Ethics of Attorney Advertising: The Effects of Different State Regulatory Regimes, The

Georgetown Journal of Legal Ethics, The, Summer 2005 by Olson, Emily

These two sets of rules regarding attorney advertising provide an example of an alternate approach, with Texas taking the more detailed approach in terms of listing acceptable and unacceptable behavior in lawyer advertising. These approaches are similar to the Model Code in the way they detail what information may and may not be communicated to specific clients as well as how this information may and may not be advertised instead of providing a general framework like the Model Rules. However, the format of the rules is the only significant difference between them and the Model Rules and Model Code provisions. These variations have the same basic effect on attorney advertising regulation because they differ little in substance.

III. DIFFERENT ATTORNEY ADVERTISING REGULATION SCHEMES HAVE SIMILAR RESULTS

There is no question that in the last few decades of the 20th century, attorney advertising has expanded rapidly. As previously described, all states now have some form of restriction on attorney advertising. However, despite the fact that states have used various forms and formats to address the issue of regulating lawyer advertising, almost every approach has resulted in similar restrictions and allowances. The interpretation of State Ethics Rules concerning Attorney Advertising often result in the same outcome because they are guided by the same underlying principles, especially the goal of preventing misrepresentations or false statements by attorneys in advertisements.

Every regulatory scheme prohibits false or misleading statements or any other form of misrepresentation by the advertising attorney. In the Chair's Introduction to the Model Rules, one of the reasons for establishing and promulgating the Model Rules was "persistent concerns about lawyer honesty, candor, and civility."58 However, the argument that the codified rules would ever have the effect of preventing false or misleading advertising is weak because the ABA and state bar associations have been even more hawkish about protecting the "respectability" of the legal profession. As one scholar writes,

with advertising, most lawyers will behave as they always have: They will abide by their solemn oaths to uphold the integrity and honor of their profession and of the legal system. For every attorney who overreaches through advertising, there will be thoughts and of others who will be candid and honest and straightforward.... [I]t will be in the [honest lawyer's] interest... to assist in weeding out those attorneys who abuse their trust.59

The real forces guiding attorney advertising are money, historical precedent, and changes in the current marketplace. Some of the various regulatory regimes described include provisions which require specific information to be included in attorney advertisements. As was previously stated, the Supreme Court values the intelligence of the consumer of legal services in effectively determining which information is important in making informed choices. The provisions in the Model Code and both the Florida and Texas regulations include very specific information on what must and may be included in attorney advertising and in what format this information may be communicated. According to some empirical evidence, it appears as though the regulations do not achieve this goal. One survey found there was "an inverse relationship between the information available to consumers and the types of information consumers felt were necessary to making an informed choice of attorney."60 This information suggests that regulations on attorney advertising are not allowing attorneys to communicate the type of information that would be useful to consumers of legal services in an evaluation of potential providers.