Thursday, January 11, 2018

"I'm your lawyer" might be false advertising when lawyer's firm won't do the work

Rosenbaum & Assoc., P.C. v. Morgan & Morgan, 2018 WL 327167, No. 17-4250 (E.D. Pa. Jan. 8, 2018)

A Philadelphia personal injury law firm that advertises extensively on TV and billboards alleged that a national personal injury law firm’s expansion into Philadelphia caused it to lose potential personal injury clients through TV and billboard ads when the national law firm didn’t, and never intends to, represent Pennsylvania personal injury clients. Instead, it allegedly referred all or a vast majority of potential local clients to other law firms in exchange for a referral fee if the client eventually recovers.  The court allowed plaintiffs to proceed against the national firm, its managing global partner and (for one statement) the national firm’s senior partner for four possibly false, deceptive or misleading statements in TV commercials.   In one TV ad, John Morgan, a founding Morgan & Morgan attorney, states “I’m not just any lawyer, I’m your lawyer,” though he’s not licensed in Pennsylvania.  Another ad says “we’re all here for you,” and, “our family is here for your family.” In addition, an ad says “you don’t pay us unless we’re successful.” Although this is true, Rosenbaum argued that it could be deceptive because it suggests Morgan & Morgan needs to be successful when, in fact, Morgan & Morgan has no role in the success.  Ads used to include a written disclaimer claiming not to be “a referral service.” After the lawsuit was filed, Morgan & Morgan revised this disclaimer to remove that statement and add “Cases may be referred to and handled by another law firm as co-counsel.”

The complaint stated a plausible claim that “I’m your lawyer” was misleading or literally false because it could deceive Pennsylvania consumers into believing John Morgan would personally represent then when in reality he wouldn’t represent, and arguably couldn’t represent, them in a Pennsylvania personal injury matter. Unidentified members of the Morgan family also appeared in a television ad and a voice states “We’re all here for you” and “Our family is here for your family.” This also plausibly stated a claim for misleading or literally false advertisingbecause Morgan & Morgan didn’t employ attorneys licensed to practice in Pennsylvania and the members of the Morgan family appearing in the advertisement allegedly weren’t licensed to practice in Pennsylvania and didn’t intend to ever represent clients in the Philadelphia area.

“You don’t pay us unless we’re successful”: Similarly, this could be misleading or literally false insofar as Morgan & Morgan would never represent the clients in the Philadelphia area, meaning a client could never owe fees to Morgan & Morgan because Morgan & Morgan could never be successful. [This seems to be necessary implication: the necessary implication of "unless" is that "we might be successful" and further "it will be 'we' representing you."] “Not a referral service” and the revised disclaimer “may be referred to and handled by another firm as co-counsel”: Morgan & Morgan argued Rosenbaum couldn’t claim to be a “referral service” without implicating Pennsylvania Rule of Professional Conduct 7.2(k), but there’s an absence of authority defining referral service. The comments to Rule 7.2 (k) say that it’s “misleading to the public for a lawyer or law firm, with knowledge that the lawyer or law firm will not be handling a majority of the cases attracted by advertising, to nonetheless advertise for those cases only to refer the cases to another lawyer whom the client did not initially contact.”  Because this question “involves both a fact investigation of the extent of these referrals as opposed to retained matters and eventually a determination of whether telling potential clients of your interest in being their lawyer when, in fact, you do not intend to be their lawyer is unfair competition,” it couldn’t be resolved at the motion to dismiss stage.

Rosenbaum also pled a claim against individual attorneys who allegedly “authorized and approved the acts of unfair competition,” and as to which he alleged “some specific role in the statements which equate to unfair competition,” whereas merely being a senior officer of the advertiser wasn’t enough.  Being a spokesperson in the ad, unsurprisingly, was enough.  So was the allegation that the global managing partner “approved” and “authorized” the advertisements to be shown in the Philadelphia area.  Other named defendants, however, weren’t sufficiently alleged to be personally involved, even if they were Morgan family members who appeared in an ad; the “family” statements were made by voiceover and it wasn’t clear who said it.  Appearing in a commercial where an alleged misrepresentation is also stated “without more detail is not sufficient to show they ‘actively participated in or personally directed or actively supervised or approved of or sanctioned’” the allegedly false ads.

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