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January 02, 2008

The Connecticut Legal Advertising Police are Out of Control!!!

(UPDATE:  1/3/07 - I'm a little surprised by the 'apathy' surrounding the news of the CT Statewide Grievance Committee's merciless approach to advertising.  One commenter labeled the examples in this post as 'innocuous.'  How can you describe the inability to use an adjective (any adjective) in your advertising as innocuous?  To be told if you describe yourself as dedicated and professional it will mislead the public and must come out? It seems to me we are being outfitted for uniforms, our heads shaved and will be issued our dog tags to instructed to state nothing more than rank and serial number to potential clients.  Another anonymous e-mailer suggested SCOTUS failed the profession when they allowed advertising in the profession at all.   Does no one see the danger in this kind of unrestrained censorship by the Grievance Committee in the name of protecting the public?  Does noone, in CT at least, see their professional rights and freedoms being abridged except Attorney Aspell who commented?)

Now my marshmallows are really getting toasted!

In this week's edition of the Connecticut Law Tribune, Attorney David Atkins is interviewed by the Trib about the 'eyebrow' raising opinions being dispensed by the Statewide Grievance Committee, which is making the brew haha in New York over their new advertising rules look like a lovefest. 

The Committee is getting very extreme in three areas such as:

the concern about improperly suggesting a specialized field of practice; accolades, such as Super Lawyers; and touting past results and comparisons with other lawyers.

When it comes to stating you have received an award such as SuperLawyers (which is nonsense, anyway):

the committee has not concluded that a CT lawyer is prohibited from truthfully indicating that he or she has been designated by a lawyer rating system.  What they have required is that in connection with any rating system...the ad directs the reader to the statistical data of the collection process.  (Secret algorithms won't cut the mustard..take note, AVVO.)  The committee has not weighed in on other rating systems such as Best Lawyers in America or even Martindale-Hubbell.

In the area of improperly suggesting a specialized field of practice:

The committee has taken an extremely strict view of Rule 7.4 of the Connecticut Rules of Professional Conduct.  It says, "A lawyers shall not state or imply that lawyer is a specialist, unless he or she is certified" pursuant to a complex certification program....the committee has seized the wording that a lawyer shall not state or imply that the lawyer is a specialist, and that it is  presumptively misleading to use words such as "emphasize," "concentrate" or "focus on."

When questioned by the reporter that it makes sense to use such words so you don't take a dog bite case to a tax attorney, Atkins responded:

That's why this is a pretty dramatic position to take...I understand there are a lot of law firm web sites being changed, either at the behest of the committee or as a result of the firms reading their advisory opinions.

(Trib): It seems like there should be an ethical way for a lawyers to convey what kind of law he or she practices.

Atkins: If your practice is matrimonial and you say you practice in the area of matrimonial law and divorce, the committee will presumably bless that...But a recent ad that was reviewed before broadcast claimed the firm was exclusively involved in immigration law.  The committee rejected it because it felt it violated the specialization restrictions.  (What????)

(Trib): So this has become a real tightrope.

Atkins: Yes....In the third category, the committee has taken a somewhat strict view about comparisons with other lawyers.  In one opinion, they rejected the phrase, "excellence, integrity and dedication," that a firm had used in a proposed ad.  Which means, when you think about the very purpose of advertising, it's to make your services distinct.  But the committee has taken the prohibition on unsubstantiated comparisons and essentially used that as a basis to reject any adjective about a firm's services.  (Hair on fire!)

(Trib): It sounds like the bar regulators have their work cut out for them.

Atkins:  The question is: is the public misled?  The premise behind many of these conclusions, it seems to me, is a somewhat paternalistic view of the public and its ability to distinguish or understand advertising.  I think the public is more sophisticated than that.

Is anyone else imploding about now? I sat in on the Committee's introduction of the new rules of advertising which went into effect on July 1, 2007.  The committee members were all very charming and nonchalant about it..... while secretly practicing their goose-stepping behind closed doors. I was appalled then and challenged a member of the committee with regards to blogging as advertising and referenced the then pending litigation in New York.  I was told, "you are required to submit quarterly any URL with your firm's name on it. We don't distinguish between static websites or blogs and we are keeping our eye on what is going on in New York."  End of topic.

This is appalling.  New York lawyers pulled out the nuclear artillery when they felt their mouths being sewn shut.  Connecticut just says, "How high?"

Quite frankly, if Connecticut lawyers don't start fighting back, they deserve whatever gag gets shoved in their collective mouths.  If they can't start advocating for their own rights, maybe they should give up their licenses now.


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Carlos Leyva

I completely agree! That kind of censoring is completely out of control and not warranted. It is not clear that it will hold up under freedom of speech scrutiny, despite the fact that the USSC will tolerate more regulation of "commercial speech." The examples that you cited seemed innocuous enough, there appears to be more going on here than what is apparent on its face (e.g. potential anti-competitive behavior).

Jim Aspell

Hear! Hear!

This entire advertising crackdown has been ill conceived from the get go. In an effort to raise the standards of professionalism, the Committee seeks to return us to those idyllic days of yesteryear when lawyers were relegated to listing their names and phone numbers in the telephone directory.

It's a different world now, folks. Being a lawyer means having to go out there and scratch and claw for the small pool of Connecticut clients that need our services. It is very easy for members of Statewide to condemn advertising while they collect their State check every week. It is quite another thing for those of us who actually practice law for a living to let the clients know that we are out there.

Maybe we should hire Norm Pattis?

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