Tuesday, October 13, 2009

Truth In Advertising

When a bar discipline case refers to the accused attorney as Anonymous, it's a fair bet that the charges are either dismissed or deemed too trivial for sanction. Dismissal was ordered by the South Carolina Supreme Court in a matter charging a worker's compensation attorney with false advertising. The key facts:

Respondent, who has been licensed to practice law in South Carolina since 1995, is the managing member of a law firm located in Greenville. Members of the firm primarily represent victims in personal injury and worker’s compensation cases. 

In December 2003, Respondent began airing a television advertisement to promote his legal services to potential clients who suffered on-the-job injuries.  Respondent appeared in the advertisement and recited the following:

It’s not your fault you were hurt on the job, but I know you’re afraid to file a job injury claim.  You’re afraid your boss won’t believe you’re really hurt - or worse, that you’ll be fired.  We’ll protect you against these threats - these accusations - and work to protect your job.  I’m not an actor, I’m a lawyer.  I’m [Anonymous].  Call me and we’ll get you the benefits you deserve.  The [Law] Firm.    

On September 20, 2006, an "anonymous member" of the South Carolina Bar filed a complaint against Respondent with the ODC regarding the "Job Injury" advertisement.  The Complainant contended the advertisement was misleading in that it created the false impression that by retaining Respondent an injured employee would not lose his or her job by filing a worker’s compensation claim. 

The court agreed with a hearing panel that the charges had not been proven:

At the outset, there is no evidence that any member of the public was misled when Respondent aired his television advertisement.  Moreover, we find the results of the Market Search study [offered as evidence by disciplinary counsel] are suspect and do not definitively establish that the advertisement was misleading. 

The sample group was smaller than normally used for such a study and, in turn, may not have been statistically reliable.  The study had a 20% margin of error.  The participants were shown a total of five attorney advertisements, of which two were produced by Respondent.  This undoubtedly focused the participants’ attention more keenly on the Respondent’s advertisements.  Respondent’s advertisement was the only one of the five that referenced anything regarding a client’s job.  The questionnaires were also worded in a way that elicited the desired response from participants. 

In the absence of any reliable data that the advertisement was misleading, the determination of this issue requires an analysis of the text of the advertisement in conjunction with Rules 7.1(a) and 7.1(b), RPC, and the related Comments.  See Zauderer, 471 U.S. at 652 (noting that a State need not "conduct a survey of the . . . public before it [may] determine that the [advertisement] had a tendency to mislead" when "the possibility of deception" is self-evident (citation omitted)).

We find the text of the advertisement does not:  (1) contain a "material misrepresentation," or (2) operate to "create an unjustified expectation" about the results Respondent could achieve for an injured worker. 

In discussing the advertisement, Respondent testified he was truthful in his representation that he would "work to protect" an injured client’s job if a worker’s compensation claim was filed.  This broad statement did not imply that Respondent could guarantee or ensure that a client would not lose his job.  Instead, it was merely a statement of Respondent’s role as an advocate on behalf of a client.  Within this advocacy role, Respondent appeared to convey that he would use whatever means, including statutory remedies, which were available to guard against a client’s loss of employment.  Accordingly, we hold the ODC failed to prove by clear and convincing evidence that Respondent’s advertisement violated either Rule 7.1(a) or Rule 7.1(b). 

(Mike Frisch)


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