South Carolina BAR Journal
SC Lawyer, July 2011, #5.
Quality Control: In re Wells and the Regulation of Adverbs and Adjectives in Lawyer Advertising
South Carolina LawyerJuly 2011 Quality Control: In re Wells and the Regulation of Adverbs and Adjectives in Lawyer AdvertisingBy Michael Virzi The S.C. Supreme Court dealt a blow to lawyer advertising recently with the issuance of In re Wells, No. 26969 (S.C. Sup. Ct., May 9, 2011), and in so doing joined a small number of states that have disciplined lawyers for describing themselves or their practices in advertising materials. It should come as no surprise to anyone that lawyers are not allowed to claim to speak Spanish when they do not, claim to have practiced law longer than they have (or in practice areas they have no experience in), or claim to have offices in states where they do not. And it should come as no surprise to lawyers that they are not allowed to claim "expertise" or "specialization" in a practice area without holding a certification in that area. But what surprised many lawyers in the Wells opinion is that they are not allowed to use ordinary adjectives and adverbs. "Allegation E" of the Wells opinion states,
Respondent admitted in his Answer that his firm brochure characterized the quality of his firm's legal services for criminal defense clients as "tough criminal defense representation." He also admitted that his website characterized his firm's attorneys as: "highly skilled at obtaining bonds for their clients"; "dedicated attorneys who provide excellent legal advice"; "maintaining a high degree of professionalism" in real estate matters; and "intelligent," "competent," and "full service."
Whether the Wells opinion presents a new rule or merely acknowledges existing rules is debatable. Regardless, prohibiting all descriptions of quality puts South Carolina very close to an Iowa-style "facts only" advertising state, and the significance of that status-whether old or new-merits some discussion.
The discussion begins, for better or worse, with a trip back to high school English class. Adjectives describe or characterize the quality of things (e.g., "experienced lawyers," "tough defense"). Adverbs describe or characterize the quality of actions (e.g., "work efficiently," "diligently represent") or of other adverbs or adjectives (e.g., "thoroughly experienced," "work highly efficiently").
Most descriptive adjectives and some adverbs have further subcategories: positive, comparative and superlative-for example, the adjectives "good," "better" and "best," and the adverbs "early," "earlier" and "earliest." In Wells, adjectives and adverbial phrases in their positive form were found to be improper characterizations or descriptions. In a broader evaluation of advertising regulation, however, whether they are potentially misleading under Rule 7.1 and whether they imply comparisons under Rule 7.1(c) are just as important to consider.
Federal jurisprudence on the constitutional protections for lawyer advertising has evolved to a fairly consistent boundary for state regulators. Truthful advertising cannot be categorically prohibited, In re RMJ, 455 U.S. 191, 202-03 (1982), while misleading statements may be freely regulated, Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623-24 (1995). Between those bookends sit statements that are only potentially misleading-i.e., those that might imply a falsehood. That is where prohibitions against comparisons, self-laudatory statements and characterizations of quality fall: in the no-man's land of potentially misleading but not necessarily or inherently misleading (as do other categories of communication beyond the scope of this article, such as past results, testimonials and trade names). These kinds of statements may be regulated as long as the state can demonstrate a real possibility of harm, beyond mere conjecture or "rote invocation of the words 'potentially misleading.'" Mason v. Florida Bar, 208 F.3d 952, 957-58 (11th Cir. 2000)(citing Ibanez v. Fla. Dep't of Bus. and Prof. Regulation, 512 U.S. 136, 146 (1994)). The "potentially misleading" test...