Two plaintiffs attorneys asked a federal appeals court Tuesday to rule that some of the Louisiana Supreme Court's new restrictions on lawyer advertising are unconstitutional and can't be enforced.
A three-judge panel from the 5th U.S. Circuit Court of Appeals didn't immediately rule after hearing the appeal filed by attorneys Morris Bart of New Orleans and William Gee III of Lafayette.
U.S. District Judge Martin Feldman ruled last year that the state can freely regulate ads that employ client testimonials, portray a judge or jury, "promise results" for clients or use mottos that imply a lawyer's ability to "obtain results."
The state's attorney disciplinary board says the new rules, which took effect last October, are designed to protect the public from deceptive ads. Barry Ashe, a lawyer for the board, urged the 5th Circuit panel to uphold Feldman's ruling.
"Judge Feldman got it right on the facts and the law," Ashe said.
Bart and Gee, however, say the new rules set overly broad limits on commercial speech.
"In this case, it's not difficult to think of ways the state could have more narrowly tailored its rules," said attorney Greg Beck of Public Citizen Inc., a nonprofit group that joined Bart and Gee in suing and has filed similar suits in New York and Florida.
Not all of the rules adopted by the state Supreme Court survived Feldman's ruling. Feldman said a rule limiting attorneys' use of celebrity endorsements violates the First Amendment. He also struck down two rules governing lawyers' Internet ads, which he said don't account for differences between ads on the Web and those on television.
But the judge upheld several other new rules, including a rule banning mottos and trade names that imply results.
Judge Patrick Higginbotham pressed Ashe to explain what's misleading about ads that refer to a lawyer's past results for clients.
"That doesn't mean you're going to win them all," Higginbotham said.
Ashe said the rule doesn't preclude consumers from getting information about a lawyer's track record through other means, such as on the Internet.
Judge Priscilla Owen asked Ashe how it would be "inherently misleading" for an actor portraying a judge to appear in an ad without saying anything.
"It's the implication that the lawyer, the advertising lawyer, has special influence with a judge ... even if it's a fake judge," Ashe responded.
Beck noted that Feldman's ruling may conflict with a recent decision by the 2nd U.S. Circuit Court of Appeals, which struck down New York rules prohibiting portrayal of a judge in lawyer ads and limiting the use of mottos. One of the cases could be ripe for Supreme Court review if Feldman's ruling stands, Beck added.
"It would be good to get some clarification," he said.
Bart said the rule restricting references to "past results" has deprived him of one of his most effective advertising techniques.
"That resonates with clients," he said after the hearing.
Bart said he has submitted more than 100 ads for the board to review, and "all but a handful" have been rejected.
"The devil is in the enforcement," he added. "The application of the rules has been overly restrictive and burdensome."
Bart said the new rules haven't cost him any clients, but Gee believes the new requirements - including one that says written disclaimers must be as large as the largest print size in an ad - have undermined the effectiveness of his ads.
"It seems like we are getting fewer cases than before," he said.
By MICHAEL KUNZELMAN