2017-03-10 / On Second Thought

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More attorneys seem to be advertising on television these days. Please tell me more about the trend.
Compiled by Warren Hughes

Until the late 1970s, most states prohibited lawyers from advertising. The rules of professional conduct barred attorneys from engaging in virtually any form of commercial publicity. That changed in 1977 with the U.S Supreme Court case of Bates v. Arizona granting attorneys the right to advertise.

As a result, since then legal advertising has increased year after year. In fact, legal advertising on television grew from $531 million in 2008 to $892 million in 2015, an increase of 68 percent. That is a rate six times faster than advertising by other industries, where television commercial ad spending has stagnated in recent years, except for major spenders like pharmaceutical companies.

For more specific information on South Carolina, The Columbia Star turned to Attorney Michael J. Virzi, an expert on the subject of legal ethics and practice. He is a Columbia attorney, a USC law professor and a member of the South Carolina Bar’s Professional Responsibility and Ethics Advisory Committees. In his private practice, Virzi specializes in the area of lawyer ethics, defending attorneys in disciplinary proceedings and advising them about the rules of professional conduct, including reviewing their advertising materials for compliance. Previously, Virzi served in the State Supreme Court's Office of Disciplinary Counsel, where he investigated and prosecuted attorneys for ethical misconduct.

Attorneys have been advertising for decades in South Carolina, Virzi says, noting the practice has grown in recent years, because such ads have proven to be effective.

“At least for some particular areas of the law, like criminal defense, worker's compensation, and personal injury, television advertising is very effective at reaching consumers to inform them of how lawyers can help and, in some cases, of the availability of lawyers for free initial consultations,” he said.

In South Carolina, like many states, the state Supreme Court regulates lawyer advertising and in fact all lawyer conduct, Virzi noted. The court both creates the rules of professional conduct, which includes advertising rules, and also enforces the rules through its office of disciplinary counsel and commission on lawyer conduct.

“Lawyer advertising has steadily grown since the 1970s, but the advent of the internet made it ubiquitous,” he observed. “I don’t believe the trend is any different in South Carolina than in other states. Today, nearly all lawyers advertise at least through a website, office signage, traditional legal directories like the Bar Directory or Martindale Hubbell, and most also do so through other online business directories and social media like Linked In, Google Plus, Facebook, et cetera.”

However, he explained, those forms of advertising aren’t as noticeable to consumers who don’t go looking for them.

“Radio, television, and billboard advertising is more obvious to the public generally and has also steadily grown over the past several decades.”

He also described the benefit to consumers of such advertising. “The positive effect of lawyer advertising is it informs the public of the availability of lawyers in various aspects of their lives, how lawyers can help them, and often which lawyer a person might need since an individual lawyer won’t practice in all areas of the law.

The opening language of the advertising rule specifically promotes this purpose, he said. It requires lawyer advertising to predominantly contain factual information rationally related to the need for and selection of a lawyer.

For example, such language can include a lawyer touting her experience in estate planning and warning against failing to have a will or power of attorney in place, or another explaining how lawyers can level the playing field for criminal defendants negotiating with a prosecutor or accident victims negotiating with an insurance company, he said.

Advertising regulations are primarily aimed at preventing lawyers from misleading the public, he emphasized. For example, he said, consumers will notice when an advertisement includes a client testimonial regarding a specific settlement amount, the ad will or should include a disclaimer along the lines of “results may vary” or “similar results not guaranteed.”

The rules of professional conduct require this disclaimer because past results might otherwise mislead viewers by implying they can achieve the same result. That would be misleading because every case is different. Lawyers are also not allowed to compare themselves to other lawyers except in ways that can be factually proven.

Another example would be a law firm advertising offices in many cities and towns throughout the state. If any of those offices are merely satellite offices not regularly staffed with a lawyer, the advertisement must disclose that files are principally handled elsewhere. This protects local consumers from being misled to believe they would be hiring a local attorney.

Without the required disclosure, the ad might be technically factual but still potentially misleading. Virzi says he does not know of other profession’s advertising being as strictly regulated as that of the legal profession.

For more information, Virzi may be reached at ph. 803-404-0429, website mjv@virzilaw.com.

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