Ad Task Force begins drafting recommendations

first_img Ad Task Force begins drafting recommendations Senior Editor With two major issues still unresolved, the Bar’s Advertising Task Force 2004 has finished going through a list of options and is ready to begin the first draft of its recommendations.Meeting by teleconference August 25, task force members finished going through 22 questions designed to allow them to reach tentative consensus about a variety of issues and show them where their disagreements lie.The group was scheduled to meet again September 9 (after this News went to press) in Tampa, during the Bar’s General Meeting.“What I expect to come out of Tampa with is something very close to [a draft report],” task force Chair Manny Morales said at the end of the August 25 meeting. “My thought is that after Tampa, we’ll have a document we can tweak a little, but we’ll be getting close to the end of the process.”He acknowledged that two very tricky issues remain unresolved. Both were discussed at the task force’s July 26 meeting without an agreement being reached.One is whether the Bar can require lawyers to submit ads for Bar review before they are published or broadcast. Current Bar rules require submission of ads that are not exempt from review under Bar Rule 4-7.8 no later than concurrently with their first broadcast or publication.The second issue is whether the ban on direct mail personal injury solicitations within 30 days of an incident should be extended to criminal cases.Morales said he expected further discussion on both of those issues. “If the answer is we don’t have a consensus on that, then we can give the [Bar] Board of Governors some options,” he said. Bar staff is drafting several options for the task force on both issues.Issues addressed at the August 25 meeting ranged from Internet advertising to lawyer referral services.One issue that generated considerable discussion was whether lawyer communications to other lawyers, family members, and former clients should be exempt from advertising rules. Task force members agreed that communications to other lawyers should not be covered, but some members dissented from the final consensus that communications to family members and former clients should also be excluded.Task force member Hal Lewis said a lawyer could build up a large client base by doing inexpensive wills, and then circumvent Bar rules in seeking personal injury work. He and others also argued that, for example, personal injury attorneys would be able to circumvent Bar rules by getting other lawyers, in exchange for a referral fee, to approach clients about potential representation.But other task force members said such regulations could inhibit lawyers in normal conversations with family and clients.“If I see where they are being mistreated, I want to be able to say, ‘Hey, you need representation,’” said task force member John Bales.The task force also extensively discussed the new Bar rule that allows nonlawyers to appear in law firm ads, but requires they be identified as spokespersons and nonlawyers. The spokesperson may not be a celebrity or someone generally recognizable to the public.Task force members said they were concerned how the rule would apply to some ads, most notably sponsorship announcements on National Public Radio ads. Ethics counsel Elizabeth Tarbert noted FCC regulations mandate that NPR personnel read the ads, and prohibit the “sponsor” from doing it.“If it’s a situation where you have one anchorperson doing. . . a series of ads and an attorney ad comes up, he or she should not have to say it [that the announcer is a nonlawyer],” Bales said. “The exception is where in the context it’s not clear the person is not an attorney.”The task force directed Bar staff to draft alternative rules on that issue.As for Internet ads, the task force generally felt current Bar rules cover what’s needed.That includes that Web sites are treated as requested information, that e-mail is subject to the same rules as regular mail, that spyware is already addressed by other Bar rules and federal regulations, and that pop-up ads are subject to the advertising rules because they appear without the request or action of the computer user. Members also said lawyers who frequent online chat rooms would be subject to the same regulations — such as on solicitation — as a lawyer at a party or other social gathering.Among other issues addressed, the task force:• Agreed with the Standing Committee on Unlicensed Practice of Law that lawyer referral services should be clearly identified as that in their ads, and that otherwise no changes are needed to lawyer referral service rules.• Disagreed with the Board of Legal Education and Specialization that lawyers should be prohibited from saying in ads that they limit their practices to certain areas. BLSE officials had argued that language implied that a lawyer specialized in certain areas, and the only lawyers who can say they specialize are those who are certified.“The reason we will win challenges to some of these rules is we are protecting the public from being misled,” said task force member Casey Ebsary. “In this case, if it’s factually true that you are limiting your practice to these areas, how is that harming the public?”• Agreed that the advertising rules should continue to treat television and radio ads differently from print ads.• Decided advertising rules shouldn’t be amended to distinguish between ads aimed at sophisticated potential clients as opposed to the general public. Morales noted that Ft. Lauderdale attorney Alan Becker said his and other Florida firms are restricted when they advertise to large corporations because they must follow Bar rules while out-of-state firms seeking the same clients are unhindered. But task force members were skeptical that a difference would be defined in the rules.“I’m sympathetic to that gentleman’s plight,” task force member Linzie Bogan said. “I don’t think it’s an ill that can be cured.”• Determined that no changes should be made in rules that distinguish between which ads must be filed for Bar review and which can run without a review, as delineated in Rule 4-7.8. September 15, 2004 Gary Blankenship Senior Editor Regular News Ad Task Force begins drafting recommendationslast_img

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