Enforcement Report, Office of Bar Counsel
Attorney Advertising and Disciplinary enforcement
in Nevada
March 1, 2006
Submitted by: Rob W. Bare, Bar Counsel
State Bar of Nevada
Study Committee on Lawyer
Advertising (SCLA)
William C. Turner, Esq., Chair
Hon. Nancy A. Becker, Nv. S.Ct. Justice
Hon. James W. Hardesty, Nv. S.Ct. Justice
Edward M. Bernstein, Esq.
Steven M. Burris, Esq.
Hon. Michael A. Cherry, 8th Judicial District
Tracy A. Eglet, Esq.
Rew R. Goodenow, Esq., Board of Governors
Dianna D. Hegeduis, Esq., CDAG
Tracey L. Itts, Esq.
Bradley L. Kenny, Esq.
Tom McAffee, Professor, UNLV Law School
Terry McConnell, laymember
Richard J. Morgan, Dean, UNLV Law School
Richard W. Myers, Esq.
Peter Chase Neumann, Esq.
Patrice D. Perez, Esq.
George J. Chanos, Nevada Attorney General
Bryan K. Scott, Esq.
Caryn Swobe, laymember
Reporter
Allen W. Kimbrough, Executive Director, CAE
Legal Support
Rob W. Bare, Bar Counsel
After a year of research and deliberations, the
Study Committee on Lawyer Advertising has proven
the axiom that we all began with at its inception:
effective regulation in any field requires a marriage of
well-written rules and adequate enforcement efforts.
The Study Committee’s endeavors have focused
upon tightening Nevada’s rules of attorney advertising
to ensure adequate notice, enforceable terms, and a
sound constitutional test under the first amendment.
The second part of the formula, enforcement, has been
a large part of the Committee’s discussions and
analysis of the current system and how it may be
improved by new rules.
One of the suggested avenues to potentially aid
enforcement efforts has been the concurrent review
proposal that is changing the disciplinary review
system from a reactionary, complaint-driven system to
a mandatory, front-end submission requirement. This
rule proposal has engendered the most debate in this
initiative, as it arguably should as it will have the most
impact on Nevada’s advertising lawyers.
Understanding how enforcement is currently
being handled is integral to this discussion. This report
is submitted at the Committee’s request to help provide
a picture of a typical year of disciplinary enforcement of
attorney advertising regulations.
1.
Paralegal Kristina Marzec, CLA
[email protected] 317-1426
Enforcement Report, Office of Bar Counsel
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1.
The Confidentiality conundrum.
In order for enforcement efforts to be made public under our confidentiality rules,
which are incidentally the same in approximately 70% of the country’s disciplinary
jurisdictions, a matter must be found sufficient to warrant a formal public hearing.
Historically, the vast majority of advertising matters which come to the Bar’s
attention are voluntarily remedied by the lawyer. As we saw with Texas, where only 5%
of the thousands of ads reviewed every year ever get to disciplinary counsel, in Nevada
most lawyers are willing to work with the state bar. The few cases that are not resolved
at this level and do go to a screening panel of the disciplinary boards are almost
universally given a low level discipline, such as a private reprimand or letter of caution,
putting the lawyer on notice to change the ad. At that point, 99% of the time the lawyer
accepts the ruling and changes the ad.
In large part due to first amendment concerns, and perhaps also in light of
Nevada’s existing rules being particularly complicated and lengthy, panels are not
willing to give public discipline on the sole issue of advertising without giving lawyers a
first and often second chance to remedy. This does not apply to deceptive or
misleading advertising. I am talking about the more “technical” violations found in
current Rule 196, RPC 7.2.
While it is true that attorneys who choose to fight the system can take some time
to process through the disciplinary system, that situation is in fact rare.
2.
Types of complaints received and enforcement responses1
Statistically, the Office of Bar Counsel receives an average of 1,200 complaints
per year from all sources. Of those 1,200 complaints, approximately sixty (60) deal
with advertising, either directly or indirectly. Of those approximate sixty (60) complaints
received on advertising, about twenty (20) are filed by clients. The remainder is filed by
attorneys, whom it should be noted are often (but not always) competitors.
There are two basic categories of advertising complaints:
I.
Complaints filed by clients who have additional allegations beyond the
advertisement itself, but begin by saying they were persuaded to hire an attorney based
on an advertisement, and that aforesaid attorney failed to meet the expectations
impliedly promised in the advertisement; and
II.
Complaints filed by attorneys, or sua sponte by the Office of Bar
Counsel, based solely on the violative content of an attorney advertisement.
1
This portion of the report was also previously submitted to the SCLA Public Hearings and Education
Subcommittee.
Enforcement Report, Office of Bar Counsel
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A. CLIENT COMPLAINTS.
i)
Advertisements in foreign language newspapers. This is an area that
is fast emerging as an egregious problem. The scenario will go that a lawyer will “tap” a
foreign language market by hiring an associate (usually either a paralegal or a foreign
lawyer) who speaks a language the lawyer does not. Then the lawyer advertises in the
foreign-language mediums and typically generates a significant client base fairly quickly.
The Bar receives complaints (primarily in the immigration and personal injury
areas) wherein the client found the lawyer in the foreign language medium (usually a
newspaper or Univision), was enticed by the advertisement to hire the firm, but then
dealt almost exclusively with the assistant. These clients typically express frustration
that they were led to believe the lawyer would personally represent them, but in reality,
they deal almost exclusively with others, almost always non-lawyer assistants. This
also creates serious concerns with communication because the lawyer does not speak
the language of the clients and relies on non-lawyer assistants to communicate
effectively.
In fact, recent screening panels of the Southern Nevada Disciplinary Board
requested this concern be specifically relayed to the SCLA with the question posed,
“Should lawyers be allowed to advertise in a foreign language when no licensed
lawyer in the advertising firm is conversant in said language?”
ii)
Misleading contingency fees. This is almost a bait-and-switch type
concern. In these cases, the clients typically report that an attorney will advertise a
contingency fee, touting it as “discount” compared to other lawyers in the area, and then
in reality charge a ‘sliding scale’ contingency fee rate whereby the client doesn’t qualify
for the low advertised rate.
There was a spate of this type of advertising in 2005 that prompted Bar
Counsel to correspond with several Las Vegas area law firms and request copies of all
related advertisements, and, the firms’ contingency fee agreements. As a result of
these investigations, several advertisements and related fee agreements were modified
under the advice of Bar Counsel. To their credit, the attorneys in this instance
voluntarily complied without need of further disciplinary action, which is often the case
with regard to advertising.
iii) Settlement-oriented firms advertising as aggressive litigators. In
these matters an advertising firm will give the strong impression that the firm will
aggressively litigate cases, often using “fighting” imagery or other terms designed to
imply the firm often and willingly goes to court. However, the experience the clients
have is that the firms’ philosophy and office practices are geared towards settlement,
and in not a few cases, the firm actually by matter of policy refers cases that cannot be
settled to lawyers outside the firm. These are the types of ads which typically include
Enforcement Report, Office of Bar Counsel
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prohibited “dramatic scenes” such as car accidents, ambulances and police cruisers,
and “happy conclusions” with the clients hugging the lawyer after verdict.
In once such instance, a lawyer who advertises heavily opened up a satellite
office in Reno. However, there was rarely, if ever, a lawyer physically present in the
Reno office. Reno clients were enticed by the strong, aggressive imagery in the
advertisements but then found themselves dealing with a paralegal, with a lawyer from
the Las Vegas office on speaker phone encouraging settlement. In this case, after
extensive disciplinary proceedings, the lawyer entered into a stipulation with Bar
Counsel to completely shut down the Reno office and modify the advertising to tone
down the imagery.
One of the ancillary issues evidenced by this category is national marketing firms
which charge substantial fees to sell lawyers pre-packaged “advertising campaigns”
which are not universally compliant in the 50 United States. The marketing company
typically obtains ‘approval’ from a law professor from one state or another under the
sole standard of the ABA Model Rules, without regard to any state-specific
requirements. This will be further discussed in the next section concerning complaints
filed by attorneys and the State Bar.
B.
ATTORNEY AND STATE BAR INITIATED COMPLAINTS.
At its core, the genesis for attorney complaints in this area involves a feeling of
fundamental fairness. Attorneys who comply with the advertising rules can, purely from
a marketing perspective, be at a distinct disadvantage to those who do not. As such,
Bar Counsel is extremely cognizant of the need for uniform enforcement.
i.) Concurrent reporting of complaints as described in section A. All the issues
raised in the previous section about the types of complaints clients tend to file are also
prevalent in the attorney-complainant sector. That is, attorneys also bring to Bar
Counsel’s attention colleagues who advertise (1) in foreign language venues where
the lawyer does not speak the subject language; (2) misleading contingency fees; and
(3) misleading ads about the firms’ experience in court/jury trials. However, because
attorneys have a more in-depth understanding of the relevant rules, there are additional
areas of concern that the Bar sees coming from the attorney-complainant group as
indicated below.
ii.) Phone Book/Yellow Pages. This is a predominant area of concern to the bench,
bar, and the State Bar. The attorney section of the yellow pages continues to grow
exponentially. It also poses a unique problem because with only semi-annual
publication, once a non-compliant advertisement gets in the phone book it stays in
circulation for six months until the next printing.
That being said, normally Bar Counsel will issue “fix it” letters when a
violative ad is discovered or brought to the Bar’s attention. Pulling advertisements often
results in substantial fiscal loss to the lawyer, however most often lawyers voluntarily
Enforcement Report, Office of Bar Counsel
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amend advertising. If an attorney does not agree to remediate, however, then a
disciplinary event is triggered for a screening panel to decide.
In the past, Bar Counsel met with counsel for the phone companies in the North and
South and requested that advertising lawyers be asked to sign an acknowledgment that
‘all ads must be compliant with the relevant rules of professional conduct.’
Effective in 2005, Bar Counsel has implemented a new pro-active policy with regard to
the Yellow Pages whereby a Bar Counsel will be specifically tasked with reviewing each
new edition of the yellow pages and noticing non-complaint attorney advertisers.
iii.)
Drama and suspense. This area, addressed in former SCR 196(5) and (6)/
RPC 7.2, comprises the bulk of complaints filed by attorneys. While not misleading, this
category of advertising is specifically prohibited. The legislative history of this particular
prohibition is to preserve the dignity of the profession, the public perception thereof, and
avoid unjustified expectations of results a lawyer may achieve. Advertisements are not
supposed to go beyond useful, factual information presented in a non-sensational
manner. No scenes may be used which create suspense, or exaggerate, or call for the
need for legal services.
Examples of prior advertisements which have run afoul of this particular
prohibition include cartoons, depiction of car accidents followed by a lawyer giving
clients a check, graphic sounds of car accidents running in the background, and
lawyers depicted as “wizards” or “fairies” solving legal problems. This is just a sample
of the types of advertisements which fall under this prohibition. This is also the area
which might arguably raise the most debate under constitutional concerns, along with
item (iv) below.
iv.) True statements otherwise prohibited: testimonials/jury verdicts. From time
to time, a firm will advertise actual jury verdicts. While “true statements,” there is
authority that supports this is otherwise misleading because it creates an unjustified
expectation of the results that may be achieved. When this happens, there is
generally a furor from the legal community and Bar Counsel often knows about the
advertisement from the day it first appears.
In 2005, Bar Counsel was made aware of just such an advertisement. A firm ran
a full-page print ad that prominently listed specific jury verdicts. Bar Counsel was
deluged with phone calls and made a call to the firm, the partners of which agreed to
meet with the Bar along with the marketing executive responsible for the concept. As a
result of this meeting and to its financial detriment, the firm voluntarily pulled the print ad
and scrapped the entire project. Furthermore, the Bar worked with the firm and
marketing executive so they left with a new, compliant advertising campaign in hand.
This again leads to the discussion of the concept of non-lawyer marketing firms
selling entire ad campaigns to lawyers. Normally, the concept is limited to one lawyer
per geographic area. In fact, lawyers will attend conferences to bid on just this type of
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service. However, the marketing executives simply don’t take into account parochial
interests and rules.
Another area of complaint (particularly in non-English mediums) is the use of
testimonials, often compelling and sentimental. Again, while truthful, the use of
testimonials is prohibited.
3.
Non-public enforcement efforts 2005-2006
 In March 2005, thirty (30) lawyers known to the Office of Bar Counsel to
advertise frequently were asked to provide their ads for the past six months.
All complied, and approximately one quarter were not compliant in some
aspect. The attorneys were apprised and the advertisements amended.

During the course of the year, the Office of Bar Counsel reviewed
approximately one hundred advertisements in all media forums submitted by
the lawyer for pre-approval. All Bar Counsel and Assistant Bar Counsel
participate in this process. Some of the specific ads that were discontinued
voluntarily:
1. Using “expert” when not qualified as a specialist;
2. Advertising a specialty issued by another state that does not
qualify for specialization in Nevada;
3. Boxing gloves;
4. Sharks on billboards;
5. Trade names that did not identify the lawyer;
6. Advertising “no court/no points” in traffic ticket matters without
the disclaimer “in most cases”;
7. Lawyer personified as a magic fairy “poofing” people from jail;
8. Specific jury verdicts;
9. Client testimonials that the lawyer “solved all problems” and “got
a lot of money” and
10. Superlative ads such as “the best lawyer” in a specific practice
area.

An assistant bar counsel is now assigned to review each new yellow
pages and contact each lawyer with a violative ad. If the ads are not
changed in the 2006 book, grievance files will be opened.

Assistant Bar Counsel David Clark, who handles unauthorized practice of
law matters, reviewed approximately forty to fifty ads last year, including
Internet web pages, for compliance with the multi-jurisdiction, UPL, and
advertising rules. A common error that out-of-state lawyers who are
legally practicing here frequently make is not indicating the state where
they are licensed, that is the limitation of practice.
Enforcement Report, Office of Bar Counsel
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
Bar counsel summoned and met with a lawyer and his representative
regarding a commercial which depicted an accident scene, following by a
hospital scene, a law office, and a court room. The scenes ended with the
statement “I’ll settle your case.” The lawyer was advised the accident and
hospital scenes had to be removed immediately under SCR 196. This
lawyer was also asked to substantiate exactly how many cases go to
court. When it was admitted the lawyer had not been to court once in the
past twelve months, he was required to pull those court room scenes and
did so voluntarily.

Bar counsel has been meeting with a local lawyer and his counsel on the
issue of soft testimonials. The lawyer agreed to hold the advertisements
pending the rule recommendations from this committee. This is an
ongoing matter and both sides have briefed the issue. If the Committee’s
recommendation on RPC 7.1 (d) is approved, some of the soft
testimonials may be allowed.

Several correspondence files were opened as a result of the misleading
contingency fee advertisements discussed in subsection 2. Each of those
lawyers was requested to, and provided, a copy of his/her fee agreements
and made all changes requested by the Bar.

In late September, upon request Bar Counsel met with a group of
plaintiff’s attorneys who asked to meet and discuss several advertising
concerns the collective group had.

The Office of Bar Counsel issued a policy decision and responded to
several inquiries concerning out of state lawyers advertising in social
security disability practice.

Approximately fifteen letters were sent regarding web pages or email
solicitations. They were all either discontinued with no response to the
Bar or amended.

The new bankruptcy laws have changed the way lawyers can advertise.
In addition to educating ourselves on those changes, the office had
several investigation files which delved into whether a bankrupty lawyer
was charging the fees he advertised and contracted. ( A similar formal
case in going forward this year that was originally filed in 2004 as well.)

Litigation was commenced against an out-of-state tax lawyer, a/k/a the
“20$ settlement” ads. As a result, through counsel she advised the ads
were being pulled on all local channels. However, a few continued to run
through a miscommunication with the media contact and several more
letters were sent until all the violative ads were pulled.
Enforcement Report, Office of Bar Counsel
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
There was a grievance file which centered on a lawyer who placed an ad
for potential witnesses in an ongoing matter against a doctor to come
forward. The doctor alleged it was in fact a thinly-veiled solicitation for a
class action case against him. The reviewing panel ultimately ruled that
there was insufficient evidence to support the claim, although the lawyer
did voluntarily pull the spot to avoid any potential problems with the Bar.

A Las Vegas lawyer opened up an office in Reno that did not have a
lawyer on staff. All in-person contact was done with a non-lawyer, who
would get a lawyer on the phone with the client when needed. As a result
of disciplinary proceedings, the lawyer agreed to close the Reno office
permanently.

A client informed the state bar that after an emergency room visit she
received solicitation materials in the mail. Because it appeared there
might be a capping concern, the bar immediately opened a grievance file
and interviewed all the relevant parties. Ultimately a screening panel ruled
that the materials were not related to the emergency room visit, but
nonetheless did not have the required disclaimers. A letter of caution
issued.

A complainant indicated she had found a particular attorney through a
Filipino newspaper. Although her matter was prosecuted on other issues,
the lawyer in question was in violation of the terms of probation from a
prior discipline event by virtue of these advertisements and was brought
back for charges on probation violation. That matter remains pending and
included other issues.

A prominent law firm had a full-page ad which listed jury verdicts. The ad
initiated many calls to Bar Counsel, who met with the partners and their
advertising agent. It turned out there was an extensive multi-media
campaign coming out based on the same concept. As a result of this
meeting with the Bar and at significant financial cost, the firm scrapped the
campaign and started over. Bar Counsel assisted in the creation of the
new ads to ensure compliance.
I do note that the Bar’s database is not set up to track these matters to the level
that we aspire to in the future. For example. we take anywhere from ten to forty ethics
calls per day on the Ethics Hotline, and those calls can often be quick advertising
approvals that aren’t logged anywhere. However, since the inception of the SCLA we
have attempted to keep track of informal resolutions that may not make it into the
statistical records we do have. This report should nonetheless give the committee a
good idea of how enforcement is applied under the current system.
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