Louisiana Life
The Louisiana Attorney Discipline Board has held (or recommended) that the Office of Disciplinary Counsel failed to prove any ethical violation in a Super Lawyers advertisement.
Another ad was not properly charged
The Board agrees with Respondent that the issues to be considered in connection with the charged rule violation in this matter are limited to the profile which appeared in Louisiana Super Lawyers magazine. ODC’s arguments related to Louisiana Life magazine were not raised until the hearing in this matter and should not be considered. The only advertisement referred to ODC by Mr. Lemmler was the profile which appeared in Louisiana Super Lawyers magazine. Louisiana Life magazine was not mentioned by ODC in its offer of admonition, in the formal charges, or in ODC’s pre-hearing memorandum filed three weeks before the hearing. When disciplinary counsel began questioning Respondent about Louisiana Life at the hearing, Respondent’s counsel immediately objected to the line of questioning as an expansion of the formal charges in violation of due process. Furthermore, ODC did not introduce a copy of any advertisement relating to Respondent’s firm which may have run in Louisiana Life magazine. While the evidence does include an order for a profile in Louisiana Life signed by another person in Respondent’s firm, there is no evidence that such a profile actually appeared in any print edition, or other medium, of Louisiana Life magazine. Further, there is no evidence that any profile which may have appeared in Louisiana Life magazine was identical to the profile published in Louisiana Super Lawyers magazine that is in evidence. Additionally, Respondent was not familiar with Louisiana Life
magazine and had no personal knowledge as to whether or not his firm’s profile appeared in the magazine. Considering all of these circumstances, the Board finds that Respondent was not given fair notice of a violation based on an allegation related to a profile of Respondent’s firm in Louisiana Life magazine and that it would be unduly prejudicial to Respondent to allow ODC to pursue such a violation in this proceeding.
As to Super Lawyers
While the advertisement/profile was not exempt under the “safe harbor” provisions of Rule 7.2(b)(1) or as an entry in a law list under Rule 7.8(c), the advertisement was exempt from prefiling under Rule 7.8(d). Respondent testified at the hearing that it was his understanding that the Super Lawyers magazine was circulated only to lawyers. T.197. The evidence relating to the placement of the advertisement/profile at issue confirmed that the Louisiana Super Lawyers magazine was mailed only to lawyers. The materials in Respondent’s file relating to the placement of the advertisement in the January 2020 Louisiana Super Lawyers magazine indicated that the print distribution of the magazine was “to more than 15,000 attorneys.” Ex. ODC-3, Bates p. 0013.15
The Board recognizes that ODC presented sales information obtained from the internet related to a Super Lawyers app which stated that the Super Lawyers magazine “is distributed to attorneys in the state or region and the ABA-approved law school libraries.” Ex. ODC-8, p. 0029.16 However, the clear and convincing evidence shows that the January 2020 Louisiana Super Lawyers magazine in which this advertisement was placed was mailed to lawyers. The materials in Respondent’s file relating to the advertisement in question only mention distribution to lawyers. The general internet advertisement which indicates that Super Lawyers is mailed to law school libraries does not constitute clear and convincing evidence that the particular advertisement at issue here was included in a magazine that was mailed to law school libraries. Further, precluding the exemption because the magazine was distributed to law school libraries would be too fine a distinction as law schools certainly include attorneys and can reasonably be considered part of the legal profession and not consumers.
(Mike Frisch)