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5th Circuit OKs Restrictions on|Some Attorney Advertisements

NEW ORLEANS (CN) - Some Louisiana Supreme Court restrictions on lawyer advertising violate the First Amendment and cannot be enforced, but other restrictions are OK, the 5th Circuit ruled. It does not infringe upon free speech to prohibit lawyers from using advertisements, nicknames or mottos that promise results.

"A promise that a party will prevail in a future case is necessarily false and deceptive," Judge Edith Brown Clement wrote for the court. The court also found it is not unconstitutional to require disclosures about the use of simulated scenes or actors portraying clients.

"No attorney can guarantee future results. Because these communications are necessarily misleading, [the Louisiana Attorney Discipline Board] may freely regulate them," Clement continued.

It is no longer illegal, however, to include testimonials or references to past successes, or to depict a judge or jury. The court also reversed some disclaimer requirements, which it found were unduly burdensome and made it impossible for "Louisiana lawyers to employ short advertisements of any kind."

Recommended by a state attorney discipline board to crack down on lawyer misconduct, the rules, which took effect in 2009, tried to mirror strict guidelines in New York and Florida.

The Louisiana Legislature had taken aim at the advertising years earlier, passing a resolution stating that the ads had "become undignified" and "threatened the way the public perceives lawyers." Officials said new rules would help "to preserve the integrity of the legal profession, to protect the public from unethical and potentially misleading forms of lawyer advertising, and to prevent erosion of the public's confidence and trust in the judicial system."

As the state Supreme Court considered adopting the new restrictions in 2008, Public Citizen, a nonprofit group based in Washington, D.C., and two Louisiana attorneys, Morris Bart and William Gee III, argued that the new restrictions violated free speech and filed the suit.

After a federal judge in New Orleans had awarded the challengers partial summary judgment, they appealed to strike down more of the rules.

In reversing three of those rules on Monday, the 5th Circuit found that advertising tools like testimonials are not necessarily deceptive or misleading.

"Even if, as [the lawyer board] argues, the prohibited speech has the potential for fostering unrealistic expectations in consumers, the First Amendment does not tolerate speech restrictions that are based only on a 'fear that people would make bad decisions if given truthful information,'" Clement wrote.

The ruling criticized the lawyer board's argument that portrayals of a judge or jury in an ad would be misleading, stating that such is an "assumption that Louisianans are insufficiently sophisticated to avoid being misled by a courtroom not devoid of its normal occupants."

"The Supreme Court has explicitly instructed courts to reject such arguments when reviewing regulations of attorney advertising," Clement continued.

If members of the public take a negative view of mottos or testimonials, a law firm still has the right to make "a poor advertising choice," the ruling states.

"The Louisiana Supreme Court adopted a rule that, by its very language, targets speech that it identified as potentially or actually misleading to consumers," Clement wrote. "Under this rule, Louisiana lawyers remain free to employ as many nicknames, monikers, mottos or trade names as they wish, so long as they do not employ those devices to state or imply an ability to obtain results, thereby misleading the public."

Surveys found that 59 percent of the general public and 63 percent of members of the Louisiana Bar could not always tell when a testimonial in a lawyer advertisement was provided by an actor rather than by a real client.

Other survey findings showed that viewers disliked disclaimers that were spoken to quickly or written in too small a font. Clement wrote that no one has demonstrated that the new disclaimer rules will stamp out consumer deception.

In March 2010, the 2nd Circuit struck down much of the tough restrictions governing lawyer advertising in New York. The Supreme Court declined to take up an appeal of that case in December.

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