Fall Newsletter 2005

Protection the Old Fashioned Way

As a means of advertisements, attorneys distributed condoms with a wrapping that includes "punish" phrases, like "protecting seamen the old fashion way" and "matchless protection."

Is this form of "media" advertising allowable?

According to the ABA Commission on Advertising, Lawyer Advertising News, Vol. 3, No. 2 (Nov. 1993), this type of advertising (which actually happened in Hawaii) should be judged not on the dignity of its format, but on the honesty of its content.

While DR 2-102(A) of the previous ABA Model Code required that communications about legal services be "dignified," that requirement was not carried over to the current Model Rules. Thus, however odd and tacky, this advertisement was held not to violate ethical standards because the message was not false or misleading. The article quotes a member of the Hawaii Bar Association as saying that,

Dignity, taste, and humor cannot be regulated by our (Hawaii's bar association). It is only in the area of factual misrepresentation to the public that we are obligated to get involved and impose appropriate prophylactic measures.