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Texas lawyers who advertise their legal services on television be advised: The State Bar of Texas Advertising Review Committee soon may be tuning in. A notice that the committee will conduct sweeps of various TV markets around the state to monitor compliance with the lawyer advertising rules has been published on the Bar’s Web site. However, the notice does not state exactly when or where the monitoring will occur. “You don’t want to telegraph exactly what you’re doing,” says Larry G. Holt, a Bryan, Texas, solo who chairs the 12-member committee. “We do want them to know it’s coming.” Ray Cantu, director of the Bar’s Advertising Review Department, says this won’t be any kind of “gotcha” operation. “We want to let Texas lawyers know,” Cantu says. “We want them to comply.” The idea is to notify lawyers that the screening will be done and help them meet the requirements, he says. To further that goal, the committee plans to hire a screening service that will provide clips of lawyers’ TV advertising to the department. Cantu says the monitoring — which is expected to occur sometime this summer — will be done in large and small markets, but he declines to say which markets will be monitored. Mike Androvett, vice chairman of the committee, says he would like to do samplings in six major TV markets if the costs permit. This will be only the second time that TV ads have been checked since the advertising rules were implemented in July 1995 as a part of the Texas Disciplinary Rules of Professional Conduct. Sweeps were last conducted in 1996, Cantu says. Holt says the committee hasn’t conducted more spot checks because it has limited resources. Whether the sweeps are done by Bar personnel or a screening service, the process is costly, he says. Cantu says the Advertising Review Department has budgeted $2,000 to conduct periodic checks in various markets this year. More than 4,000 radio and TV ads have been submitted to the department for review since the rules took effect, including 597 between June 1, 2000, and April 30 of this year, Cantu says. Androvett, president of Dallas-based Androvett Legal Media, says the perception has been that only lawyers specializing in personal injury cases advertise on TV, but firms in other specialty fields are running commercials. His firm advises lawyers and other professionals on how to promote their practices. “More firms are talking about it [TV advertising] when they didn’t several years ago,” Androvett says. Holt says the upcoming checks are unlikely to turn up many lawyers who are not complying with the advertising rules. “Most lawyers in this state try very hard to comply with these rules, and most of them do,” he says. Androvett agrees, saying, “A lot of lawyers are out there complying.” But he says it’s important for the committee to conduct periodic checks of lawyers’ TV advertising to support the efforts of all the lawyers who are willingly complying with the rules. “I think we need to support and reaffirm all those lawyers who are in compliance,” Androvett says. Under the disciplinary rules, a lawyer is required to submit a TV commercial to the Advertising Review Committee for approval at least by the time the ad has been disseminated to the media. A $50 fee is charged to review an ad. If it comes to the department’s attention that an ad being broadcast has not been submitted for review, a letter is sent to the lawyer involved, Cantu says. The fee for a late filing is $200. Cantu says that having to pay four times as much for filing late provides an incentive for lawyers to submit their ads. If a lawyer refuses to submit an ad for review or consistently violates the rules, the case can be referred to the Office of Chief Disciplinary Counsel, he says. Mark Pinckard, spokesman for that office, says 41 complaints that had an allegation involving advertising rules were received last year. But records provided by Pinckard show that violations of those rules were cited in only a handful of the approximately 500 disciplinary actions against Texas lawyers in the past 12 months. None of the cases in which actions were taken appear to have involved TV advertising. The rules prohibit false or misleading statements in lawyers’ advertising — including statements that create an “unjustified expectation” about the results a law firm or lawyer can achieve. Androvett says the rules allow a law firm to mention a high-dollar verdict in its advertising but a disclaimer must be included. “They just have to have language in there that alerts the viewer that that isn’t the norm,” he says. “Just because there’s a million-dollar verdict, that doesn’t mean you’ll get a million-dollar verdict.” Androvett says the disclaimer, which can appear as a graphic, could be worded: “Results obtained depend on the facts of each case,” or “Past performance is no guarantee of future results.” The rules also prohibit lawyers from making statements in their ads that compare their services with those of another lawyer, if the comparisons cannot be measured or verified precisely. Statements like, “We will get money for you when other lawyers can’t,” aren’t allowed, according to the rules. In most instances, when advertising rules violations occur, they are technical in nature, Androvett says. “It’s not so much that you’re looking at an ad and saying, ‘Oh, my God, that person is lying,’ ” he says. It’s more likely, Androvett says, that a lawyer violates the rules by failing to address the board certification issue. A lawyer who’s not certified by the Texas Board of Legal Specialization in an area of the law advertised must note his or her lack of certification in the ad. If the board does not certify in that area of law, the rules require that the ad include such a statement. Although the “not board certified” disclaimer was repealed in the Bar’s 1998 referendum, the Texas Supreme Court threw out the referendum results in June 1999 because of election irregularities. Androvett says a law firm also may violate the rules by failing to clearly identify the city in which its principal office is located. Some violations occur because the advertising agency that the lawyer or firm has hired does not check on the rules, but it’s the lawyer’s responsibility to see that the ads comply, he says. While Holt believes that most Texas lawyers comply with the advertising rules, he says some of their ads are lacking in taste. “I’ve seen a lot … that aren’t very tasteful, but you can’t do anything about bad taste,” he says.

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