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staff reporter The Kentucky bar is about to impose new regulations on attorney advertising, sparking First Amendment protests from some members. Since the Supreme Court ruled in 1977 that outright bans on lawyer advertising are unconstitutional, every state has grappled with what lawyers may say about themselves. The high court allows restraint on ads that are false, deceptive or misleading. Bates v. State Bar of Arizona, 433 U.S. 350 (1977). The proposed regulations “attempt to implement the Kentucky Supreme Court’s rules by defining ‘false, misleading and deceptive,’ ” said Benjamin Cowgill, chief counsel for the Kentucky Bar Association. One regulation, for example, says that if an ad speaks to monetary recovery it “must include an appropriate explanation of the legal requirements” to win and must say “that recovery may be dependent on the ability to collect from the responsible party.” The real dispute The dispute, however, is not just about what kinds of commercial speech can be proscribed under the First Amendment. The real flap is about an 11-year-old rule that some attorneys say amounts to an illegal prior restraint of commercial speech. Since 1992, the Kentucky Supreme Court has required lawyers to submit certain kinds of advertising for pre-approval to the bar’s Attorney Advertising Commission. “That’s prior restraint,” said Lucian Pera, an attorney who represents Louisville, Ky.’s Becker Law Office. “And that’s unconstitutional.” During a public comment period that will end on June 1, Pera, of Armstrong Allen in Memphis, Tenn., and Jon Fleischaker of Louisville’s Dinsmore and Shohl, submitted a position paper to the bar’s commission and its Board of Governors, which lays out Becker’s objections. The rules make Kentucky “the only state in the country that requires a lawyer to get approval from a state agency before running an ad,” said Pera. Cowgill said that the rules “mandate that an ad be submitted but do not prohibit a lawyer from running an ad that has been disapproved. It is not prior restraint.” Running an unapproved ad “doesn’t automatically subject someone to discipline,” although the disciplinary committee could consider that fact. “The only circumstances that will subject someone to discipline is an intentional violation of the procedure for filing an ad with the commission, or running a false, misleading or deceptive ad,” Cowgill said. And “there is a whole class of ads of what might be called plain-vanilla content that do not require submission at all.” Arthur D. Hellman, distinguished faculty scholar at the University of Pittsburgh School of Law, and co-author of a First Amendment casebook, said, “The Supreme Court has indicated that it is likely that the doctrine of prior restraint does not apply in full force to commercial speech. “Members of the court have suggested that there are two kinds of regulations, one of which is consumer protection, which is reviewed by a relatively deferential standard, meaning that the court will not demand quite as tight a fit between the ends and the means.” Cowgill said the regulations have been promulgated “so that lawyers are not out there operating at their own peril. We’re the only state that has a mechanism that helps lawyers in advance.” The regulations would prohibit such things as an appearance in an ad by a nonlawyer that suggests that person is a lawyer or “by an actor that suggests or implies that he or she is an actual client.” Most testimonials would be out, along with any ad that refers “to particular matters or results” in past cases even if the ad is accurate in every detail. “I think the rules on testimonials may overstep the bounds,” said Hellman. In contrast to proposed Kentucky regulations, the American Bar Association’s model rule is concise: “A lawyer shall not make a false or misleading communication” or overreach. Cowgill said that lawyers need more guidance than that. “We don’t want to create unjustified expectations for the public,” he said. “The reason, for example, that dollar amounts are prohibited is that the idea behind these type of ads is to suggest to the public that if they hire X law firm they can get that same kind of money, that same result, and it’s just not true. Lawsuits are not like that. You can’t extrapolate and you can’t mislead the public into thinking that you can.” To build its personal injury practice, Becker uses an ad with actor Robert Vaughn that dramatizes the fear that the firm supposedly strikes in the hearts of claims adjusters. “Vaughn makes no claim that Vaughn is Becker or that Becker has ever represented him, or even that he would go to the Becker firm if he needed a lawyer,” said Rick Heideman, vice president of Market Masters-Legal, the Massachusetts firm that produced the ad. The Vaughn ad, he said, is used in 50 or so television markets, “customized and personalized” for each advertiser. Becker’s fear is that its Vaughn ad will be banned when the regulations take effect on Sept. 1. They are still subject to modification by the commission. “We don’t ban anything,” said Cowgill. “And the advertising commission has never disapproved any of the ads Mr. Becker’s running now as being deceptive because of the use of Robert Vaughn. The regulations won’t change that.” A Vaughn ad similar to Becker’s that ran in Greensboro, N.C., was deemed “misleading and created unjustified expectations” in a federal suit in 2001. Farrin v. Thigpen, 173 F. Supp. 2d 427 (M.D.N.C.). Post’s e-mail address is [email protected].

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