English is my second language. “El Abogado Habla Español” or “the lawyer speaks Spanish.” And since I can simultaneously chew “Chiclets” and read Spanish, I intermittently read some of the local Spanish-only periodicals around town to catch up on news, opinions, doings, and farándulas.
For some time though, I’ve been amazed at what passes for ethical foreign language lawyer advertising. And I know, I should fix my amazement-meter since “ethical lawyer advertising” is oxymoronic – – – in any language.
Several years ago, I complained about misleading Spanish-language lawyer advertising to the Nevada Bar. To their credit, Nevada Bar Counsel was already aware of the problem. Indeed, in a March 2006 Nevada Office of Bar Counsel Enforcement Report, the bar said that lawyer advertisements in foreign language newspapers was “fast emerging as an egregious problem.” See “State Bar of Nevada Study Committee on Lawyer Advertising.”
One of the more recent noteworthy instances of foreign language misdirection occurred in Nevada. It was the disciplinary case of Tony “the Tiger” Lopez who I blogged about at “On subduing prowling “Tigers.” Lopez got in trouble for running Spanish-language radio advertisements, which claimed “if you have had an auto accident, by law you have the right to receive at least fifteen thousand dollars for your case.”
To ward off the disciplinary hammer, he asserted probably with a straight-face that his radio commercials were a public service. He was educating motorists and consumers about Nevada’s statutory $15,000 minimum auto liability insurance requirement.
Of course the Nevada Supreme Court didn’t buy the ‘woof tickets’ “Tiger” Lopez was selling. Instead, the Court said he’d “grossly misstated the law” when he advertised to Spanish-speaking listeners about their “right to receive at least $15,000.”
The rule on lawyer advertising.
Most state bars, however, are ill-suited to police the ethical rule on “communication concerning a lawyer’s services” i.e., advertising, Rule 7.1.
The basic rule is fairly straightforward. It says, “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”
In the early days, jurisdictions tried to knee-cap lawyer advertising. “It demeans the profession,” they snottily said. The most notable bludgeoner was Arizona, arguably also still the leading ‘nanny-state’ bar [other than Florida].
But talk about unintended consequences. Thanks to Arizona’s overreaching, “Bates v. State Bar of Arizona” opened the advertising flood gates when the U.S. Supreme Court ruled against Arizona’s total ban on lawyer advertising because it violated the free speech guarantee of the First Amendment.
Today, lawyer advertising is permissible so long as it’s not “false, deceptive, or misleading.” But it’s hard enough to keep track of the advertising blarney in English let alone the foreign language circumvention.
This is because despite the lip service state bars pay to diversity in the profession, very few of them ‘walk the talk.’ They’re ill-equipped to deal with non-English speaking consumers in the communities they supposedly ‘protect‘ from their members.
“Habla, cara de tabla” (1)
The Nevada Bar has said the most frequent offenders troll the personal injury and immigration waters. This is likely true in other jurisdictions, including Arizona and other southwestern states with sizable non-English speaking immigrant pools.
Take, for example, personal injury lawyers who claim “We recover more money for our clients!” As compared to whom? Or how about the impression implied by Spanish-language display ads with the smiling Anglo lawyer surrounded by a cluster of Hispanic props to insinuate without saying so that the lawyer speaks Spanish? (2)
And what about the Arizona law firm advertising in Spanish as“specialists in immigration cases” when immigration is not among the 8 Certified Specialists identified by the State Bar of Arizona?
Lowest price guarantees.
And assuming that a law firm could even get such information without running afoul of antitrust laws, how could a lawyer guarantee the lowest price? And this is even acknowledging the recent creation of a purported consumer comparison shopping website called “AttorneyFee.com.”
“My Shingle“ Blogger Carolyn Elefant calls the concept “idiocy” and a “downright stupid idea.” Can’t disagree. See “An Attorney Listing Site to Avoid If You Want To Avoid Ethics Problems.”
Not much vetting by the bars.
Since they don’t all require lawyers to submit copies of their advertisements for review, state bars track advertising violations on an exception basis. Assuming they have the competence and diligence, it’s a good idea in the case of foreign language advertisements.
Some do. For example, New York Rules of Professional Conduct Rule 7.3(b),(c) states, “All solicitations directed to a recipient in the State of New York must be filed with the appropriate disciplinary committee. The filing shall consist of a copy of the solicitation, a transcript of the audio portion of any radio or television solicitation and, if the solicitation is in a language other than English, an accurate English-language translation.”
Louisiana has a similar requirement at Rule 7.7 “Evaluation Of Advertisements“ as does Nevada, which requires that “Any public media advertisement or solicitation communication in a non-English language shall be accompanied by a complete, accurate English translation” under “RPC 7.2A Mandatory Advertising Filing Form – State Bar Of Nevada.
The problem, though, is not limited to the Spanish-speaking. Lawyer advertisements and phone directory display ads are also directed at Vietnamese, Korean, and Chinese communities. Lawyers look for clients wherever they can find them, leaving few stones unturned.
But until state bars hire foreign language speaking bar counsel; pay better attention; and are backstopped by bilingual lawyers who give a damn, the “false,“ the “deceptive,” and the “misleading” will continue.
(1) “Speak, wooden face.”
(2) Conversely, there’s a California Rule that presumes a violation of Rule 1-400 when there’s “A “communication” which states or implies that a member is able to provide legal services in a language other than English unless the member can actually provide legal services in such language or the communication also states in the language of the communication (a) the employment title of the person who speaks such language and (b) that the person is not a member of the State Bar of California, if that is the case.“