IN RE: MICHAEL C. PALMINTIER (2023)

Denied.

Considering the particular facts of this case, I find the disciplinary board correctly dismissed the formal charges against respondent.

Ensuring lawyer advertisements meet a certain standard of professionalism is a challenge. As the United States Supreme Court has recognized,¹ the First Amendment of the United States Constitution places significant limitations on regulating lawyer advertising. Such limitations are appropriate because limitations involve freedom of speech. While we can regulate those advertisements that are false and misleading, it is difficult to regulate those that some find simply distasteful. Every day the public is bombarded with advertisements for a wide variety of products and services that may cause many to cringe, particularly if viewing the advertisements with young children and family members. But “cringe worthiness” is too amorphous a standard. Because our federal and state constitutions ² rightfully protect freedom of speech, there is some speech we must tolerate, and even defend, so that the government does not unjustifiably burden the right to speak as we wish. In the commercial arena, the public remains free to choose, or not to choose, a product or service someone is selling based on how the product is advertised.

Given the totality of circumstances, a sanction against respondent relative to the particular advertisement in this matter is not warranted. At most, the advertisement involved a de minimus violation, if there was any violation at all.³ This particular advertisement was unquestionably professionally drafted and represents what we would hope lawyers who advertise would aspire to produce, yet respondent is being singled out for what can be perceived as no more than a technical violation. I fail to find this violation meets the “clear and convincing” standard required for proof in an attorney advertising matter. The issues raised in this matter also point out the possible need to re-evaluate the Rules of Professional Conduct relative to lawyer advertising to clarify the circumstances under which an advertisement is exempt under Rule 7.8(d) as “[a] communication mailed only to existing clients, former clients, or other lawyers.”

FOOTNOTES

1.   See, e.g., Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988).

2.   See U.S. Const. Amend. I; La. Const. art. I, § 7.

3.   The disciplinary board concluded that the Super Lawyers publication was mailed only to lawyers and therefore exempt from pre-filing under Rule 7.8(d) of the Rules of Professional Conduct. Furthermore, although the Office of Disciplinary Counsel argued the Rule 7.8(d) exemption does not apply because his firm's profile appeared in the general interest Louisiana Life magazine, there is no evidence in the record that the profile appeared in any issue of that magazine.

Weimer, C.J., concurs and assigns reasons.