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In Praise of Self-Laudatory Lawyer Ads

Bans on self-laudatory lawyer ads are paternalistic, overly broad and elitist -- not to mention unconstitutional. That is the argument made by Nat S. Stern, a professor at Florida State University College of Law, in a newly published research paper, "Commercial Speech, 'Irrational' Clients, and the Persistence of Bans on Subjective Lawyer Advertising."

It is an area in which lawyers tread carefully in their advertising and marketing materials. We avoid being subjectively boastful about ourselves or comparing ourselves to our competitors. "Just the facts, ma'am," is the mantra of lawyer advertising. Many lawyers exercise this discretion willingly, while others feel compelled by state ethics rules, both express and implied.

But to the extent states place categorical bans on self-laudatory lawyer ads, they are probably at odds with Supreme Court doctrine regarding the permissible limits on commercial speech, Stern says.

A categorical ban on such claims rests on premises at odds with the Court’s commercial speech jurisprudence. In particular, the prohibition clashes with the Court’s disapproval of sweeping restrictions rooted in paternalistic assumptions about the public’s capacity to assess commercial advertising. Admittedly, the Court has indicated some latitude for states to curb representations about legal services that are not susceptible to objective verification. Given the broader foundations of commercial speech doctrine, however, these pronouncements cannot be taken to support wholesale suppression of attorney advertising that exceeds the narrow presentation of data.

A key flaw in such bans is the belief that consumers are too gullible and naive to sort through lawyers' claims of excellence, Stern argues. Such paternalistic policies rest on shaky ground, he contends. "It seems doubtful that the public cannot place in proper perspective attorneys' claims of excellence or expertise." More to the point, such policies conflict with Supreme Court jurisprudence involving commercial speech. "In other contexts, the Court has resisted state attempts to decide which communications in the realm of opinion are worthy of expression."

State rules against subjective claims "remain one of the last bastions of restrictions on attorneys' advertising," Stern asserts. It is not, however, a bastion likely to tumble in one fell swoop. Instead, he believes such restrictions will be whittled away piece by piece. Even that, he says, "would advance the salutary notion that the profession responsible for defending First Amendment principles also enjoys their protection.

[Hat tip to Media Law Prof Blog.]

Posted by Robert J. Ambrogi on May 28, 2009 at 11:17 AM | Permalink | Comments (2)

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