Introduction...

Freedom of Speech is one of the most fundamental principles upon which our Country was built. Introduced by the Founding Fathers in the First Amendment of the U. S. Constitution, it contains no ambiguity. Paid for in blood, by thousands of fellow Americans who fought and died so that future generations could possess, cherish, and pass this gift on, it has been vital to the past, present and future of our Great Nation. Yet, in present days it has become one of the most controversial issues and subjects for interpretation.

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Monday, February 25, 2008

The fine line between ethics, free speech

The fine line between ethics, free speech


02/25/08
By JAMES ROCKEFELLER
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Dear Jim, I have some relatives living in Savannah. They have been telling me about the Port Wentworth sugar refinery fire and how devastating it has been for the local community. They have also told me that lawyers, even from out- of-state, are advertising about suing. Why can’t a community mourn without having attorneys acting like this?

Dear Readers, Attorneys struggle mightily with this very issue. What does the profession collectively do to stop such callousness? What do we, as individual attorneys, do in structuring our marketing practices?

Your observation shines a light on the nebulous zone between ethics and constitutionally-protected free speech. In past columns, I have discussed free speech issues, observing how this right is integral to our success as a country.

We are currently in the midst of a presidential election where the nexus between controlling how money affects our government and speech can be at odds with each other. Many are very unhappy with attempts to control how money is raised and spent in Federal elections, and sneer of the so-called “McCain-Feingold” bill to control the flow of money in presidential elections. Frankly, most of these attempts have failed to accomplish much of anything because the United States Supreme Court, since considering post-Watergate finance campaign laws, has pretty consistently equated money with speech and made it difficult to regulate the financing of political campaigns and advertising.

This is the same problem we in the legal profession face, e.g., money is speech. For example, the State of Florida Bar Association has adopted professional rules requiring all television advertisements to be screened by the State Bar. That rule is now being challenged in Court and I predict it will be struck down as unconstitutional censoring of free speech.

Similarly, judicial raises, which should be about the law and judicial temperament, are no longer quite so “high-minded.” Judicial ethical rules circumscribing what candidates can say in elections have been obliterated by the right to free speech.

Still, there are a fairly complicated web of rules governing how attorneys may advertise. The overriding principal is that the public is entitled to be informed of its legal rights through advertisements. However, lawyers may not “make any false, fraudulent, deceptive, or misleading communication about the lawyer or the lawyer’s services.” Also, any direct mailing to a prospective client, such as a direct mail campaign, must clearly label the media as “advertisement.”

Finally, lawyers are prohibited from directly contacting victims of an accident or natural disaster for thirty (30) days. This last rule is designed to protect individual solicitation, but it does not encompass television or radio appeals. Thus, if I am driving by a car wreck, I am prohibited from stopping and handing out my business card. Sadly, there are many unscrupulous lawyers who have surrogates doing this for them.

As a lawyer, I recognize that marketing is as important to me as it is to the local restaurant or retail outlet. News of my reputation (good or bad) only reaches so many people. Yet, I have had many clients who originally hired“TV attorneys” and found them lacking. Unfortunately, I really don’t have any easy response to your observation. There are tasteless ads and then there are lawyers who use various media, like TV, to reach a wider audience. All I can do is apologize for the base activities of my brethren in Port Wentworth who failed to recognize the line they clearly crossed.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston County Chief Assistant District Attorney, and a former Miami Prosecutor. E-mail confidential legal questions to ajr@rockefellerlawcenter.com. Visit www.rockefellerlawcenter.com for Frequently Asked Questions and Jim’s blog, The Rockefeller Report.

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