Proposed ammendments to the Rules of Professional Conduct that govern lawyer advertising and communications by lawyers with prospective clients in the State of Virginia are designed to prohibit attorneys from making any in-person solicitation in all areas of law, not just legal issues stemming from personal injury cases.
A recent decision by the U.S. Court of Appeals for the Second Circuit in Alexander v. Cahill on March 12, 2010 further progressed the idea that the legal industry will see even greater protection of First Amendment rights for lawyer advertising and solicitation of clients. Although the recent decision does not set aside New York’s thirty-day ban on direct unsolicited communications with potential clients in regards to potential personal injury and wrongful death actions, the Court of Appeals did however side a side many prohibitions on lawyer advertising such as the regulation of commercial speech that was purportedly false or deceptive.
To summarize, the Court of Appeals decided that a many of provisions governing lawyer advertising were indeed unconstitutional such as:
1. Client testimonials are not inherently misleading. While they could mislead if they suggest that past results indicate future performance, not all need do so.
2. Portraying a judge in an advertisement is not per se false, deceptive or misleading. What would be of concern is the implication that the attorney has the ability to influence the court improperly.
3. Banning gimmick type of ads such as humorous or “attention grabbing” features is not appropriate: “[q]uestions of taste or effectiveness in advertising are generally matters of subjective judgment.” Indeed, “[g]immicks . . . do not actually seem to mislead.”
4. An outright prohibition on the use of nicknames, mottos or trade names that imply the ability to obtain results in matter is not appropriate. The Court also noted that slogans or nick names such as “The Heavy Hitter” would indeed be prohibited even though it does not appear to be at all misleading.
Although this decision only applies to New York lawyer advertising rules, many states with will feel the pressure to uphold similar rule changes to protect the First Amendment rights of commercial speech.
