The lawyer advertising double standard

Unemployed and under-employed law graduates have sued several law schools, claiming the schools used false or misleading employment data to induce them to enroll and spend $150,000-or-so of their yet-to-be-earned dollars.  One law school advertising tactic, for example, was to label jobless graduates as “not seeking” employment; this allowed a school to hide the abysmally high unemployment rate of its graduates.  Another, more common tactic was to count graduates as “employed” even when their jobs had absolutely nothing to do with law (e.g., working at Starbucks), or were only temporary jobs created by the law school to artificially boost its employment statistics.  Another was to say that, for example, 92 percent of all grads were employed, when in fact only 92 percent of the 40 percent who responded to the survey were employed.  In sum, law school advertising at many schools took tremendous liberties in spinning the facts.    

But most courts have dismissed these lawsuits against law schools.  The reason: according to many courts, the law schools’ employment data was so obviously false that no reasonable, prospective student should have relied on it!  And a Florida court recently stated, in part, that its particular law “does not require companies (here, law schools) to be wholly transparent or prohibit them from publishing facts in the light most conducive to business[.]”

Many of these unsuccessful job seekers turned unsuccessful plaintiffs will have to do what nearly half of all lawyers do: work as a solo practitioner.  And as a solo practitioner, they can expect yet another swift kick in the gut.  That is, the tremendous leeway and creative license afforded to law schools and their advertising campaigns will not carry over to the practicing lawyer.  Instead, there is a lawyer advertising double standard.

When it comes to controlling lawyer advertising, many states adopt the ABA’s comment that “[a]n advertisement that truthfully reports a lawyer’s achievements on behave of clients or former clients may be misleading[.]”  For example, one lawyer advertised by urging clients to “Choose a lawyer with 20 years of United States Marine Corps experience . . .” and stating that he was aggressive and would fight for them.  The court disciplined the lawyer because this statement was misleading.  Even though the attorney did, in fact, have 20 years of military experience, he never served as a lawyer in the United States Marine Corps.  Other cases include a lawyer disciplined for describing himself as a “prosecutor” when in fact he was a “deputy prosecutor,” and a lawyer disciplined for truthfully advertising the dollar amounts that his firm won in personal injury cases.

In short, the double standard is this: law schools can make misleading claims and outright false claims and get away with it, while practicing lawyers can make truthful claims and still be disciplined.  I realize that in one situation (law school advertising) we’re typically dealing with state anti-fraud statutes and similar statutes, while in the other situation (lawyer advertising) we’re dealing with “ethics” rules.  But the comparison is still interesting, especially because law schools are supposedly training future lawyers.  Further, aren’t the law school deans and other people who advertise for law schools also lawyers?  Aren’t they subject to the same ethics rules as practicing lawyers?  Shouldn’t they, too, be disciplined under those rules? 

One law review article argues that the answer to the above questions is “yes.”  But for now, we’re stuck with the lawyer advertising double standard.