Law and Labor

New look being taken at attorneys' ads

By Alana Roberts / Staff Writer

Lawyer ads have become a pervasive part of the Las Vegas Valley's advertising scene.

In response to that growth in advertising, the Nevada Supreme Court has appointed a 21-member committee of lawyers, academics and others in the legal community and the public to clarify the state's Supreme Court rules of conduct for lawyer advertising.

The Study Committee on Lawyer Advertising was appointed by the Nevada Supreme Court in December 2004. The group opened its most recent meeting earlier this month to the public, although no one from the public besides one television news station showed up, Las Vegas lawyer Bill Turner, who chairs the committee, said.

The group's goal is to clarify the rules so that they prohibit misleading or false advertising and avoid regulating whether ads are tasteful or sensational, Turner said. In doing that the committee must balance its responsibility to ensure lawyers are truthful in their advertising with the need to protect the commercial free speech rights of lawyers.

He said the group would like the public to have a role in the process. The committee was appointed as part of an on-going process by the State Bar of Nevada to ensure the rules are adaptable to the current legal industry's needs and current U.S. Supreme Court case law on commercial free speech.

The current rules were written in 1992 when the industry was smaller, he said.

"Constitutional law has developed since then," Turner said. "The American Bar Association has developed new model rules for advertising. The trend is to conform to the Constitution but protect the public. Also the commission feels the rules, as presently written, are very complex."

One current rule says, "There shall be no dramatizations, testimonials or endorsements in any advertisement in any medium. A lawyer's advertisement, regardless of medium, must provide only useful, factual information presented in a nonsensational manner." Turner said the rules, as written, are ambiguous.

"What do those mean?" Turner asked. "It's so poorly worded, I think lawyers looking at it are not sure."

As Nevada's legal industry has grown, so has the amount of lawyer advertising, he said.

"The advertising is very vigorous in this state," he said. "I don't think it's out of hand. I think Nevada is a growing state. We probably had one-quarter of the lawyers we have today. We see a lot more advertisements."

The committee is considering modelling some of its advertising regulations after those of the Texas bar, which must approve all lawyer advertising before it is allowed to air or run. He said Nevada may adopt a version in which the bar only approves some advertising such as radio and television commercials but not other ads.

Turner said preapproval can save lawyers time and money. He said one Nevada lawyer had to pull an ad that was paid for because it violated Nevada rules.

"I think we're serving a benefit, not only to the public but to the law firms in giving them guidance on the rules," Turner said. Thomas McAffee, a constitutional law professor at the Boyd School of Law at UNLV and a member of the committee, said the state's current lawyer advertising rules, if enforced, could potentially be found in violation of commercial free speech case law if challenged.

"But I guess the good news is I don't think it's been vigorously enforced in terms of stepping on free speech," McAffee said. In 1977 the U.S. Supreme Court ruled in Bates v. State Bar of Arizona that lawyers have the right to advertise but that regulation of lawyer advertising can ban false or misleading advertising.

"If anything, the (U.S. Supreme) Court's commitment to freedom of speech in a commercial sense has just expanded in the last 10 years and so it's not going away," he said. "It's only about 30 years (old). In the 1950s there would have been real doubt about whether commercial speech even counted under the First Amendment. That's why most professions, including the profession of attorneys, didn't permit advertising."

In other news:

Lorenzo Creighton, president and chief operating officer of MGM Mirage's New York-New York, has been honored with a Trumpet Award for his achievements in the business community. Creighton was the first black to run a Las Vegas Strip property as general manager of the Flamingo. The Trumpet Awards ceremony is set for Monday in Atlanta and will be broadcast on cable/satellite network TV One. Station Casinos Inc. has made Fortune Magazine's 100 Best Companies to Work For 2006 list. This is the second year in a row the company has been recognized by the magazine. The company was ranked 55th on the magazine's top 100 list this year and was ranked 54th last year.

Alana Roberts covers courts and labor relations for In Business Las Vegas and its sister publication, the Las Vegas Sun. She can be reached by e-mail at alanar@lasvegassun.com or at (702) 259-4059.

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