A lot has happened since my earlier update on the ongoing plan to revise the rules that govern lawyer advertising in Texas. In addition to a change in timing for a final vote, more than 200 pages of public comments have been submitted by attorneys from across the state.
UPDATE: For the latest on the ad rule changes, see our October 24, 2019 blog post, which addresses some of the concerns lawyers raised in this article.
The most significant development is the decision by State Bar of Texas’ Committee on Rules and Referenda (CDRR) to scrap the original proposal and issue a new one based on the committee’s work and public comments.
The comment period has now been extended through August 6. Attorneys and members of the public can provide their impressions directly through the State Bar website at this link or at two public hearings scheduled for June and July. The new plan is for the CDRR to conduct a final vote in August or September.
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Trade Names Dominate Public Comments
Although there were several suggested rules revisions in the CDRR’s original proposal, I correctly predicted that the plan to allow Texas lawyers and firms to use trade names would be the dominant topic. And boy was it ever.
Several attorneys supported the idea of using trade names but most people who weighed in say it is a bad idea. Those in favor typically argued that they were put at a competitive disadvantage by not being allowed to use trade names. Those on the other side often went to great lengths to explain why they think trade names will hurt the profession.
This Dallas lawyer cuts right to the chase:
“‘Big Swinging Dick Law Firm – What in these rules would prevent it? Our profession has a very poor public image as it is, and the range of offensive but not misleading trade names is vast. Sticking with the names of living or deceased firm members at least eliminates the prospects of offensive, silly and demeaning names.”
This San Antonio attorney is glad he’s almost retired:
“The use of trade names will allow lawyers to practice under names such as ‘The Gladiator Firm’ or some other such silliness. If this is the trend for the profession, I am glad I am nearing the end of my career. I urge you to please keep some vestige of professionalism remaining in this noble practice by not allowing the use of trade names.”
This practitioner from McAllen likens trade names to auto dealerships:
“I am opposed to the use of trade names by law firms. Billboards and TV advertisements promoting the Law Giant or the Hammer are bad enough. Allowing the use of trade names by law firms opens the gates to even seedier advertising. We aren’t competing to sell the cheapest car, we are providing an honorable service.”
Fear of his peers’ imaginations is behind this San Antonio lawyer’s opposition:
“There is no end to the imagination of some lawyers, and many of the trade names we are going to see in the future as a result of such a rule will almost certainly be in poor taste and at least arguably misrepresentations of the capabilities of the lawyers.”
As you can see, this is a hot-button issue that I predict will only get hotter if the CDRR decides to include a similar recommendation in its revised proposal.
Legal Specialist Language Hotly Debated
The planned change that generated the second-largest number of comments is the notion of allowing any attorney to label themselves as a “specialist” even if they have not been Board Certified by the Texas Board of Legal Specialization, which is disallowed under the current rules.
Unlike the trade names issue, which drew comments from both sides, the idea that any lawyer can claim they are a specialist was overwhelmingly condemned by everyone who submitted a comment on the topic.
This opinion from a Conroe attorney was echoed by many:
“I believe that this is misleading to the public and would permit someone to advertise that their primary practice is civil trial law or personal injury trial law when they have never tried a case to verdict ever. Some rational means needs to be provided to allow consumers to appreciate the distinction and, as worded, the change does not, and I am therefore opposed.”
Allowing any Texas lawyer to advertise themselves as a specialist may make it into the CDRR’s revised proposal, but expect this issue to be the subject of much debate and many more public comments before the final vote.
Hidden Gems in Public Comments
While the State Bar of Texas won the right to regulate lawyer advertising more than 20 years ago following a hotly contested federal trial, some attorneys are still apparently sore about the Bar’s oversight.
The following public comments will not cause the Bar to ditch the rules, although I thought the perspectives were worth sharing.
This Dallas lawyer thinks website approvals are basically a scam:
“I am concerned about continued application of mandatory fees for reviewing lawyer websites and any changes to those websites. I believe this is perceived as little more than a money-making opportunity for the Bar. If a website is deceptive it should be reported as such and dealt with in the disciplinary system.”
This Austin attorney invokes George Orwell to protest the idea of being required to submit any advertising for approval:
“Both the current and proposed rules effectively assume that without the oversight of the State Bar, Texas attorneys cannot and/or will not comply with advertising rules. This rule wastes unnecessary time and resources. The rule perpetuates the unjustified notion that, absent oversight by the Big Brother Bar, Texas attorneys will run amok of ethics and the disciplinary rules.”
I hope this post has been helpful for anyone who has not had the time to personally review the progress on the pending revisions to the advertising rules. Be sure and check back in during the coming months for future updates as the process moves toward a final vote later this summer.
Bruce Vincent is a writer and editor who was the only reporter to provide gavel-to-gavel coverage of the federal trial that resulted in the lawyer advertising rules from the State Bar of Texas. If you or your firm are having trouble deciphering what the rules allow, contact Bruce at firstname.lastname@example.org for more information about how he can help.