Lawyer Advertising Slam Down of South Carolina Office of Disciplinary Counsel
Note: a previous version of this post suggested that the South Carolina State Bar was behind efforts to prosecute this ad and that bar dues were used for the investigation and market survey discussed below. We thank Leigh Thomas of the South Carolina Bar for bringing to my attention that it was the "Office of Bar Discliplinary Counsel," not the State Bar of South Carolina that funded the prosecution. So no bar dues were used to fund the failed prosecution. Thanks , Leigh, for being a reader of this blog and clearing that up. This is one of the more remarkable efforts to squelch good lawyer marketing. Remarkable because of the breadth of resources wasted chasing down an anonymous complaint about an attorney's TV ad that was benign.
This is one of the more remarkable efforts to squelch good lawyer marketing. Remarkable because of the breadth of resources wasted chasing down an anonymous complaint about an attorney's TV ad that was benign.
Those responsible shoud apologize to the people of South Carolina for the money wasted on one of the most inane investigations into a lawyer's ad ever.
Its pretty scary to think that a group would be devoting such resources on such bad logic...and, that it appealed to the Supreme Court of South Carolina, (thereby wasting more time and resources for everyone) a decision by the “Hearing Panel of the Commission on Lawyer Conduct.”
According to an opinion released October 12, 2009, by the Supreme Court of South Carolina, an “anonymous” member of the South Carolina State Bar complained about this worker's compensation ad:
It's not your fault you were hurt on the job, but I know you're afraid to file a job injury a job injury claim. You're afraid your boss won't believe you're really hurt-or worse, that you'll be fired. We'll protect you against these threats-these accusations-and work to protect your job. I'm not an actor. I'm a lawyer. I'm [name of attorney.] Call me and we'll get the benefits you deserve. The [name] law firm.
The South Carolina Office of Disciplinary Counsel thought the ad was deceptive because:
"it created the false impression that by retaining Respondent an injured employee would not lose his or her job by filing a workers compensation claim."
The South Carolina Supreme Court ultimately slammed dunked the prosecution of the ad, saying, essentially, “we read the same ad and we don't think its misleading in the least.”
What is scary is that the Office of Disciplinary Counsel hired a market survey firm to try to put “objective evidence” into the record about how “deceptive” the ad was. The survey was a sham and it is shocking that the members of the “committee” thought this was a good use of resources.
Briefly, the survey sought to determine whether the ad “created an unjustified expectation that a claimant would not be fired from his or her job if they filed a worker's compensation claim.”
Here's why it was a sham: They gathered 30 people as the “sample.” They showed the “sample 5 television ads. Two of the ads were the respondent's. The respondent's ads were the only ones that referred to protecting a job at all. Each of the ads shown the “sample” had different main points in that they did not all discuss employment issues.
The survey participants then concluded (surprise, surprise) that the respondent's ad “conveyed the message that the firm could protect them from losing their jobs more than the other ads.”
Bottom line, multiple hearings, expert witnesses, money spent on a “marketing survey” and an appeal to the Supreme Court of South Carolina – all resources paid for by citizens of South Carolina and wasted by Office of Disciplinary Counsel. Way to go!