Personal Injury Attorney Advertising — Yuk!, But Constitution Protects It.

I hate attorney advertising, especially personal injury lawyer advertising. Yet I advertise. Well, I mean, my firm does. I remember when we finally decided to advertise on TV. It was a tough decision. For years Michaels & Smolak prided itself on its success in attracting top personal injury and medical malpractice cases through word of mouth and through referrals from other attorneys who knew that we were among the best in the New York personal injury and medical malpractice field.

But our case load had started to dwindle even though we were still at the top of our game. Why? Because other Central New York accident lawyers were advertising and we were not. They were getting the cases simply by being on TV! For the most part, their ads were in terrible taste (examples: an attorney who called himself “The Hammer” and a firm that called itself “The Heavy Hitters” and one who claimed he was “a son of a bitch”, but if you hired him he would be “YOUR son of a bitch!”).

All this advertising, though totally tasteless, and even deceptive, was legal because decades ago the U.S. Supreme Court had ruled that attorney advertising fell under the protection of the “free speech” clause of the First Amendment to the United States Constitution. In other words, those guys had a right to say all this crap in their ads, even though it created a terrible image for personal injury lawyers.

Well, we at Michaels & Smolak are not used to rolling over and letting our opponents beat us. So we fought back. We went on TV with some ads of our own. Only ours were simple, dignified and straight-shooting. No “tough guy” monikers. No screaming at the camera. No silly jokes. You can watch a clip of one our ads by clicking the image at the bottom of this blog.

Then in January 2007 the New York State Office of Court Administration, which is responsible for attorney regulation and discipline in New York State, amended the Code of Professional Responsibility by adding some new rules prohibiting some of the most tasteless and deceptive practices. For example, they barred the use of monikers such as “Heavy Hitters” or “the Hammer” that suggested the lawyer would get great results. They barred other attention-grabbing techniques, too, as well as testimonials from clients about pending matters, and fake portrayals of judges or law firms.

One of the big advertising law firms, though, challenged those rules in Federal Court, alleging that the new rules violated the firm’s First Amendment rights. The Federal Court in Syracuse agreed and struck down most of the new rules as unconstitutional. Just the other day, the Second Circuit Court of Appeals affirmed that Decision, in large part, in the case of Alexander v Cahill

So what this means is that if I want to advertize on TV as “Mike the Machete Bersani” and appear, bare-chested, wielding a machete in a Court Room, well …. I can. But don’t hold your breath . . . .

 

 

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