In a classic example of Eric Turkewitz’ famous aphorism, “outsource your marketing, outsource your ethics,” a North Carolina attorney has just been disciplined for a number of sloppily-worded claims on her website. The Grievance Committee of the North Carolina bar did not take kindly to attorney Stephanie Villaver’s “dog ate my homework” defense blaming her website designer. The fact that she may have tried to cover up her own inattention to the matter surely didn’t help things, either.
However, my interest is in the advertising claims that formed the basis of her discipline. On her website, Villaver stated that:
- She is “Jacksonville’s best car accident claim attorney.”
- She is the “Jacksonville, North Carolina’s personal injury specialist.”
- Her team “specializes in traffic ticket matters.”
- She can get a person “the settlement you deserve.”
The grievance committee found that each of these statements violated the Rules of Professional Conduct, to wit and in order:
- A claim that cannot be factually substantiated.
- Implication that an attorney is a certified specialist.
- Ditto.
- Guaranteeing results.
Again, it’s likely the case that the attorney’s evasive and non-responsive handling of this matter was the primary reason the Bar lowered the boom on her. Had she immediately corrected the website, there’s almost no chance she would have been disciplined.
But the phrases in question – should they really form the basis of discipline? The first and the fourth are not “claims that can be factually substantiated” or “promises of results;” they are nothing more than the same vacuous puffery that every business that has given up employing any creativity in marketing uses in a half-hearted attempt to reach new customers. These are anything but effective advertising messages. But that’s also why they shouldn’t be regulated by the bar: they aren’t going to cause any consumer confusion. Every consumer knows how empty of meaning these terms are.
As for the use of the dread “specialist” term, North Carolina has fallen for the trap of expanding its regulatory reach beyond its constitutional limitations. For although NC’s rule in this area (7.4) prohibits attorneys from indicating they have been certified as specialists in a given area unless they have such certification (a restriction the Supreme Court found lawful in the Peel case), the comments to the rules expand it to make ALL uses of the term “specialize” verboten – even when there is no implication that a third party has certified the attorney in that area.[ref]Yes, the comment to the rule states that “the use of the word “specialize” in any of its variant forms connotes to the public a particular expertise often subject to recognition by the state;” that, I daresay, is larding far too much significance onto a term synonymous only with focus and concentration in a particular subject.[/ref]
I don’t feel that badly for an attorney who didn’t pay attention to her marketing and then failed to quickly address the problem. But I do wish the states would devote their enforcement resources to those engaging in real, consumer impacting abuses – and not those who simply resort to hackneyed marketing cliches.