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...