Law Firm Advertising, the New York Bar Association, and the First Amendment

In an interesting turn of events, Federal Judge Frederick J. Scullin has overturned the New York State Bar Attorney Advertising regulations which took effect on February 1st, 2007. These regulations were regarded as being among the most stringent and limiting of the all the states, and placed strong restrictions on what can and cannot be done in a New York attorney’s advertising and marketing efforts.

In this situation, the Federal Court found that attorney advertising is protected by the First Amendment and that the First Amendment prevents states from arbitrarily restricting advertising just because some might find it distasteful. The ruling went on to note that the state had not produced any evidence that its restrictions on speech were needed to protect consumers. 

What’s interesting is how this ruling will affect the outcome for other states that are also grappling with these same issues. The Louisiana State Bar, for example, is in the process of potentially adopting new, more stringent attorney advertising rules similar to those of New York. Louisiana’s proposed rules had come under fire in March 2007, from the Federal Trade Commission (FTC), the Bureau of Consumer Protection and several other federal groups, who jointly submitted comments to the Louisiana Bar expressing concern that “these (proposed) rules would unnecessarily restrict truthful advertising by attorneys in the state.”

While the FTC and the other groups are against deceptive advertising by lawyers, they believe that the Louisiana State Bar should focus on “reasonable restrictions that are specifically tailored to prevent deceptive claims in a way that preserve competition to provide the optimal level of protection for consumers. Rules that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services in Louisiana.”  

Other states bar associations that have adopted more restrictive advertising rules are also coming under fire by those claiming First Amendment rights violations. So, what does this all mean? Well, at a broad level, it clearly seems that the pendulum on attorney advertising might be swinging back towards the middle with a focus on “reasonable” restrictions rather than “prohibitive” restrictions. At a law firm level, however, the basics shouldn’t change just because the rules may become (more or) less restrictive. Your marketing and advertising should focus on highlighting your law firm’s brand and articulating its value proposition and differentiators to your prospective clients. What will change is how that message is communicated.