Thursday, April 24, 2008

Attorney Ads Not Subject to Heightened Scrutiny Under Colorado Law

This posting was written by Mark Engstrom, Editor of CCH State Unfair Trade Practices Law.

Attorney advertising was not subject to a heightened standard of scrutiny under the Colorado Consumer Protection Act (CPA), the federal district court in Denver has ruled.

Neither case law nor the Colorado rules of professional conduct supported a special standard for attorney advertising. In fact, the Colorado Supreme Court’s decision in Crowe v. Tull (CCH State Unfair Trade Practices Law ¶31,147) stated precisely the opposite: “[the] potential for consumer targeting demonstrates the need for the same protections against deceptive legal advertising as exists for other purveyors of goods and services.”

Moreover, rules governing attorney ethics had no bearing on the question of whether an advertisement was misleading for purposes of the CPA, the court stated. This was one of the major points of Crowe, which explained that “[w]hile safeguarding the public against consumer fraud may at times be an ancillary consequence of the disciplinary system, its rules and remedies are not tailored to that specific purpose.”

If the ethics rules warranted a heightened CPA standard for attorney advertising, the Crowe court would have said so when it considered the effect of the ethics rule at issue, the court observed.

In this instance, the plaintiffs (clients of the defendant attorney) had not—and could not have—alleged that the representations at issue were factually unsubstantiated. Claims that the attorney would “work hard to get clients every dollar (clients) deserve” were statements of intent or opinion, not statements of verifiable fact, the court concluded.

Accordingly, the plaintffs’ motion for reconsideration of the summary rejection of their CPA claim was denied.

The April 3 decision, Pappas v. Frank Azar & Associates, P.C., will appear in the CCH State Unfair Trade Practices Law.

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