On May 6, 2021, the Louisiana Supreme Court issued an order revising the Louisiana Rules of Professional Conduct provisions governing lawyer advertising. The court’s revisions become effective on January 1, 2022. Here is a summary of the major changes to come:
- The most significant amendments require that lawyer advertisements must display a “filing number” issued by the Louisiana State Bar Association. Amended Rule 7.2(a)(1) requires that any lawyer named in an advertisement certify that the advertisement was filed and assigned such a filing number. Amended Rule 7.2(a)(3) requires that all advertisements and unsolicited written communications, except those subject to the exemptions stated in Rule 7.8, must include a filing number assigned by the Louisiana State Bar Association. Amended Rule 7.4(b)(2)(B)(iii) requires that unsolicited written communications to prospective clients for the purpose of obtaining professional employment must clearly state the Lawyer Advertising Filing Number assigned by the Louisiana Bar Association.
- Rule 7.2(c)(4) has always provided that a lawyer must not suggest that any communication received approval from the Louisiana State Bar Association. The court’s new revision clarifies that the use of a filing number assigned by the LSBA does not reflect approval from the Association.
- Rule 7.2(c)(1)(D) has always prohibited “false, misleading or deceptive” communications. Under the amended rule, a communication may not contain a reference to past results without a disclaimer such as “Results May Vary” or “Past Results are not a Guarantee of Future Successes.”
- Amended Rule 7.2(c)(1)(J) prohibits the use of any nonlawyer spokesperson in an advertisement, even with a disclaimer, something the current rule permits.
- Amended Rule 7.6(a) clarifies that “computer-accessed communications” includes information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer, namely: Internet presences such as home pages or World Wide Websites and unsolicited electronic mail communications.
First Amendment Problem?
The court’s new requirement that lawyers submit advertisements to the LSBA prior to publication in order to get a “filing number” may be an impermissible prior restraint on commercial speech that violates the First Amendment. The current advertising rule presents no “prior restraint” issue because it permits Louisiana lawyers to file with the LSBA “concurrently with the lawyer’s first dissemination of the advertisement.” See La. Rules of Prof’l Conduct r. 7.7(b). See, e.g., Mezrano v. Alabama State Bar, 434 So. 2d 732, 735 (Ala. 1983) (holding that requiring submission of advertisements “shortly after” first publication was not a “prior restraint” on speech). In contrast, the new rule mandates filing before the speech can occur, a requirement that raises constitutional concerns.