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Wednesday, February 5, 2014

Jamie Casino's Super Bowl Commercial: The Story and Ad's Ethical Implications

Several of my friends in law school have rediscovered why they set out to pursue the legal profession after watching personal injury attorney, Jamie Casino's, two minute commercial that aired on a local Fox network during the Super Bowl. Here is the commercial:

The New York Daily News explains the story behind the ad:

Jamie Casino wanted to clear his brother's name, and he used halftime at the Super Bowl to do it. 
Casino, a personal injury attorney in Savannah, Ga., created what may be the most insane Super Bowel commercial ever made, which aired during a full 2-minute segment at halftime on local FOX affiliate WTGS. 
Instead of cute puppies, super cars and celebrities — Casino topped them all with some masterful special effects and a powerful message to publicly indict a former police chief and vindicate his family in this spot that was "based on a true story." 
During Labor Day weekend 2012, Casino's brother Michael Biancosino, 30, and Emily Pickels, 21, were shot and killed in Biancosino's vehicle as he gave her a ride home. 
There were two other murders that weekend, and Casino told the Daily News on Tuesday that then Police Chief Wille Lovett, whom he referred to as a creep, told the media in a press conference, "There were no innocent victims."
The Daily News goes on to note that Lovett tried to explain his remark by adding that the perpetrators of the crime were targeting other criminals who were known to drive the same type of car that Biancosino drove. This explanation actually squares pretty well with the Lovett quote in the commercial, which is, "No innocent people were targeted."

Casino's commercial takes on Lovett, with Casino stating that Lovett implied Biancasino was a criminal in order to maintain the illusion of control. The commercial also contains a gravestone stating a number of fictional newspaper headlines, including, "Chief Covers Up Labor Day Tragedy."  Casino eventually smashes the gravestone with a flaming sledgehammer bearing the name of his brother, Michael.

With all the attention being paid to this commercial, an evaluation of whether this advertisement is ethical may be warranted, especially if other attorneys look to copy Casino's techniques.

Rule 7.1 of the Model Rules of Professional Conduct is the first place I decided to look. Here is the text of the rule:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
The comments to the rule further clarify the nature of how communication may be misleading. Notably, this rule is limited to communication "about the lawyer or the lawyer's services." There are arguably some misleading statements in this ad -- such as labeling Lovett's statement as a "cover up" and claiming that Lovett made that statement to make it seem that the police were still in control. But while these statements are misleading, they are not statements about Casino or Casino's services.

The Model Rules of Professional Conduct are not the applicable rules here, however. Georgia's rules of ethics and professionalism apply -- and Rule 7.1(a) states, in part:

A lawyer may advertise through all forms of public media and through written communication not involving personal contact so long as the communication is not false, fraudulent, deceptive or misleading. By way of illustration, but not limitation, a communication is false, fraudulent, deceptive or misleading if it:
(1) contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading;
 The Georgia rule seems to be broader than the model rule. But the first comment below the Georgia rule states:
This rule governs the content of all communications about a lawyer's services, including the various types of advertising permitted by Rules 7.3 through 7.5. Whatever means are used to make known a lawyer's services, statements about them should be truthful.
And this seems to limit the scope of the rule to statements about the lawyers services.

Whatever the case on the scope of the rule, the Casino ad raises the interesting question of the professional implications for lawyers who make false or misleading statements in commercials. False statements about public officials are often granted strong protection from defamation lawsuits. And Casino's statements, while described by many observers as a commercial, is more of a political indictment of Lovett than an advertisement for Casino's legal services. But statements in a commercial context may be less likely to be protected than non-commercial speech -- especially if the statements are misleading -- and attorney advertisements are often subject to fairly stringent rules about what can and cannot be said.

Are Casino's statements about Lovett guaranteed full protection by the First Amendment as political statements, or should they be subject to the stringent regulations of attorney advertisements? There may be further cases and rules that clarify this question, but it strikes me as an interesting dimension of this story. In the meantime, here is a final statement from Casino that he shared with the Daily News:

"I'm a very religious person," Casino said. "This was literally Jesus throwing a hammer and saying no way this will happen."

UPDATE: For more discussion on the ethical issues this commercial raises, see Kevin Underhill's post here.


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