Tuesday, November 8, 2005
Fred C. Zacharias, University of San Diego School of Law, has published "What DIrection Should Legal Advertising Take?" Here is the abstract.
This article stems from a panel discussion of what lawyers need to do to comply with legal advertising regulation. The topic highlights a "disconnect" between regulation - what we say lawyers may do - and what we, in fact, allow lawyers to do. It also highlights the degree to which current regulation of advertising is a product of history - in part, a product of blindly following old methods of conceptualizing the issues. The article suggests that, for modern advertising regulation to make sense, we need to reevaluate our whole way of looking at the subject.
Two sets of developments have occurred since the early days of legal advertising regulation. The first is that image concerns, as a justification for regulation, are no longer valid. This proposition stems not only from constitutional decisions, but also from the practical reality that regulating legal advertising no longer can have the effect of shoring up the profession's image.
The second development has to do with the specific dangers that modern advertising creates. What society deems inappropriately misleading, and the way consumers view legal advertising, has changed. As a consequence, even the valid traditional justification for advertising regulation - preventing misleading advertisement - is likely to be mis- or over-used. It continues to serve as a guise for implementing invalid "image" concerns. And it sometimes focuses on advertising that encourages litigation (e.g., "we've won many personal injury cases") for the wrong reasons - that the claims encourage clients to think their cases have merit or value, rather than for the reason that the advertising lawyer is less qualified than his communications suggest. The goal of regulating unfair competition, too, can be misused.
These developments suggest that current regulation of legal advertising continues to rely on old tools to regulate phenomena that do not necessarily correspond to the valid reasons why legal advertising might be regulated. The article therefore encourages the rule makers to identify the targets of advertising regulation more precisely and to determine precisely what they are trying to regulate and why. Greater honesty in regulation would help rule makers avoid disconnects the article identifies - between rules and their justifications and between rules and their enforcement.
By way of example, the article considers regulation of advertising on the internet. The internet presents specific issues or potential dangers that differ from the traditional concerns of advertising regulation. The article suggests that these merit direct consideration - both as to whether they should be regulated and whether restriction would be constitutional.
Download the entire paper from SSRN here.