You find yourself suddenly in need of a good lawyer. Maybe you were in an accident or perhaps someone took unfair advantage of you in a business deal. Do you trust advertising to help you find the right lawyer?
Before the late 1970s lawyer advertising, something now as common as previously nonexistent prescription drug commercials, were nowhere to be seen in Louisiana. Lawyers were prohibited from advertising with anything more than a “tombstone” announcement revealing only their existence, address and telephone number.
Following the U.S. Supreme Court’s 1976 ruling in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. that the U.S. Constitution’s First Amendment protections for freedom of speech applied to commercial utterances, lawyers began to challenge staid limitations on their advertising. Beginning with a series of decisions in 1977 the high court defined how constitutional principles apply specifically to lawyer advertising. Generally speaking, the court allows states to constitutionally regulate commercial speech if “the regulation directly advances a substantial government interest” and “is not more extensive than is necessary to serve that interest.”
In October 2008 the Louisiana Supreme Court, after two years of study, adopted “Rule 7” of the Rules of Professional Conduct in response to the public outcry and legislative condemnation concerning what was seen as distasteful and deceptive lawyer advertising. Challenges arose quickly, and implementation of the rules was delayed. A group of attorneys and “Public Citizens, Inc.” challenged the rules in the U.S. court system. A final order was entered by the U.S. Fifth Circuit Court of Appeals in 2011 (five years after the Louisiana legislative resolution directing the court to address the issue) finding that several provisions of the rules were unconstitutional. The Fifth Circuit, quoting the U.S. Supreme Court, stated: “A regulation that restricts potentially misleading commercial speech will pass constitutional muster if the regulation directly advances a substantial government interest and is not more extensive than is necessary to serve that interest.”
The court further said that advertising that is inherently likely to deceive or has in fact been deceptive receives no protection and the state may prohibit it entirely. The court also held that the Louisiana Disciplinary Board has asserted at least two substantial government interests: protecting the public forum from unethical and potentially misleading lawyer advertising and preserving the ethical integrity of the legal profession.
Perhaps the two big changes to the Louisiana rules caused by this decision are that lawyers may use truthful testimonials in their advertising and they may make truthful references to past achieved results (verdicts and settlements). Although the rules require that attorneys file their advertisement with the Louisiana State Bar Association, those advertisements are not required to be filed in advance. However, if filings are made in advance, the bar association will provide to the attorney a critique of the advertisement’s compliance. Advertisement that is web-based must be compliant with the rules but need not be filed with the state bar association. The entirety of the rules on lawyer advertising are available on the Louisiana Supreme Court website, www.lasc.org under the Rules of Professional Conduct (Rule 7).
Still, you should not take advertising by lawyers or anyone else at face value. As you search for the right lawyer, use these time tested steps to pick the right person to guide you and perhaps represent you in your legal needs:
1. Ask attorneys you know well but who do not practice in the area of law involved for their recommendations.
2. If you know judges in the area, ask them what they know about the specific lawyers whose services you are considering.
3. Ask friends or business associates who you believe have experienced similar legal needs about the services of the attorney who represented them.
4. Consult lawyer rating services such as the oldest and best known, Martindale-Hubbell (www.martindale.com).
5. Interview a lawyer and obtain client references or names of actual cases they have handled.
6. Check with the Louisiana State Bar Association to verify that the lawyer is in good standing.
Use lawyer advertising like you would any advertising: It is a starting point in a selection process that only works well if you utilize every other resource at your disposal.
Richard Broussard is a partner in the Lafayette law firm of Broussard & David. He represents clients with claims for personal injury or wrongful death arising from aviation, offshore, product liability and transportation accidents.