Lawyers' dramatic TV ads don't make cut for federal judge
By The Associated Press
07.25.01
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RALEIGH, N.C. — A federal judge has upheld a decision by the N.C. State Bar prohibiting two North Carolina law firms from airing television dramatizations to advertise their firms.
The ads, which have been pulled from the air, stirred debate in the legal community over freedom of speech and the boundaries of truth in advertising.
"We understand that law firm advertising makes some lawyers uncomfortable, especially with dramatizations," said David Daggett, whose law firm sued the State Bar over the right to air the commercial.
"But the bottom line is that consumers are savvy enough to recognize that it's just a commercial," he said yesterday.
Durham lawyer James Scott Farrin and the Winston-Salem law firm of Lewis & Daggett sued the Bar in November in federal court.
At issue was a commercial in which actor Robert Vaughn, known for starring in the 1960s television show "The Man from UNCLE," plugs Daggett's practice.
Other actors in the commercial discuss a hypothetical personal-injury lawsuit. One actor plays a senior insurance lawyer who is talking with a junior lawyer.
"How do you suggest we handle this claim?" the older man asks.
"It's a large claim, serious auto accident," the junior lawyer replies.
Older man: "Who's the lawyer representing the victim?"
Junior lawyer: "Lewis and Daggett."
Dramatic background sounds punctuate the mention of the firm's name. "We better settle this one," the senior lawyer says.
The Lewis & Daggett commercial aired more than 10,000 times in North Carolina before it was voluntarily pulled in August 1999 at the request of the State Bar.
Farrin aired the same advertisement some 8,500 times with his own name substituted for that of Lewis and Daggett at the end. The Durham lawyer pulled his ad on Oct. 20, 2000.
The State Bar issued an ethics opinion that the commercial was misleading. The opinion said the commercial "intentionally creates the impression" that the insurance company is eager to settle a claim brought by Lewis & Daggett or Farrin solely because of their
reputations.
The commercial is unethical and does not comply with the Rules of Professional Conduct for lawyers in North Carolina, the State Bar concluded.
The law firms disagreed, arguing that that the State Bar failed to submit any evidence that consumers had either complained or been harmed by the ads.
But in a 45-page opinion issued July 19, U.S. District Judge William L. Osteen Sr. upheld the Bar's decision. Osteen concluded the ads were misleading and not constitutionally protected commercial speech.
The judge cited a Supreme Court of Arizona decision on a similar case, explaining why "sophisticated," persuasive ads are often misleading: "While no doubt effective in attracting clients, dramatic, nonfactual advertisements are more likely to misrepresent or omit material facts, or to create unjustified expectations about the results a lawyer can achieve," the decision said.
The Bar's opinion means that the two firms could be subjected to disciplinary action, up to and including the revocation of law licenses, if they air the commercial again.
Farrin could not be reached for comment last night. But Daggett said his firm was considering appealing.
"Our ad was no different from the hundreds of others you see on television," said Daggett, who cited an old E.F. Hutton ad as an example.
"They said when E.F. Hutton speaks, people listen. Well, obviously not all heads are turning when E.F. speaks in a restaurant. Consumers realize this," he said.
Daggett said he believed his case was one of the first at the federal level to address the issue of commercial dramatizations.
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Lawyers fight N.C. State Bar's prohibition of TV ad
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