This week on Weird and Wacky Wednesdays: Updates in the world of legal advertising
This week for Weird and Wacky Wednesday, we are back to considering legal advertising. There are significant rules around legal advertising. If you go back fifty years, legal advertising was more or less forbidden, but because of court challenges, lawyers can now advertise. There are very specific rules and of course lawyers are great at finding loopholes. Constraint can provide the soil for significant creativity. The creativity of lawyers makes legal advertising always an interesting subject.
Like realtors, lawyers often end up on billboards or have their image plastered on the back of a bus. For years my colleague, Paul Doroshenko, was pictured on billboards around BC. A few years back I had my image on the back of buses in the Lower Mainland and on posters in bus shelters. It seemed like a good idea at the time. Drivers got to look at my face while being stuck in traffic. Every so often, someone tries something slightly different and it turns into a fight.
The Syracuse Airport Victory
Megan Thomas is a lawyer who handles sexual harassment and employment law claims. She had a clever idea: put posters in the airport that would speak about how business trips can potentially turn into sexual harassment. She approached the airport in good faith and came up with the content for the billboard. The airport authority reviewed the ad and rejected her proposal. Her tagline was: “When HR called it harmless flirting, we called it Exhibit A.”
This is a clever trope. It serves both as a warning and it informs a potential litigant that they may have a claim. But that is not how the airport authorities saw it. They rejected the ad because they said it was too harsh in tone, could be offensive to men, and was misleading.
In Canada, lawyers are often expected not to sue. Some members of the profession feel that whenever a lawyer is a litigant, it damages the reputation of the justice system. We are told we should negotiate or accept being a victim. They have a different approach in the United States. Megan Thomas simply sued the airport authority.
In her lawsuit, she alleged that the airport was violating her right to freedom of speech. Just this last week, we learned that Ms. Thomas was successful. Judge Anthony Brindisi called the airport’s logic “nonsense.” He pointed out that their Chick-fil-A ads featuring talking cows were technically “misleading” too. No one actually thinks cows can talk. It is true that work trips may end in harassment. That is not misleading, it is informative. Whether or not men are offended is irrelevant when the ad is not misleading.
Ms. Thomas has been very busy as this has been all over the news this week. As part of the judgment, she now has much larger posters in the airport to take advantage of the notoriety. It is one thing to put up a billboard. It is another thing for the billboard to go viral.
Think Like a Criminal
Daniel Muessig is expected to be released from jail this month after serving 60 months following his guilty plea to conspiracy to distribute marijuana. That is not particularly interesting unless you know that Muessig happens to have been a lawyer who once posted a video advertisement where he explained that, like his clients, he thinks like a criminal. In his viral 2014 ad, he famously said, “I may have a law degree, but I think like a criminal.”
The Bar Association did not like that ad. He later explained he was just a junior lawyer trying to build a clientele. I thought it was creative and had no problem with it. It was funny and tongue-in-cheek, but it sure came back to bite him when he was busted by the FBI.
During sentencing, prosecutors used his own words against him. They argued that he had indeed employed his ability to “think like a criminal” to run an illegal business. On March 8, 2022, he was sentenced to five years in prison. I would note that thinking like a criminal is not the best strategy for a criminal lawyer. It is better to think like a lawyer. Muessig is no longer a lawyer, but he has achieved the status of criminal.
Valentine’s Day Divorce Contest
This story is from 2012, but it is still one of my favourites. Kevin Washburn, a lawyer in Tennessee, wanted to be busier. To that end, he ran a radio promotion leading up to Valentine’s Day where he offered a prize. People were invited to call in to describe why their marriage should end. The prize was free divorce legal services.
The local bar was not impressed. The Bar Association criticized his ads, saying they were undignified and that they trivialized marriage. Washburn justified his ads on the basis that divorce is expensive and some people remain in bad situations due to the cost. He framed it as an access to justice issue.
His contest completed despite the criticism and there was no formal discipline. Washburn did not run the same contest the following year, but he hardly needed to because the story became viral (before we used that term as we do now). It remains an example frequently cited in discussions of legal advertising boundaries. I imagine he became busy enough because of that ad that he did not have to do much advertising in the years that followed.
That is it for this week. We will see you next Wednesday for more weird and wacky legal stories.
