Lawyer Advertising
New Rules - Post-Adoption/Pre-Effective Date Events

IMPORTANT NOTICE - New Louisiana Rules of Professional Conduct pertaining to Lawyer Advertising set to become Effective on October 1, 2009 - Supreme Court of Louisiana Issues Order on 09-22-2009
Considering the judgment rendered by the U.S. District Court for the Eastern District of Louisiana in August 2009, the Supreme Court of Louisiana issued an Order on 09-22-2009 suspending enforcement of Rule 7.5(b)(2)(c), 7.6(d) and Rule 7.7 (only as it pertains to filing requirements for internet advertisements) of the new Louisiana Rules of Professional Conduct pertaining to lawyer advertising. The balance of the new Rules will become effective on 10-01-2009, as per the Court's Order of 02-18-2009. For further information: please see the Court's Order.

IMPORTANT NOTICE: U.S. District Court Issues Judgment on Lawyer Advertising Rules
On Aug. 19, 2009, U.S. District Court Judge Martin L.C. Feldman signed a Judgment, in keeping with the Order and Reasons issued on Aug. 3 ruling on cross motions for summary judgment. The Judgment upholds most of the challenged provisions of the Louisiana advertising rules scheduled to go into effect on Oct. 1, 2009.

The Judgment grants the defendants' Motions for Summary Judgment as to:

• Rule 7.2 (c) (1) (D) - References to Testimonials of Past Results
• Rule 7.2 (c) (1) (E) - Communications that Promise Results
• Rule 7.2 (c) (1) (J) - Portrayal of a Judge or Jury
• Rule 7.2 (c) (1) (L) - Use of Mottos that State or Imply An Ability to Obtain Results
• Rule 7.2 (c) (1) (I) - Non-Authentic Scenes
• Rule 7.2(c)(10) - Disclosures and Disclaimers
• Rule 7.2(c)(11) and Rule 7.6(c)(3) - Payment by Non-Advertising Lawyer and Electronic Mail Communications

The Judgment grants the plaintiffs' Motions for Summary Judgment in part and enjoins the defendants from enforcing:

• Rule 7.5(b)(2)(C) - Additional Disclosure Requirements for a Non-lawyer Spokesperson
• Rule 7.6(d) - Internet Advertising, and Rule 7.7 (as it applies to the filing requirements for Internet advertising).

IMPORTANT NOTICE: U.S. District Court Issues Order on Lawyer Advertising Rules
On August 3, 2009, U.S. District Court Judge Martin L.C. Feldman issued an order and reasons ruling on cross motions for summary judgment. Judge Feldman's order upheld most of the challenged provisions of the Louisiana advertising rules scheduled to go into effect on October 1, 2009, while also denying the defendants' motion to dismiss. Washington D.C.-based Public Citizen, Inc. and lawyers Morris Bart, William N. Gee III and Scott G. Wolfe, Jr. sued the Louisiana Attorney Disciplinary Board, its chair and its chief disciplinary counsel to block enforcement of the Rules claiming that they were unconstitutional.

Citing the U.S. Supreme Court in Edenfield v. Fane, the Court stated, "The State may not by scatter-shot condemn lawyer advertising, but does indeed have a substantial interest in addressing the ethical standards of the profession, as well as in preventing public confusion or deception."

In its 39-page Order, the Court upheld:

• Rule 7.2 (c) (1) (D) - References to Testimonials of Past Results
  The Court stated that "reference to past results, even if truthful,...could... be inherently misleading."


• Rule 7.2 (c) (1) (E) - Communications that Promise Results
  The Court said "prohibition of communications that promise results regulates only speech that is inherently misleading."


• Rule 7.2 (c) (1) (J) - Portrayal of a Judge or Jury
  The Court said it agreed that "portrayal of a judge or jury in an ad is inherently misleading." It further stated "…such material simply conveys an untrue message. It is compellingly misleading."


• Rule 7.2 (c) (1) (L) - Use of Mottos that State or Imply An Ability to Obtain Results
  The Court found that this provision "materially advances the State's interest in preventing deception of the public, and is narrowly tailored to achieve those ends."


• Rule 7.2 (c) (1) (I) - Non-Authentic Scenes
  The Court cited Zauderer, which held that "an advertizer's (sic) rights are adequately protected as long as the disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." The Court stated "such dramatizations are in and of themselves capable of unintended guile or delusion."


• Rule 7.2(c)(10) - Disclosures and Disclaimers
  Further citing Zauderer, the Court stated that "the written disclaimer requirements of Rule 7.2(c)(10)" do not violate the First Amendment and "this Court believes such disclaimers would have a beneficial purpose."


• Rule 7.2(c)(11) and Rule 7.6(c)(3) - Payment by Non-Advertising Lawyer and Electronic Mail Communications
  The Court noted that the plaintiffs did not address these Rules in their motion for summary judgment, "thus, their attack does not reach those Rules."

Finding a lack of evidentiary support, Judge Feldman struck down the additional disclosure requirements for a non-lawyer spokesperson under Rule 7.5(b)(2)(C) and also struck down Rule 7.6(d), and Rule 7.7 as it applies to the filing requirements for Internet advertising.
Review the Court Order

IMPORTANT NOTICE - Rules of Professional Conduct pertaining to lawyer advertising will become effective on October 1, 2009 - Court Further Amends Rules on 06-30-2009 The Court's recently-adopted amendments to the Rules of Professional Conduct pertaining to lawyer advertising have been further amended. For further information: please see the Court's Order.

IMPORTANT NOTICE - Rules of Professional Conduct pertaining to lawyer advertising will become effective on October 1, 2009, rather than April 1 - Court Amends Rules on 06-04-2009 Chief Justice Catherine D. Kimball announced on 06-04-2009 that the Court's recently-adopted amendments to the Rules of Professional Conduct pertaining to lawyer advertising have been further amended in response to recommendations received from the Louisiana State Bar Association. For further information: please see the Court's Order and Press Release.

Effective Date of New Lawyer Advertising Rules Now Deferred to October 1, 2009
Chief Justice Catherine D. Kimball announced Wednesday, February 18, 2009 that the Court's recently-adopted amendments to the Rules of Professional Conduct pertaining to lawyer advertising will become effective on October 1, 2009, rather than April 1, 2009, as previously announced. The Court has decided to defer implementation of the new rules until October 1, 2009, in order to allow the LSBA and the Court to further study certain rules in light of the constitutional challenges that have been raised. For more information, please see the Court's Order, signed February 18, 2009, and the full text of the Court's press release, announcing the deferred implementation of the new Rules until October 1, 2009.

Previous Announcement
Effective Date of New Lawyer Advertising Rules Deferred To April 1, 2009
Chief Justice Pascal Calogero, Jr. announced on October 31, 2008 that the Court's recently-adopted amendments to the Rules of Professional Conduct pertaining to lawyer advertising will become effective on April 1, 2009, rather than December 1, 2008, as previously announced.  For more information, please see the Court's Order, signed October 31, 2008, and the full text of the Court's press release, announcing the deferred implementation of the new Rules until April 1, 2009.

All questions and inquiries regarding the new lawyer advertising Rules and/or the filing/evaluation process may be directed to:

LSBA Ethics Counsel Richard P. Lemmler, Jr., Direct Line: (504) 619-0144, Telefax: (504) 598-6753.

Mailing Address:
Louisiana State Bar Association
Rules of Professional Conduct Committee
c/o LSBA Ethics Counsel
601 St. Charles Avenue
New Orleans, LA 70130-3404