What Went Wrong on the World Wide Web: The Crossroads of Emerging Internet Technologies and Attorney Advertising in Louisiana

• Author: Graham H. Ryan
• Pages: 749-786

What Went Wrong on the World Wide Web: The

Crossroads of Emerging Internet Technologies and

Attorney Advertising in Louisiana

―If commercial advertisers are First Amendment step-children,

lawyers come closer to abandoned orphans.‖

1

INTRODUCTION

Since the late 1970s, courtrooms have served as a battlefield

for a war waged over self-regulated attorney advertising.

2

On the

front line are attorney advertisers and public interest organizations,

shouting battle cries for unhindered promotion of legal services

and armed with dated, yet durable, First Amendment claims.

3

Defending their posts are state bar associations, bearing little more

than the regulatory tradition of a dignified profession so vital to its

future.

4

As with many wars, technological development brings

both opportunities and challenges, which if not properly harnessed

can result in either chaos or unwarranted suppression.

5

Copyright 2011, by GRAHAM H. RYAN.

1

. Rodney A. Smolla, The P uffery of Lawyers, 36 U. RICH. L. REV. 1, 2

(2002).

2

. See Fla. Bar v. Went for It, Inc., 515 U.S. 618 (1995) (upholding a 30-

day ban on mailed solicitations to accident victims); Shapero v. Ky. Bar Ass‘n,

486 U.S. 466 (1988) (holding that truthful and nondeceptive mail targeted to

individuals with specific needs could not be prohibited); In re R.M.J., 455 U.S.

191 (1982 ) (holding that states may not impose absol ute prohibitions on

potentially misleading infor mation if such information may also be presented in

a way that is not deceptive); Ohralik v. Ohio State Bar Ass‘n, 436 U.S. 447

(1978) (holding that in-person solicitation for pecuniary gain is subject to

regulation); In re Primus, 436 U.S. 412 (1978) (holding that solicitation for

social cause and no pecuniary gain is permissible); Bates v. State Bar of Ariz.,

433 U.S. 350 (1977) (hold ing that commercial speech is entitled to First

Amendment protection).

3

. See, e.g., Brian Wolfman, Proposed Rules on Lawyer Advertising in

Louisiana Are Unconstitutiona l, PUB. CITIZEN (June 6, 2007), http://www.

citizen.org/pressroom/release.cfm?ID=2452 (arguing that the ―[ p]roposed

Louisiana rules on lawyer advertising and solicitation are unconstitutional

restrictions on free speech under the First Amendment and would harm many

consumers of legal services‖).

4

. See Went for It, 515 U.S. at 639 (discussing the Court‘s i nterest in

―protecting the r eputation and dignity of the legal profession‖); Bates, 433 U.S.

at 368 (recognizing and ―co mmend[ing] the spirit of public service with which

the profession of law is practiced and to which it is dedicated‖).

5

. See genera lly MARTIN L. VAN CREVELD, TECHNOLOGY AND WAR:

FROM 2000 B.C. TO THE PRESENT (1991) (considering the influence of

technology over the past 4,000 years on military organization, weaponry,

logistics, intelligence, communications, transportation, and command).

750 LOUISIANA LAW REVIEW [Vol. 71

The technological newcomer in this war is the Internet.

Emerging technologies presented by this medium have forever

changed the face of advertising.

6

The distinct nature of these

advertising means evades traditional classification and leaves

many states scrambling to address attorney use. Often times, as

illustrated by Louisiana‘s failed attempt to regulate attorney

Internet advertising, this haste results in the adoption of short-

sighted rules that fail to recognize their own catalyst.

7

Louisiana‘s

recent mishandling of this regulation sheds light upon the necessity

for states to assert a substantial interest in such regulation and to

narrowly tailor regulatory language.

8

As a result, Louisiana‘s

treatment will likely be viewed as a quintessential misstep in the

realm of attorney Internet advertising regulation as states across

the nation begin to address this emerging issue.

9

This Comment argues that overly broad regulations that subject

all attorney Internet advertisements to the exacting content

requirements governing traditional media, such as the regulations

in Louisiana and Florida, create constitutional and practical

shortcomings.

10

Rather than categorically regulating attorney

Internet advertising, states should draft rules considerate of both

consumer and commercial speech protection, which specifically

address the functionality underlying the most prevalent forms of

Internet advertising, such as pay-per-click advertising.

11

As state bar associations jostle to regulate a forthcoming

generation of technically erudite attorneys, the need to address

attorney advertising on the Internet in a clear and sufficient manner

has never been more urgent. The onset of Internet technologies

presents a single, yet crucial, battle in the larger scope of

6

. See DAVID W. SCHUMANN & ESTHER THORSON, INTERNET

ADVERTISING: THEORY AND RESEARCH 3 (2007) (―We know now that the way

people consume, interact, share, view, and communicate with information,

entertainment, and eac h other has changed forever.‖ (quoting Christopher M.

Schroeder, The Media World Will Never, Ever, Be the Same, MEDIAPOST (Sept.

22, 2005 , 6:00 AM), http://www.mediapost.com/publications/index.cfm?fa=

Articles.showArticle&art_aid=34325) (internal quotation marks omitted)).

7

. See discussion infra Part III.B.1.c.

8

. Email from Scott G. Wolfe, Jr. to the Bureau of Nat‘l Affairs (2009) ,

availa ble at http://www.abanet.org/cpr/la-ad.pdf (―[This] decision [in P ub.

Citizen, Inc. v. La. Attorney Disciplina ry Bd., 642 F. Supp. 2d 539 (E.D. La.

2009)] underlines that t he state has a burden to justify regulations, and narrowly

tailor them . . . and i n the case of the Internet, they must specifically co nsider

that medium in formulating a justification and in properly tailoring the rule.‖).

9

. Id. (characterizing the ruling in Public Citizen as ―quite c onsequential

for attorneys in other states who want to challenge their state‘s restriction o n

Internet advertising‖).

10

. See discussion infra Part IV.

11

. See discussion infra Part V.

2011] COMMENT 751

competing perspectives—one that is likely determinative of a

regulatory stronghold for decades to come. Part I of this Comment

provides a brief history of attorney advertising regulation spanning

back to the late 1970s. Part II explores emerging advertising

technologies on the Internet, focusing on their functionality and

inherent distinction from traditional advertising media. Part III

examines current regulatory schemes as they apply to these

prevailing technologies, and Part IV sheds light on their

constitutional and practical shortcomings. Finally, Part V draws

inferences from the shortcomings in these rules and proposes

necessary action.

I. A BRIEF HISTORY OF ATTORNEY ADVERTISING REGULATION

The United States Supreme Court first recognized the

protection of commercial speech under the First Amendment in

1976

12

and in doing so sparked a flurry of activity relating to its

application to attorney advertising. The Court specifically applied

First Amendment protection to attorney advertising a year later in

Bates v. State Bar of Arizona,

13

in which the Court ruled that states

could regulate false, deceptive, or misleading lawyer

advertisements, but that these advertisements ―may not be subject

to blanket suppression,‖ as this would inhibit the free flow of

information.

14

In Bates, the Supreme Court of Arizona imposed

disciplinary sanctions on two attorneys who violated a rule

prohibiting attorney advertising.

15

The Arizona State Bar justified

this rule by purporting that legal advertisements adversely affect

professionalism, are inherently misleading, increase litigation and

the cost of legal services, encourage shoddy work, and are difficult

to monitor for abuse.

16

The United States Supreme Court

concluded that truthful advertisements, such as those put forth by

the appellants, are worthy of First Amendment protection,

17

but

12

. Va. State Bd. of Pharmacy v. Va. Citizens Consu mer Council, 425 U.S.

748 (1976).

13

. 433 U.S. 350 (1977). The Bates Court was concerned that la wyer

advertising might not provide consumers with all relevant information needed to

make an informed decision about counsel but noted that the prohibition of

advertising ―serves only to restrict the information that flo ws to consumers.‖ Id.

at 374.

14

. Id. at 383.

15

. Id. at 359.

16

. Id. at 368–79.

17

. Id. at 386.