LITTLE ROCK, Ark. (Legal Newsline) - Major personal injury law firm Morgan & Morgan recently made its arguments for dismissal of a lawsuit that accuses it of violating attorney advertising rules in Arkansas.
The firm on Aug. 28 filed a motion to dismiss the lawsuit of Jody Schackelford, himself a personal injury lawyer, who sued the firm July 17. He alleges Morgan & Morgan's use of client testimonials and dramatizations in its advertisements breaches Arkansas Rule of Professional Conduct 7.2, which prohibits such content to prevent misleading and deceptive practices.
He also made a claim under the Federal Trade Commission Act for misleading advertising. But he has no authority to do so, Morgan & Morgan says in its motion, because there are no private causes of action in that law.
"Regardless of whether this Court possesses subject matter jurisdiction, which it does not, Plaintiff's claim is predicated on a purported violation of the FTCA," the motion says. "Defendant did not violate the FTCA."
The motion must have been persuasive, because Shackelford filed an amended complaint a day later that removed claims under the FTCA. Morgan & Morgan will need to file another motion to dismiss that will focus on claims under Rule 7.2 and the Lanham Act, which deals with false advertising.
Shackelford's complaint points to TV, radio and online ads from Morgan & Morgan that include client testimonials and dramatizations. He says Arkansas Rule of Professional Conduct 7.2 prohibits clients from being featured in advertisements.
The rule says ads can include photographs, voices or images of lawyers who are members of firms who will actually perform the advertised services - "Clients or former clients shall not be used in any manner whatsoever in advertisements. Dramatization in any advertisement is prohibited."
Still, Morgan & Morgan ads do just that, even featuring dramatization disclosures on the bottom. Another featured "Jason," referred to as "Actual Client."
"These testimonials mislead Arkansas consumers by implying that client testimonials and dramatizations are an acceptable form of attorney advertising in the state, thereby creating a false impression of compliance with local professional conduct rules," the lawsuit says.
To establish standing, Shackelford says Morgan & Morgan ads have led to a loss of potential clients for his practice and damage to his reputation "due to perceived inferiority compared to Morgan & Morgan's services."
However, as with the FCT Act, Morgan & Morgan argues there is no private cause of action under Rule 7.2. The gripe would be suited for the Arkansas Supreme Court Committee on Professional Conduct, it says.
"Notably, Rule 7.2... is not intended to prevent attorneys from, purportedly, misleading consumers or potential consumers of legal services as to the status of an advertisement's compliance with the Arkansas Rules of Professional Conduct," the firm says in its motion.
"In fact, it is likely that most lay persons are not familiar with either the existence or substance of the (Rules), nor are lay persons likely to consider whether an advertisement complies with those rules."
Given that the rules are intended to protect consumers, and Shackelford has not alleged any harm to consumers, the case should be tossed, Morgan & Morgan said. It claims Shackelford is trying to "shoehorn" a claim for interference with a business by citing Rule 7.2.