Court decision to review ads worries some Nevada lawyers

CARSON CITY -- Some Nevada lawyers are concerned the Supreme Court's creation of a committee to monitor advertising by lawyers could lead to the unfair rejection of their TV or print advertisements.

"If the State Bar is allowed to review these ads and say 'This is bad or that is bad,' it could have a chilling effect on advertising," said Chad Golightly, a Las Vegas lawyer who often advertises on television. "If you are a lawyer competing against me and you sit on that committee, your view of what is honest advertising may be different than what the general public thinks."

Though he supports the new advertising rules, Northern Nevada lawyer Joe Laub agrees with Golightly that lawyers are very competitive in dealings with each other.

"Lawyers who advertise are very much disliked by non-advertising lawyers," Laub said. "When lawyers evaluate other lawyers, they are very harsh."

American Civil Liberties Union lawyer Allen Lichtenstein said creation of the advertisement review committees could violate lawyers' First Amendment rights.

"I am puzzled by that," Lich-tenstein said. "You have to submit your ad to a bar committee to have it approved or disapproved. That is highly problematic."

Under the new rules on lawyer advertising, issued last Thursday, lawyers must submit their ads to the State Bar for review either 15 days before or after publication or broadcast. Committees of lawyers and non-lawyers will be created in both Northern and Southern Nevada to review ads. They will meet at least monthly.

If an ad is deemed to be inaccurate or misleading, the lawyer can be disciplined if the ad is not pulled. Attorneys may submit ads in advance for an advisory determination.

Under an existing lawyer advertising rule, which was not changed, an attorney cannot make "false or misleading communication about the lawyer or the lawyer's services."

And any statements describing the quality of a lawyer's services under the new rule are "subject to proof of verification, to be provided at the request of the State Bar or a client or prospective client."

In announcing the rule changes, Supreme Court Justice James Hardesty said the court no longer would be regulating "taste" in lawyer ads.

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

The rules, adopted unanimously by the Supreme Court, go into effect on Sept. 1.

Older rules prevented lawyers from running print or TV ads that "created suspense, scenes containing exaggerations or situations calling for legal services." The old rules also prohibited "dramatizations, testimonials or endorsements" in attorney advertisements. The Review-Journal initially reported that there would be a ban on these approaches in ads, but the court repealed all these rules, which were often unenforced anyway.

Under the new rules, lawyers cannot make claims that create an unjustified expectation about the outcome of a case. And they must disclose specific information on how long their fees will be in effect, if fees are included in advertisement.

Lawyers who advertise that they take a contingency fee based on the percentage of the recovery must include a disclaimer that the opposing lawyer's fees might have to be paid "in the event of a loss." Lawyers also must disclose "all possible terms" about fees if they include fee information in advertisements.

Las Vegas lawyer Edward M. Bernstein, who served on the State Bar committee that recommended the rules, said the fee provision was added because some lawyers advertised a very low fee, but it applied "only if the case was settled in 30 days or 60 days"

"No case is going to be finished that quickly," He said.

Although there will be criticism about lawyers having to submit advertising to a monitoring committee, he said "ads cost a lot of money to produce" so lawyers will have a chance to have them approved before they make such expenditures.

"We had a long debate on whether it was constitutionally lawful," Bernstein said about the advertising committees. "It is not prior restraint. It doesn't not stop free speech. The new rules are far less restrictive than what we had before."