SC Lawyer, March 2005, #2. McDonald's and lawyer advertising.

• Author: By John Freeman

South Carolina Lawyer

Ethics Columns.

SC Lawyer, March 2005, #2.

McDonald's and lawyer advertising

South Carolina LawyerMarch 2005Ethics Watch McDonald's and lawyer advertisingBy John FreemanMany practicing lawyers have found themselves figuratively scalded by jibes stemming from the notorious McDonald's coffee cup spill case. You know the legend: a woman canny enough to hire a slick lawyer was rewarded with an outlandish seven-figure pay-out from the rich, successful fast-food company after clumsily spilling coffee on herself. That the true facts actually are different and disturbing is a minor detail that has gotten lost in the tort reform shuffle. For a report, see Symposium, Justice and Democracy Forum: The Law and Politics of Tort Reform, 4 Nev. L.J. 377, 419 (2003) (remarks of Professor Rob Correales).

Lawyers beware: McDonald's sales activity is back in the news, offering more ammunition to lawyer-bashers. On January 25, 2005, a unanimous Second Circuit panel reinstated a New York consumer protection class action attacking McDonald's nutritional advertising. Pelman v. McDonald's Corp., 2005 WL 147142 (2nd Cir. 2005). Among other things McDonald's was attacked for allegedly claiming to promote a healthful lifestyle and nutritionally beneficial products while concealing its use of additives and food processing procedures that were substantially less healthful than represented. Plaintiffs alleged that as a consequence of McDonald's misconduct, class members have developed "obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects." Jay Leno, et al., are undoubtedly very pleased with the ruling.

The latest McDonald's case teaches valuable lessons: deceptive advertising is anti-social, it is not protected by the First Amendment and it is actionable. There has been a sea change in the way lawyers present themselves to the public over the nearly three decades following the Supreme Court's ruling in Bates v. State Bar of Arizona, 433 U.S. 350, 381 (1977). In the pre-Bates era, lawyers were barred from disclosing truthful information that would offer benefits to consumers. For example, a lawyer in Rock Hill who was admitted to practice in both North and South Carolina (a fact some prospective clients would desire to know) was barred from listing his North Carolina bar membership on his South Carolina-based firm's letterhead or business cards, much less in his yellow pages listing.

Those days are over.

Today, we are confronted with legal advertising behavior that has gone too far in the opposite direction. For years trial lawyers have battled against insurers featuring catchy come-on slogans, such as "You're in good hands with Allstate" and "Nationwide, we're on your side." Over time, lawyers learned that marketing success can involve changing your service offering from a commodity that people may buy into a brand name that people find appealing and seek out.In one sense, brand name appeal has always been part of law practice. There have always been some lawyers and firms well known for consistently supplying an excellent product. These days, however, having a strong reputation and furnishing clients with caring, effective service is no guarantee of success. A new wave of advertisers gradually entered the legal advertising marketplace in the post-Bates era, changing the game substantially.

USC Law School Professor Emeritus Charlie Randall was fond of repeating that "everything, extended out far enough, bumps into something else." So it is with lawyer advertising. Today's lawyer advertising marketplace features players never contemplated when the Bates case ushered in relaxed advertising standards. This new set of advertisers has chosen aggressively to exploit the tendency of people to believe what they are told via the media.

Lawyer nickname advertising connoting skill and prowess has become regular daytime TV fare in South Carolina. Without mentioning names or nicknames, it suffices to state that many lawyers believe the lawyer advertising pendulum has swung too far in the direction of "anything goes." Free speech rights have, at least arguably, paved the way for consumer deception.

Concern over deceptive lawyer advertising has been manifested twice recently in South Carolina. First, out-of-state lawyers seeking pro hac vice admission to pursue Graniteville train wreck claims have been ordered to submit with their pro hac vice applications copies of any advertisements they used to pick up cases. Honest advertisers, those who bothered to review and comply with the South Carolina Supreme Court's advertising rules, have nothing to fear. Their demonstrated advertising behavior will show them to be honest and ethical. Other out-of-state lawyer advertisers have something to worry about. Those who used nonconforming ads to round up clients will presumably have a harder time persuading the court that they are ethically fit to practice in South Carolina. This is as it should be.

The second example of recent judicial scrutiny comes in the form of Supreme Court review of proposed changes in the advertising rules. One of the proposals under consideration would add to the deception prohibitions of Rule 7.1 a new subsection (e) banning advertising "that contains a nickname, moniker or trade name that implies an ability to obtain results in a matter." The explanatory comment states in part: "Paragraph (e) precludes the use of nicknames, such as the 'Heavy Hitter' or 'The Strong Arm' that suggest the lawyer or law firm has an ability to obtain favorable results for a client in any matter. A significant possibility exists that such nicknames will be used to mislead the public as the results that can be obtained or create an unsubstantiated comparison with the services provided by other lawyers."

This proposed change in Rule 7.1 was published for comment in October, and a hearing was held on the proposal and other recommended changes on January 19, 2005. At the January 19 hearing the Court received comment about the nickname advertising proposal from several attendees, including a proponent of the status quo who is a nickname lawyer.

Too much caloric intake leads to obesity. Too much advertising liberality invites consumer deception. Over the years our courts have played a leading role in fashioning and enforcing consumer protection safeguards. So it was in the recent McDonald's advertising opinion and in the recent pro hac vice order stemming from the Graniteville tragedy. Lawyers familiar with the South Carolina Supreme Court's ethics rulings know those decisions reflect a keen concern for protecting public confidence in lawyers and our judicial system. Our Supreme Court has demonstrated time and again that law clients throughout South Carolina are entitled to honest and accurate information from the lawyers with whom they deal. This track record makes the Court's adoption of new Rule 7.1(e) highly likely.