"I am the Greatest"
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07 September 2011
Muhammad Ali was undoubtedly the greatest. I’m not talking about boxing. I’m talking about talking. Ali was hands down the greatest self-promoter and the most gifted swordsman of the tongue that the world has ever known. Unfortunately, we will need to place an asterisk next to his name because he practiced his trade in the era before lawyer advertising. In the modern era, lawyers are without rivals in the arena of self-promotion.
We lawyers are all guilty of waving our own banners to some degree or another and it is largely understandable. Lawyers by nature tend to be intelligent, competitive and confident. Mix those ingredients in a competitive marketplace for legal services and there should be little surprise at the tendency of lawyers to push the envelope when it comes to selling one’s wares. Even so, the beast in each of us has been restrained in the past in part through social standards which once frowned upon end zone celebrations and the pregnant pause of admiration as a home run exited the stadium. But that was then and this is now. While there is still no “I” in team, there is a “me” and in a time where everyone has their own reality show, Facebook page, and Twitter identity, if “I” don’t promote “me”, who will? In addition social restraints of society, lawyers have also been actively restrained in the past by strict rules of lawyer advertising which frowned upon testimonials and other forms of speech intended to separate each of us from our peers.
It is in this egomaniacal morass that our Supreme Court has been forced to toil with the unenviable task of preserving the public trust in the legal system while at the same time allowing lawyers the latitude to express and promote themselves. A recent amendment to the rules regulating lawyer advertising may have further cracked open the cage door. While testimonials in lawyer advertising were once strictly taboo, the new amendment to the rules governing lawyer advertising (August, 2011) now permit client testimonials, provided that certain conditions are met. Incredibly, one of those conditions is the requirement of disclosure if the client was paid for the testimonial – yes - paid. The amendment further provides that disclosure be made if the endorsement comes from someone who is not an actual client. Excuse me, but it sounds like the new rule would allow lawyers to pay non-clients for testimonials and endorsements so long as those facts are disclosed. Again, we appreciate just how precarious the waters are surrounding this issue, but if the overriding goal is to preserve public trust, it seems that allowing paid testimonials from non-clients is a step in the wrong direction.
Before any reader jumps into the void on this issue, it would be prudent first to:
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Read the rule and the comments to the rule and heed caution to the Court's sensitivity to the tone of the advertising. <SC Supreme Court Order Amending SC Rules of Professional Conduct dated 8/22/2011>
- Review any proposed advertising with an expert and, if possible, obtain an advisory opinion.
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Be factual. It seems to go without saying that being factual is always safe ground.
- Disclaim. The amendment makes it clear that lawyers should set forth plainly that past results do not necessarily indicate that similar results can be obtained on behalf of other clients.
For the time being, Ali still reigns. Give lawyers enough liberty, however, and rest assured it will be a lawyer who dethrones the king.
Ronnie Richter / Eric Bland
