Attorney advertising rules OK’d by justices

CARSON CITY -- Glen Lerner might be the one who needs a "Heavy Hitter" after the Nevada Supreme Court approved new rules Thursday governing how lawyers may advertise.

But the upside for personal injury lawyers such as Lerner and Chad Golightly, who have come under fire for their colorful and sometimes controversial advertising, is that the court indicated it has no intention of regulating taste.

The lawyers were never cited as examples in the new rules, which ban "dramatizations, testimonials or endorsements" in attorney advertisements. The court did, however, cite elements common in TV commercials featuring Lerner and Golightly.

TV and print ads are forbidden from "creating suspense, scenes containing exaggerations or situations calling for legal services," according to the rules.

"Citizens often choose lawyers based solely on their advertisements," said Justice James Hardesty, who helped get the new rules passed.

"Because choosing a lawyer can be such an important decision, we want our citizens to have accurate and complete information," Hardesty said.

In one commercial, Lerner cut checks to clients as a soccer announcer screamed "GOAL!" In another, he spun like a human tornado, generating cash for his clients.

One new rule prohibits lawyers from creating an unjustified expectation about the outcome of a case. If a law firm advertises that it has obtained certain verdicts, for example, it must be able to provide proof.

Golightly runs a television ad flanked by uniformed law enforcement agents from the North Las Vegas Police Department and the Nevada Highway Patrol.

Craig Walton, president of the Nevada Center for Public Ethics, criticized the ads in November 2005 because it appeared the agencies were endorsing Golightly. In addition to promoting Golightly's practice, the advertisements sought to curb drinking and driving and shooting guns in the air.

The new rules, effective Sept. 1, will allow scenes including "a lawyer working behind a desk, consulting with another lawyer, working in the library, climbing courthouse steps or other similar scenes reflecting activities commonly performed by lawyers."

Another reform requires that ads promoting a fee arrangement must advertise the entire arrangement. Hardesty noted that one law firm advertised a low-percentage contingency fee, but didn't disclose that the fee escalated if the case was not resolved in 30 days.

The new advertising rules also said all information in an electronic media advertisement "shall be articulated by a voice, with no background music." The voice must not be that of a celebrity who is recognizable to the public.

But bad taste will not be regulated, Hardesty said.

"Taste is something we cannot govern without infringing on First Amendment rights," the justice explained. "So restrictions on taste will be eliminated, but the new rules will make sure the content is not false or misleading."

The rules were adopted after a review that began in December 2004, when the Supreme Court appointed a committee to study lawyer advertising in Nevada.

The committee's recommendations were submitted in March 2006 to the board of governors of the State Bar of Nevada.

Under the new rules, lawyers must submit their ads to the State Bar for review within 15 days after publication or broadcast. If an ad is deemed to be inaccurate or misleading, it must be pulled. Attorneys can submit ads in advance for an advisory determination.

Because advertisements generally don't reveal a lawyer's background, attorneys also must provide their resumes to clients who request them.

Neither Lerner nor Golightly were available for comment Thursday afternoon.

The two lawyers might find their own "Heavy Hitter" in the American Civil Liberties Union of Nevada, whose leadership was not pleased by the new rules.

"A paternalistic view that says the public is too stupid to make a decision because there is background music or a celebrity is unjustified, unsupported by evidence and overall unwise," said Allen Lichtenstein, general counsel for the ACLU of Nevada.

Lichtenstein urged the Supreme Court to reconsider the rules in light of past U.S. Supreme Court decisions on advertising.

"The U.S. Supreme Court has said when it comes to regulating truthful speech, the real interest of the government is to protect the public and the fairness of the bargain," he said. "If there is nothing untruthful or misleading about the ad, the public should be allowed to be the party evaluating, not the Supreme Court or the state bar association."

Lichtenstein said the ACLU of Nevada will review the rules "with some concern."

The Associated Press and Review-Journal writer Glenn Puit contributed to this report.