Regulation of lawyers touting expertise : Perfect solution to problem that does not exist
God forbid that you as a lawyer call yourself an expert, and you sure as heck better make sure that no directory or ratings service would classify you as that. That was beat into our heads in law school more than rule of perpetuity.
It's just too darn dangerous Joe to have some poor soul reach the conclusion that one lawyer has more expertise in a niche than another lawyer. We're not talking surgeons here. We're talking lawyers. It's just too risky.
You could play this out on Saturday Night Live and not change a thing. Viewers would think it was funny as hell. If they found out the truth - that we kowtowed to state bar associations saying we cannot advertise about our expertise, experience or the regard in which others hold us, they would think we were idiots.
Good to hear via a post from Connecticut civil rights and criminal defense lawyer Norm Pattis that lawyers may not have to 'roll over and play road kill' when, as Norm calls them, the 'geriatric souls' at the bar associations come rattling their swords about you referencing your expertise and experience.
I am heartened by an 11th Circuit decision I learned of only yesterday while attending a presentation on regulation of lawyers. The lawyer who litigated the case was told that he could not list the following in his ads: ''AV' Rated, the Highest Rating Martindale-Hubbell National Law Directory.'Â Why not? It could mislead the public.
The lawyer fought the case. He went to the District Court, which pusillanimously refused to strike the regulatory requirement on First Amendment grounds. Undeterred, he went to the 11th Circuit, where he found judges who acted like judges. In the absence of evidence of harm, the bar could not forbid the lawyer to list his rating. Mason v. Fla. Bar., 208 F.3d 952 (11th Cir. 2000).
The speaker Norm references also said that despite host of states scrutinizing Martindale-Hubbard, Super Lawyers and Chambers ads, no one is aware of one complaint in the state's 350 year history that a consumer ever felt misled by a lawyer's ads.
Regulation of ads, we were told, is referred to by one high placed regulator as 'the perfect solution to a problem that does not exist.'
Lawyers, not wanting to take a chance, seek informal ethics opinions approving the lawyers plans to tell the world about themselves. I am already seeing it with blogs. Lawyers are asking me, 'should we submit our blog to the bar for ethics approval?'
As Norm says, few (I'm not aware of any) decisions seem to be directed toward the blogosphere. But unless lawyers, presumably the defenders of the First Amendment, take a stand we're going to find lawyer blogs regulated on the basis that someone may reach the conclusion the lawyer publishing the blog has some expertise and experience. God forbid. Protect the children.
Unfortunately, per the new rules in Connecticut lawyers must submit their URL's. Whether or not they are looked at is another matter (supposedly done so at random). But the URL is considered a web presence/advertising and as such must be submitted.
You have wonder what their goal is Susan. Even if they had the time to look, and they couldn't, I'm not sure they would know what they are looking at in the case of a blog.
If you put ads on your webpage, then in Canada, and probably the US, you are publishing a newspaper and not marketing subject to the local bar jurisdicition.