On March 14, 2022, Senator Barrow Peacock introduced SB 383. That bill seeks to provide the standard under which communications in lawyer advertisements may be regulated. The bill includes the following regulations:
The proposed law provides that any advertisement for legal services, in any format, that contains a reference to a monetary settlement agreement or an award by a jury verdict previously obtained by the advertising attorney shall, in the same advertisement, disclose a full accounting of all expenses associated with such settlement agreement or award by jury verdict. The proposed law also adds an additional requirement that any advertisement for legal services containing a reference or testimonial to past successes or results obtained be presented in a truthful, nondeceptive manner by including a disclaimer such as “Results May Vary” or “Past Results are not a Guarantee of Future Success”.
The proposed law requires that disclosure of all expenses associated with the settlement or jury verdict be in a font size no smaller than half of the largest font size used in the advertisement. Additionally, the law adds that any advertisement for legal services or any unsolicited written communication, in any format, that includes the portrayal of a client by a nonclient or the depiction of any event or scene or picture that is not actual or authentic shall include a disclaimer.
Finally, the proposed law provides that the Louisiana Supreme Court may adopt rules as necessary to implement and enforce the provisions of this section of the law.
This bill is yet another attempt by Senator Peacock to restrict lawyer advertising. His effort last year failed due to a veto by Governor John Bell Edwards. The current bill is likewise problematic for at least three reasons.
First, the bill may run afoul of the Louisiana constitution’s principle of separation of powers. The Louisiana Supreme Court–not the legislature–has the “exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship.” Succession of Wallace, 574 So. 2d 348, 350 (La. 1991). A legislative act purporting to regulate lawyers has a “commendatory effect only” unless the Louisiana Supreme Court approves the regulation “in aid of its inherent judicial power.” Wallace, 574 So. 2d at 350. This obvious problem was one of the reasons Governor Edwards vetoed last year’s bill. To the extent this bill would regulate lawyer advertising outside of the Louisiana Rules of Professional Conduct, it would be an unconstitutional encroachment by the legislature on the supreme court’s lawyer regulatory authority.
Second, the proposed regulations are redundant. The Louisiana Supreme Court already heavily regulates lawyer advertising through the Louisiana Rules of Professional Conduct. Those rules contain many—if not all—of the regulations Senator Peacock’s bill proposes. Most importantly, the rules flatly prohibit false or misleading advertisements, which is the principal harm that Senator Peacock’s bill seeks to address. See La. Rules of Prof’l Conduct, r. 7.2(c)(1)(B). As Governor Edwards correctly determined last year, the codification of duplicative rules regulating lawyer advertising is simply unnecessary.
Third and finally, the proposed legislation is pure theatre given that it has no substantive effect whatsoever. Indeed, the bill merely suggests that the Louisiana Supreme Court take action and “adopt rules as necessary to implement and enforce” the proposed law.
For these reasons, the Louisiana Legislature should not adopt SB 383.