Louisiana lawyers who advertise have long faced scrutiny from the Louisiana legislature, the Louisiana Supreme Court, the Office of Disciplinary Counsel, and the Louisiana State Bar Association. But this year was particularly painful for Louisiana lawyers who advertise.
First, on January 1, 2021, an act regulating Louisiana lawyer advertising became law. See La. Rev. Stat. Section 37:223. The new law provides that any lawyer advertisement that includes the monetary amount of a settlement or judgment must disclose the fees paid to the lawyer from the gross amount recovered. Then, on May 6, 2021, the Louisiana Supreme Court issued an order revising the Louisiana Rules of Professional Conduct provisions governing lawyer advertising. See Louisiana Supreme Court Order (dated May 6, 2021). The court’s revisions become effective on January 1, 2022. We previously covered the new legislation and the amendments to the rules on our blog. Finally, on October 5, 2021, the Louisiana Supreme Court publicly disciplined two Louisiana lawyers for failing to pre-file their advertisements with the Louisiana State Bar Association prior to publishing the advertisements. See In re Eugene P. Redmann, No. 2021-B-00955 (Oct. 5. 2021); In re John W. Redmann, No. 2021-B-01060 (Oct. 5. 2021).
The Louisiana Supreme Court’s imposition of discipline in the Redmann cases was unprecedented. In 2008, the Louisiana Supreme Court adopted the most complex and indecipherable advertising rules in the country. Generally, these rules require that lawyers pre-file their advertisements with the LSBA prior to or concurrent with the publication. See La. Rules of Prof’l Conduct, r. 7.7(c). However, until October of 2021, lawyers who failed to pre-file their advertisements in accordance with the rules had not faced public discipline consequences. Now, public discipline for lawyers who fail to pre-file their advertisements appears to be the new normal.
Louisiana Rules of Professional Conduct Regarding Lawyer Advertising
Under Louisiana Rule of Professional Conduct 7.1(a), a lawyer may advertise services through public media, including but not limited to: print media, such as a telephone directory, legal directory, newspaper or other periodical; outdoor advertising, such as billboards and other signs; radio, television, and computer-accessed communications; recorded messages the public may access by dialing a telephone number; and written communication in accordance with Rule 7.4.” La. Rules of Prof’l Conduct, r. 7.1. Such advertisements may not contain material misrepresentations of fact or law, see La. Rule of Prof’l Conduct, r. 7.2(c)(1)(A), and must not be false, misleading, or deceptive. See La. Rule of Prof’l Conduct, r. 7.2(c)(1)(B).
Any lawyer who advertises services through any public media or through unsolicited written communications sent in compliance with Rule 7.4 or 7.6(c) must file a copy of each such advertisement or unsolicited written communication with the Louisiana State Bar Association for evaluation of compliance with these Rules. See La. Rules of Prof’l Conduct, r. 7.7(c). The copy shall be filed either prior to or concurrently with the lawyer’s first dissemination of the advertisement or unsolicited written communication and shall be accompanied by the information and fee specified in the rules. See id.
The Rules do provide several exemptions to the requirement that lawyers pre-file their advertisements with the LSBA. For example, if an advertisement or communication is limited to certain specified information, Rule 7.2 exempts the communication from the filing and review requirements. See La. Rule of Prof’l Conduct, r. 7.2(b). As another example, Rule 7.8 contains several exemptions to the general rule that advertisements must be pre-filed with the Louisiana State Bar Association. See La. Rules of Prof’l Conduct, r. 7.8. These exemptions include any advertisement or unsolicited written communication that contains only content that is required by Rule 7.2(a) and content that is permissible under Rule 7.2(b). See id. Other examples of Rule 7.8 exemptions are “a listing or entry in a law list or bar publication” and gift and promotional items. See La. Rules of Prof’l Conduct, r. 7.8(c) and (h). Additionally, the rules exempt computer-accessed communications, such as social media advertisments and websites, as described in subdivision (b) of Rule 7.6 from pre-filing. See La. Rules of Prof’l Conduct, r. 7.8(g); see also id., r. 7.6.
Must a lawyer pre-file “Super Lawyer” Advertisements?
Probably, but there is conflicting authority on whether a Louisiana lawyer must pre-file such advertisement with the LSBA. The Rules of Professional Conduct do not provide a definition of the term “advertisement.” However, a communication “created with the purpose of attracting the public or some segment of the public to the attention of a business” is classified as an “advertisement” for purposes of Louisiana lawyer disciplinary actions. See In re Palmintier, Docket No. 20-DB-054 at 6-7 (July 12, 2021) (Hearing Committee Report). This is true whether the communication constitutes a “profile,” for such as a publication as a SuperLawyer, or a traditional “advertisement.” Id. A lawyer violates the Louisiana Rules of Professional Conduct when a non-exempt “profile” or an “advertisement” is distributed to the general public without having previously been reviewed and approved by the Louisiana State Bar Association. See id. at 7; see also La. Rules of Prof’l Conduct, r. 7.7(c).
In In re Palmintier, Hearing Committee # 26 recommended that the Louisiana Supreme Court publicly reprimand respondent Michael C. Palmintier for failing to pre-file with the LSBA a published advertisement in Super Lawyers Magazine. Docket No. 20-DB-054 at 2 (July 12, 2021). Mr. Palmintier did not pre-file the advertisement for review by the LSBA. Nor did he pay the LSBA the required filing fee. Id. The Hearing Committee concluded that Mr. Palmintier violated Rule 7.7(c) by placing the non-exempt communication—whether it be classified as a “profile” or an “advertisement”—for distribution to the general public without pre-filing and participating in the LSBA vetting process. Id.
However, the hearing committee in In re Belanger reached a different conclusion. See In re Belanger, Docket No. 20-DB-057 (June 23, 2021) (Hearing Committee Report). Specifically, the hearing committee concluded that placing an advertisement in the Super Lawyers Magazine without pre-filing the ad with the LSBA will not per se subject a lawyer to discipline. See Id. In Belanger, the respondent lawyer placed an ad in Super Lawyers Magazine but did not pre-file the ad with the LSBA nor did he file the ad with the LSBA as a “late filing.” The Hearing Committee accepted the respondent’s argument that the advertisement placed in the Super Lawyer’s Magazine was set against a “plain background,” and therefore exempt from the rules requiring pre-filing with the LSBA. See La. Rules of Prof’l Conduct, r. 7.8(a) (“The following are exempt from the filing and review requirements of Rule 7.7 (a) any advertisement or unsolicited written communication that contains only content that is permissible under Rule 7.2(b)); see also id., r. 7.2(b)(1)(k). As a result, the Hearing Committee found that the respondent did not violate the Rules of Professional Conduct as the ad set against the plain background was exempt from the pre-filing requirements. See also In re Patrick C. Morrow, No. 20-DB-005 (May 13, 2021) (Hearing Committee Report finding that respondent who did not pre-file an advertisement in Super Lawyers Magazine with the LSBA prior to dissemination did not violate the Rules of Professional Conduct as the respondent reasonably belied that the advertisement fell within the “safe harbor” exemption).
Importantly, the Louisiana Supreme Court has yet to consider the findings of fact and conclusions of law reached by the Hearing Committees in Palmintier, Morrow, and Belanger. Yet, the Louisiana Supreme Court recently accepted two consent discipline petitions recommending a public reprimand for lawyers who failed to pre-file advertisements with the LSBA. In In re John W. Redmann, the Louisiana Supreme Court publicly reprimanded the respondent for failing to submit a billboard advertisement for review by the LSBA prior to or concurrently with the display of the advertisement. No. 2021-B-01060 (Oct. 5. 2021). In doing so, the respondent violated Rule 7.7(c). Similarly, in In re Eugene P. Redmann, the Louisiana Supreme Court publicly reprimanded the respondent for failing to submit an advertisement published in the Gambit, a weekly New Orleans newspaper, for review with the LSBA prior to or currently with the publication of the advertisement. No. 2021-B-00955 (Oct. 5. 2021). Moreover, the advertisement had not been filed with the LSBA as a “late filing” and the advertisement did not disclose the city or town of the respondent’s principal office location. In doing so, the respondent violated Rules 7.2(a)(2) and 7.7(c).
Guidance for Avoiding Discipline Related to Advertising
Going forward, lawyers can avoid the fate of the respondents in Palmintier, Redmann, and Redmann by pre-filing their non-exempt advertisements with the LSBA either prior to or concurrent with the dissemination of the advertisement to the public. The finding that the respondent in Belanger did not violate the Rules demonstrate that, at least according to the Hearing Committee in Belanger and Morror, Super Lawyer advertisements are not per se subject to the pre-filing rules. However, pre-filing the ad with the LSBA can avoid both the fate of Palmintier and the stress of the disciplinary hearing process as in Belanger and Morrow.
Lawyers concerned with advertisements that have run in the past without such vetting or review by the LSBA can submit “late filings” with the LSBA and pay the enhanced filing fee. The respondent in In re Eugene P. Redmann did not attempt to file the advertisement as a “late filing” with the LSBA. See In re Redmann, No. 2021-B-00955 at 1 (Oct. 5. 2021). The Louisiana Supreme highlighted this fact in its opinion accepting the joint petition for consent discipline. Id. Notably, however, the respondent in In re John W. Redmann did eventually submit the advertisement to the LSBA as a “late filing” to comply with the Rules of Professional Conduct. No. 2021-B-01060 (Oct. 5. 2021). Perhaps under different facts a respondent’s action of “late filing” to comply with the Rules of Professional Conduct could save a lawyer from receiving a disciplinary sanction. However, the Louisiana Supreme Court previously disciplined the respondent in In re John W. Redmann for failing to file an advertisement with the LSBA in 2013. Considering the respondent’s prior private discipline for similar conduct, the Louisiana Supreme Court concluded that the increased sanction of a public reprimand for failing to comply with the advertising rules was appropriate.
