawyers have served a very nitpicky, nuanced role in America, under which they would seek to find every possible loophole or gap in an argument and either take advantage of those holes and gaps, or plug them up. As such, in the past, it actually might have been entirely believable that laws against depicting lawyers in such a fictitious manner might have been entirely valid. After all, there could theoretically be some individuals who were so taken in by such ridiculous ads that they did believe lawyers were capable of doing such absurd feats.
But appreciation for common sense has increased, and it is no longer necessary for lawyers to quibble and worry about such minor affairs as whether or not lawyers can market themselves with such fictitious flair. The only thing that truly matters in these changes is that the consumer be protected from false advertising in a misleading, harmful sense. In general, this is a positive move for lawyers, as it enforces a basic idea which is all too easy to lose track of amidst other major tenets of being a lawyer. The basic idea in question is that taking advantage of clients and consumers is bad, and should be prevented first and foremost.
Many times, the function of a lawyer is that of a “devil-in-the-details” creator. The lawyer’s job is to design a contract such that every possible detail is accounted for, and there is no chance to misinterpret…but it can sometimes also be to slip a clause in there in obscuring language which will then cause a great deal of trouble for any individual without the necessary knowledge to search for such a clause. In other words, lawyers can use their skills to manipulate and take advantage of clients via cleverly deceptive tactics. These tactics are often not illegal, because the lawyer did still put in the provision in question in plain sight of the contract signer, and the signer had every opportunity to notice or ask questions, or simply to refuse to sign.
Though these changes on ad restrictions actually seem to be in the favor of advertising lawyers, the simple nature of the change sends a message to lawyers about what is most important to the district court and the 2nd Circuit court: protecting consumers. Lawyers are able to use traditional marketing tricks, like flashy effects and pictures, in order to sell their service, certainly. But ads which are intentionally misleading are not allowed, preventing lawyers from essentially hoodwinking consumers into pursuing the services of those lawyers. For instance, one particular mentioned example had to do with an ad depicting three different lawyers from three different law firms. The ad, however, named them as “The Dream Team,” which then made it seem as if these lawyers were all part of the same firm. This was false advertising in an unacceptable sense, in that the lawyers were not part of the same firm, and believing that they were was damagingly misleading for consumers. The emphasis, then, is on protecting the consumers from the kind of “innocuous” deception for which lawyers are famous, as evidenced by the plethora of lawyer jokes in the world today.
While the repeal on most of the restrictions for lawyer’s ads is not a truly outrageous or extraordinary thing, it does send a strong message out from the courts, a message which should be supported and repeated. Deception, even via omission as opposed to outright lying, is unacceptable when dealing with consumers and potential clients.