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Attorney ads: Subjective restrictions fly in face of free speech

Lawyers have an awful lot to do with the advertising we read, hear and see throughout all forms of media.

Those "Do not attempt: stunt professional" warnings that appear on commercials with speeding cars and slapstick indignities? Brought to you by lawyers. The vehicle financing terms played at fast-forward speed on auto dealership radio ads? Thank your local attorney.

With each passing year, our politicians and our courts determine the public is getting collectively dumber and needs ever-greater protection from itself. We can’t be trusted to understand a joke, much less a deal that might be too good to be true. So it’s somewhat ironic, but not at all surprising, that Nevada lawyers are about to get a dose of their own medicine.

State Bar President Frank Flaherty recently announced some major revisions to Nevada attorney advertising rules, authorized by the state Supreme Court, intended to spare the public from potentially misleading solicitations. Some of the changes:

– Disclaimers must be displayed in print ads, "big enough to see," Mr. Flaherty says, and in TV commercials as well.

– Ads that list specific fees or fee ranges must disclose how long the fees are valid and whether there are any limitations.

– Actors must be clearly identified. (Employing bad actors no longer is obvious enough.)

– Firms must identify each lawyer who provides services named in ads.

– Any firm that cites the amount of a court award in an advertisement must provide only the amount the client received, or provide a complete breakdown of attorney fees, litigation expenses and other costs.

– Any attorney who touts court records or results can "only cite the results if you were lead counsel in the matter or key in the result," Mr. Flaherty says.

– All ads must be submitted to bar review committees 15 days prior to publication or broadcast. If the committee considers the ad deceptive or misleading, it must not be aired or published.

Many of these standards are highly subjective. Is a disclaimer that’s big enough to see still too small to read? How does one determine whether they’re "key" in a litigation result? And what’s misleading to one person might be a highly effective solicitation to another.

Lawyers test limits and find their way around obstacles. They find loopholes. They argue that one sentence in the law means exactly the opposite of what it says. That’s their job. We have no doubt they’ll apply those skills in navigating this silly mess of restrictions that run afoul of the Constitution’s free-speech safeguards.

Anytime anyone is empowered to decide whether protected expression is acceptable, it imperils the rights of everyone else. We need less interference in the exchange of ideas. We’re much smarter than lawyers give us credit for.

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