Tuesday, March 12, 2013

"I'm Back on My Feet"

Stephen Gillers, Regulation of Lawyers
"I'm Back on My Feet"

*This, like the other answers to questions in the book, are largely based on student opinion and do not necessarily state the correct law.

To determine whether an advertisement is protected by the first amendment one can first look at the holding in Alexandra. The court in Alexandra decided a case regarding attorney advertisement and looked at whether the commercial speech was unlawful or misleading based on the Central Hudson test. In the present advertisement, we have not found anything that would make the statement unlawful and are under the assumption nothing in the advertisement is unlawful. However, one must check the individual statutes and court rulings of the jurisdiction. Assuming that nothing about this advertisement is unlawful, we must look to whether the advertisement or any part of it is misleading. In addition to the United States Supreme Court ruling in Central Hudson, the court looked to whether an ad was misleading, to determine whether it is protected by the first amendment. The ABA in Model Rule 7.1 states that a communication is misleading when it contains a misrepresentation of fact or law, or omits a fact necessary to make the state considered as a whole not materially misleading. Here the commercial omits the fact that the person speaking is not an actual client but an actor. This may be considered misleading to a viewer of the commercial in that they may think that the person on the screen who was unable to pay their bills and had been helped by this firm through bankruptcy was an option for all and such results would occur. Therefore, the commercial would probably be considered misleading.

Assuming that a jurisdiction does not have a statute which limits attorney advertising to only actual clients who went through the scenario they are discussing (and such a statute does not impeded on the first amendment rights of the law firm) one must look to whether having an actor discuss the scenario on behalf of the client is misleading. The issue that arises is whether it is misleading if an actor states the real scenario of what happened to an actual client as if it happened to themself. As stated below, the best practice to insure the statement is not misleading would be to have the person speaking clarify that he or she is a hired actor, stating something an actual client told them and have the client sign an affidavit affirming everything the actor says is true.

The problem raises the issue of what occurs if the actor is someone famous, does that change the above statements? It may change peoples’ perception of whether the statement is misleading. On the one hand a viewer watching an ad with a famous person may instill trust because of that person, or think that the actor himself used this attorney and believe they must be good. On the other hand a viewer may understand by seeing that this is a professional actor that the actors statement did not happen to the actual actor and is a script or recitation of another client. If the actor clarifies they are an actor and are only stating an actual clients testimony and all facts are true this will likely not be misleading and having a professional actor make the statement should not change that.

Some states do impose restrictions on attorney advertisements. Those states limit them to actual facts about the lawyer (see comments to ABA Model Rule 7.2). The above story may not be actual facts about the clients, depending on the jurisdiction. If this jurisdiction has a rule that limits attorney advertisements to actual facts about the attorney, depending how stringent the rule is, one may either have to limit the commercial to just saying the results obtained or the attorney explaining some of the things he can do ie. If a person is about to lose their home, car, etc. the attorney may be able to assist them depending on their facts through bankruptcy.

When considering a state rule that would prohibit the use of actors and dramatizations the two major concerns would be: one whether the rule would meet the test for regulating speech set out in Central Hudson and two there would be a public policy concern about what lawyers would realistically be allowed to do after the rule was put forth. The central Hudson test requires that unless commercial speech is unlawful or misleading it can only be regulated if it meets three elements. First there needs to be a substantial government interest. Second the regulation needs to directly advance the governmental interest asserted and third it cannot be more extensive than is necessary to serve that interest. “States generally have an unfettered right to prohibit inherently or actually misleading commercial speech”. So if using an actor is deemed to be materially misleading the government would likely have an interest is protecting the public from that. The second prong requires the rule to further that interest. Here a rule that prohibited dramatizations and actors would clearly further the goal of protecting the public from the misleading use of actors. However, the regulation would likely have a hard time meeting the third prong, which is that there is no less restrictive way to meet the goal. Requiring  a disclaimer would be a less restrictive way to further the goal of protecting consumers from misleading actors. 

Additionally there is a public policy concern. If the use of all actors were banned that would likely dramatically lower the use of commercials because the only way lawyers could prove they were successful would be to get real clients to agree to be in the commercial. So essentially this ban would reduce attorney advertising to only how to contact them and what their practice areas are. On the one hand this might not be a bad thing because everyone would be a level playing field and there would be no consumer confusion but on the other hand it would eliminate any way for consumers to differentiate or tell which practice in their judgment is best suited to handle their claim.

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