Thursday • August 31, 2006

Update: Is the Kentucky Advertising Commission limiting advertisements about ComAir 5191 consistently?

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Today the Lexington Herald-Leader reports that Kentucky's Attorney Advertising Commission has decided that certain ads in yesterday's edition of the paper did not comply with Kentucky's rules regarding the advertisement of legal services.  The ads all related to the crash of ComAir Flight 5191. One of them advertised the services of a law firm with an office in Lexington.  The others were for law firms in New York and Texas.  The Commission has apparently issued "non-compliance" notices to each of those law firms.

That made me wonder if any other firms are advertising their services in connection with the crash of ComAir 5191. I therefore ran a Google search on the words "5191 lawyers".  Sure enough, the first search result is a special page on the web site of Schmidt & Clark, a "national" law firm based in Washington, D.C. and Dallas, Texas.  That page states in part:

"To the friends, family and those affected by Comair Flight 5191, we at Schmidt & Clark offer our most sincere condolences.

"Schmidt & Clark | A National Law Firm is investigating and will be filing individual lawsuits on behalf of family members and victims affected by Comair Flight 5191.  

"If you have been affected by this horrible tragedy; we would like to speak with you and urge you to contact us immediately. You will most likely be entitled to compensation for the loss of a loved one."

Those statements are remarkably similar to the statements that appeared in the newspaper ad for the law firm in Lexington.

According to a related story in the Louisville Courier-Journal, the Advertising Commission concluded that all of the newspaper ads "broke a rule that bans advertising to families of victims of a disaster within 30 days of that disaster."  It thus appears that the Commission relied in part on SCR 3.130(7.09), which is titled "Direct contact with prospective clients".

The Rule places certain restrictions on any "communication" from a lawyer "soliciting professional employment from a prospective client known or reasonably believed to be in need of legal services in a particular matter, and with whom the lawyer has no family or prior professional relationship." One of those restrictions is that no such communication shall be "sent" to "prospective clients who have been involved in a disaster" for a period of 30 days after the disaster occurs.

If a newspaper ad by a Lexington law firm violates the Rule, does the web site of a "national" law firm violate the Rule as well?

In my opinion, neither of them violates the Rule because neither of them constitutes direct contact with prospective clients, within the meaning and intent of the Rule.  They are both advertisements.  As such, they are subject to other rules and regulations regarding the advertisement of legal services.  However, SCR 3.130(7.09) relates specifically to "direct contact with prospective clients."

The Advertising Commission has apparently taken a different view, at least for the purposes of issuing non-compliance notices.  However, if the matter is referred to the disciplinary system, one important question will be whether SCR 3.130(7.09) even applies to newspaper advertisements.

The initial question, however, is whether there is any reason to treat a newspaper ad differently than a law firm web site.