There are a lot of dumpster fire situations going on these days that have direct or indirect relationships to legal ethics. Frankly, there are too many to make it easy to decide which ones to think it makes sense to spend time writing about here. There is the seemingly evergreen issue of Donald Trump continually finding lawyers to file frivolous lawsuits, but talking about those folks feels a bit like kicking puppies at this point. Particularly since they likely will end up at some point getting stiffed by their client on their fees. There are the back-to-back disappointing developments for efforts to re-regulate the delivery of legal services evidenced by this ABA Resolution and this California legislation but those (at least right now) “feel” like the futile efforts of folks just raging and raging against the dying of light.
So, instead, what I’m inspired to write about today is a frequent topic of conversation here — the absurdity of continued efforts at trying to impose clearly unconstitutional restrictions upon lawyer advertising by certain U.S. jurisdictions. As a result, we now allow the State of Louisiana to take the stage as an absolute dumpster fire embarrassment in the year of our lord two thousand and twenty-two. Many years ago, I was a member of a firm that had offices in Louisiana and so I have some memory of the antiquated nature of its approach to the commercial speech of lawyers, but I was surprised this week to learn that it absolutely hasn’t gotten one whit better.
So, the good news for Louisiana attorney Michael Palmintier is that he ultimately was successful in avoiding the imposition of discipline for violations of Louisiana’s rules governing lawyer advertising (at least in terms of winning at the level of the Louisiana Attorney Disciplinary Board) earlier this week. The bad news is that he only obtained a victory after losing before a Hearing Panel who wanted to hit him with a public reprimand and after enduring almost two years of prosecution. The atrocious news is that the entirety of the prosecution was about the fact that he and his law firm purchased a paid advertisement that ran in the Louisiana edition of Super Lawyers magazine.
Yes, you read that correctly. And, no, the disciplinary prosecution wasn’t because that the content of the advertisement was false or misleading in any fashion. The content of the disciplinary prosecution revolved around (a) that the advertisement went beyond what a Louisiana lawyer is allowed to say without having to file a copy of the advertisement with the disciplinary authority in advance and pay a $175 fee; and (b) that the photo in the advertisement was not “against a plain background.”
Yes, Louisiana continues to have, and apparently try to enforce, a rule that says that if an attorney’s advertisement has a photo of the lawyer but the background of the photo is not “a plain background” then it goes beyond what can be advertised without having to pay a fee and send a copy to regulatory authorities in advance.
Now because of the gobsmackingly ludicrous provisions in the Louisiana rules, in addition to making First Amendment arguments that were not addressed in the final decision, the lawyer also had to engage in efforts to argue that an advertisement in Super Lawyers is not actually an advertisement but just a “profile.”
The advertisement contained language such as “JUSTICE FOR GENERATIONS” and “advocating for people who need thoughtful and effective representation” and “they always prioritize each client’s needs and concerns. When colleagues and opponents need to refer cases to a skilled legal team, they recommended [name of his firm].” Such statements (like non-plain-background photos) go beyond what Louisiana RPC 7.2(b)(1) says can be in an advertisement without the need for complying with the filing requirements. Now the pre-filing/filing contemporaneous with running the advertisement requirement is simply nothing more and nothing less than a contrivance designed to impose a barrier to advertising. It is a vestige of rules that tried to require a pre-publication review that even jurisdictions like Louisiana have been required to acknowledge are an unconstitutional prior restraint on speech. That provision also has been significantly hamstrung in its application because of a 2009 Louisiana Supreme Court order suspending any effort to enforce RPC 7.7(c) as to advertising on the Internet. But it still remains a rule that applies to advertisements in print, or on television, or on radio, or by mail.
In the end, Palmintier really only prevailed because he was able to convince the LADB that he thought Super Lawyers magazine was only distributed to lawyers (which would have meant it was within the safe-harbor and not required to be filed before or at the time of publication) and because the disciplinary authority did not properly include any claim regarding the same ad being published in a magazine called Louisiana Life.
You can read the ruling of the LADB here. It also includes as attachments the Cambrian Era versions of the advertising rules that Louisiana continues to enforce without regard to their unconstitutionality and lack of justification from any sensible public policy standpoint.
Given the ridiculous nature of the rules and regime in Louisiana, I guess Palmintier should also be grateful that he didn’t face charges for his name alone … given that it implies that he is mintier than other lawyers named Pal.