In 1984, Ronald Reagan was re-elected President. The Summer Olympics were held in Los Angeles. Apple introduced the Macintosh personal computer. It was also the year Hanan M. Isaacs and Robert A. Felmeister filed a lawsuit in federal court to liberalize New Jersey’s ethics rules governing lawyer advertising.

Forty years ago, the Supreme Court of New Jersey’s rules governing lawyer advertising were highly restrictive. The Court limited lawyer advertising to “tombstone” ads, which listed legal services and a price. The Court disallowed TV/cable ads and any Madison Avenue techniques (music, lyrics, animation, dramatization). These methods were expressly prohibited, upon pain of discipline, up to and including disbarment.

In 1982, two young lawyers, Mr. Isaacs and Mr. Felmeister, challenged the New Jersey ethics rules, sometimes defending and at other times prosecuting them to change the rules. Their challenge, ultimately successful, took five years and a lot of hard work by the young law partners and their retained legal counsel, David B. Rubin, Esq. As a result, in 1986, the Supreme Court substantially relaxed its rules, allowing a wide array of modern advertising tools. The theory behind the US Supreme Court’s adoption of first amendment rights in commercial advertising, on which Felmeister and Isaacs relied, depended upon the public’s need for information, especially in practice areas that are less known and important for people’s lives. We have all seen (too many?) ads for attorney personal injury law, but every practice area today is well marketed by legal practitioners for the benefit of the public.

For many years, Mr. Isaacs’s law firm, now known as Kingston Law Group, has focused on internet marketing to publicize its work in family law, employment law, and general civil and criminal litigation, including alternative dispute resolution in those fields.

Professional Conduct Rule Restricting Advertising Challenged

Felmeister and Isaacs disputed the constitutionality of the State Supreme Court’s advertising regulation, which prohibited “the use of drawings, animations, dramatization, music or lyrics.” It required that “[a]ll advertisements … be presented in a dignified manner.” according to the Court’s decision.

The new rules stated that lawyers could advertise their services through:

• Public media
• Telephone directories (remember them?)
• Legal directories
• Newspapers
• Periodicals
• Radio
• Television
• Mailed written communication

No advertising could be false or misleading or use drawings, animations, dramatization, music, or lyrics. Felmeister and Isaacs fully embraced that requirement.

They filed their case in US District Court, which the State Supreme Court moved to remand to the State Courts for a trial. The trial court took testimony from the law partners, expert witnesses on both sides, and came up with a report and recommendations, which the Supreme Court largely accepted:

• The rule against “drawings, animations, dramatizations, music or lyrics” in attorney advertising was unconstitutional, given the US Supreme Court’s prior attorney advertising decisions
• These techniques, which might be factually deceptive, aren’t inherently so
• The evidence supporting the use of these techniques shows they are “only inherently misleading in the sense … [of] inducing action more on the basis of emotion than rational thought.”
• Despite this emotional element, their prohibition would “preclude the effective use of legal services advertising and constitute more extensive regulation than necessary to serve the governmental interests in precluding false, misleading, and undignified advertising.”
• Preventing these techniques would lead to “tombstone” ads that would fail to “accomplish the intended purposes of attention-getting, recall assistance (memory storage), and supplying substantive legal services information to the public.”
• Ads must continue to be truthful, not misleading, and presented in a dignified manner

State Supreme Court Agrees With Hanan and Robert

The high court agreed with most of the lower court’s suggestions and concluded that “the public interest would be better served” by changing the then applicable rule to one that:

• Required all legal services advertising be predominantly informational
• Limited the prohibition of “drawings, animations, dramatization, music or lyrics” to television advertising
• Ended the requirement that ads be presented “in a dignified manner”
• Prohibited using “the shock or amusement value of absurd portrayals wholly irrelevant to the selection of counsel”
• Continued to prohibit false or misleading advertising

The Supreme Court stated their decision was based on policy and federal constitutional grounds:

We believe that attorney advertising without any restrictions…might seriously damage important public interests, but that excessive restriction might harm other public interests equally important.

The goal, as we view it, is to strike the proper balance, one that results in the largest net gain for the public…The public would be well served by more information about the legal system in order to know its legal rights and to help it choose a lawyer to enforce those rights…a substantial portion of the public is ill-informed about its rights, fearful about going to an attorney, and ignorant concerning how to choose one.

Attorney advertising is perhaps the best way to meet these needs…the public would be better served if it could obtain legal services at a lower price…attorney advertising is one of the best ways to foster price competition…our review of advertising on the record before us demonstrates that advertisements can be devised that provide substantial information, that have the added virtue of being interesting, and that seem to pose minimal risks to the interests mentioned…

This decision changed the language of the advertising rule (RPC 7.2(a)), and it remains in place 40 years later.

From Tombstone to Billboard

Kingston Law Group and its predecessors relied mostly on internet advertising and marketing. It ran occasional “paper” ads in local media. However, in 2024, due entirely to chance and brilliant in-house marketing by Chief Paralegal, Shelby Buch, the firm ran electronic billboard ads on Route 130 in South Brunswick for two weeks, courtesy of a winning raffle. It took forty years to get from tombstone ads to electronic billboard marketing. The three ads rotated, exposing the firm’s name, number, and ironic content for eight seconds for so many minutes, twenty-four hours a day.

The humorous ad content, intended to grab attention, included titles like “Nothing Says Holidays Like Divorce” and “Looking to Sue Your Boss This Holiday Season?”

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