Supreme Court revises lawyer advertising rules

May 29, 2003

The Mississippi Supreme Court on Thursday adopted stricter rules regarding lawyer advertising.

An order signed by Justice William L. Waller Jr., chairman of the Supreme Court Rules Committee, on behalf of the court, says "that the adoption of such rules will alleviate abuses which have been observed in the solicitation of clients by attorneys."

Mississippi Supreme Court Chief Justice Edwin L. Pittman said, "We've had a gross amount of advertisement with no management."

One of the revisions adopted by the Supreme Court places limitations on statements about results obtained on behalf of a client.

The new Rules 7.1 (b) and (c) of the Mississippi Rules of Professional Conduct say that an advertisement is in violation of the rules if it "creates an unjustified, false or misleading expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these rules or other law;" or if the advertisement "states or implies that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official."

In a commentary on the rules, the court said that "statements that create an unjustified expectation of results precludes advertisements about results obtained on behalf of a client, such as the amount of damage verdicts or settlements, that create an unjustified expectation of similar results without reference to the specific factual and legal circumstances."

All advertisements will be required to be filed with the Office of General Counsel of the Mississippi Bar before the advertisements may be aired or published. The new Rule 7.5 of the Mississippi Rules of Professional Conduct exempt only telephone directory non-display ads.

Advertising rules before they were revised included an optional provision that allowed lawyers to submit ads for review and obtain advisory opinions from the Office of General Counsel of the Mississippi Bar. Under the revisions, the Office of General Counsel may give an advisory opinion about whether the ad complies with the rules if the advertiser requests an opinion.

The new Rule 7.2 (c) requires that all advertisements disclose the city or town in which the lawyers are located or include a reference to further information being available from the Mississippi Bar. The rule does not require a physical address.

Pittman said advertisements that use toll-free telephone numbers don't make it clear where the lawyers are located, or whether the entities on the other end of the toll-free line are lawyers subject to the rules of or in good standing with a state bar association.

In Rule 7.2, the court said the advertising rules apply to Internet communications such as web sites and electronic mail.

Other amendments to rules regarding the practice of law dovetail into changes the Supreme Court adopted in January regarding practice of law by attorneys who are not licensed in Mississippi. The process is known as being admitted to practice pro hac vice.

The court on Thursday revised the jurisdictional rule of the Mississippi Rules of Professional Conduct. The revision to Rule 8.5 says, "A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer advertises, provides or offers to provide any legal services to be performed in this jurisdiction."

In a revision to Rule 8 of the Rules of Discipline of the Mississippi Bar, the court gave a bar Complaint Tribunal the power to enjoin violations of the Mississippi Rules of Professional Conduct.

Pittman more than a year ago asked the Mississippi Bar to study lawyer advertising and make recommendations. The Mississippi Bar made recommendations in October 2002. The Supreme Court revised and adopted some of those recommendations.

The revisions are effective Sept. 1.

Pittman said, "We do anticipate these new rules are going to be challenged, likely in federal courts, by lawyers both in and out of the state who wish to advertise. But a majority of this court believes it is in the public interest to know who is advertising in Mississippi and whether or not they can render the services they advertise. We believe that this is in the interest of professionalism for the lawyers who propose to advertise in this state."

"Even though we will likely have to call upon the attorney general's office to defend these rules, it's well worth it if we have a reasonable effect on the nature of the advertising," Pittman said.

Advertising lawyers, a consultant firm, the Mississippi Association of Broadcasters and Public Citizen, Inc. sued the Mississippi Bar and bar officials after the Supreme Court adopted restrictive lawyer advertising rules in June 1994. A U.S. District Court judge in June 1995 ruled that those advertising rules were unconstitutional and unenforceable.

Pittman said, "We can't interfere with freedom of speech. We don't restrict what they can say in any harsh way. We believe it is constitutional."

Pittman noted that the rules adopted Thursday are largely modeled on rules which have been in effect in other states for several years or have been challenged and found to pass constitutional muster in other states.

A copy of the rule changes is available on the Supreme Court's web site, courts.ms.gov. Look under the 5-29-2003 Hand Down list or under Rules.

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