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Can Lawyers Name Likely Defendants in Ads?

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By Jonathan R. Tung, Esq. on May 02, 2016 3:59 PM

Solo attorneys all generally know the rules of thumb when it comes to attorney advertising and solicitation. Attorney ads are good; direct solicitations are not so good. Attorney ads have operated mostly this way since the 70s.

But how about ads that name specific defendants? Well, at least one high court is looking at this question. And whichever way it turns out, it could be a real game changer for attorneys across the country.

Mentioning Potential Defendants by Name

Currently, Georgia's Supreme Court is hearing an interesting case involving targeted advertising. But the emphasis is placed less on lawyers targeting clients, but mentioning potential defendants by name in their ads.

The law firm in question is McHugh Fuller Law Group. The group circulated an ad that prominently featured the logo and name of one of PruittHealth, Inc.'s Georgia-based facilities and urged viewers to contact the firm if any of their elderly loved ones suffered unexplained injuries, bedsores, or death. These words were printed in bold red letters.

PruittHealth sued McHugh Fuller to stop under Georgia's Deceptive Trade Practices Act -- a mixture of defamation and copyright principles bundled into one. A lower court had earlier enjoined McHugh Fuller from using their ads and the firm seeks to overturn. But they had already managed to get Georgia's high court to overturn a similar injunction regarding other ads against PruittHealth -- so, so far the score is McHugh Fuller 1, PruittHealth 0.

Tread Lightly

So, what does this mean in your jurisdiction? That's a tricky one.

Let's start with the basics: your local jurisdiction's ethics rules. Most states (excepting California) base their attorney ethics rules on the Model Rules promulgated by the ABA -- specifically Rules 7.1-3. Those rules, unfortunately, don't say anything directly about suggesting a particular defendant in an advertisement. In fact, so long as the advertisement is truthful, not materially misleading, and otherwise conforms to the rest of the reqs, it should be kosher.

Kosher, that is, by the Model Rules. An attorney who names a potential defendant could still find himself on the hook for a defamation lawsuit so fast he'll soon regret his ad. Another attorney would be happy to represent the aggrieved party mentioned claiming false light, libel, and a handful of other causes of action. Of course, you're free to do what you want, but maybe you should practice due diligence first.

So is it ethical to mention specific defendants? Maybe. Is it a good business move? We're probably leaning towards no. But who knows? Never say never. The McHugh case could turn out to be the next Bates v. State Bar of Arizona.

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