f/k/a archives . . . real opinions & real haiku

March 3, 2006

heavy breathing over “heavy hitting” lawyers

Filed under: pre-06-2006,Uncategorized — David Giacalone @ 11:36 pm

[Editor’s Note:  Please excuse all of the formatting problems below.  A change in webservers made a mess of many of our early posts.  We just don’t have the time to re-do thousands of postings, many (like this one) with very complicated formatting.  So, please bear with us.]

As Carolyn Elefant (“More Bar Silliness: Heavy Hitter is Misleading“) and Ben Cowgill (“Heavy hitters: here, there and everywhere“) both reported and analyzed today (March 3, 2006), the regulators of Nevada lawyer advertising have outdone even the most harebrained of the bar’s dignity police. (see our post “MO says legal consumers are really stupid“)
“heavyHitterLerner” Glen Lerner, Heavy Hitter
As the Las Vegas Review Journal reported, p/i lawyer Glen Lerner has been told by the Nevada State Bar that Lerner he cannot advertise himself as “The Heavy Hitter” anymore.  Instead:
at bat flip neg He can merely be “a heavy hitter.” “The bar told me by calling myself “The Heavy Hitter,” it was false and misleading because it was stating I’m the only heavy hitter,” Lerner said. “It’s beyond ridiculous.”
Yes, yes it is.  As I commented at My Shingle, Ernie Svenson may have to start calling his weblog “Ernie An Attorney.”  But, seriously, I’m not at all sure that the Supreme Court will find the issue as easy as Lerner’s attorney Dominic P. Gentile suggests. According to the Review Journal, “Gentile said the U.S. Supreme Court has made clear that if speech such as Lerner’s is accurate and not misleading, then it is protected.”  The question is whether the Court will accede to the Bar’s expertise on just what is misleading or deceptive in the context of choosing attorney services.
It’s not at all clear that this Supreme Court will take as realistic a position as the Federal Trade Commission.  In 2002, the FTC staff told the Alabama Supreme Court that “it is best for consumers if concerns about misleading advertising are addressed by adopting restrictions on advertising that are tailored to prevent unfair or deceptive acts or practices. . . . [I]mposing overly broad restrictions that prevent the communication of truthful and nondeceptive information is likely to inhibit competition and to frustrate informed consumer choice.”
.. Martin, Harding & Mazzotti – “The Heavy Hitters
Finally, Ben Cowgill asks “Why am I reminded of the book by Kentucky native Philip K. Howard, The Death of Common Sense?”  I agree that this type of lawyer advertising makes no sense from the perspective of true consumer protection.  But, it makes a lot of sense if — as I contend — the Bar’s real purpose is to create an atmosphere where there is far less lawyer advertising, because they have an enormous emotional investment in the mythic importance and “dignity” of the profession, and an enormous aversion to competition.
update (March 6, 2006):  California solo p/i lawyer Jonathan G. Stein seems to be rallying a posse for the Diginity Police at his The Practice weblog. Complaining that ads like Lerner’s Heavy Hitter commercials make all lawyers look bad, he says the market won’t regulate such marketing.  He concludes:
“[I]f you don’t think that this makes all of us look bad, you are wrong. It gives everyone a black eye. And the only way to stop it is through regulation (and remember, I am a free market economist by education).
Carolyn Elefant has a well-crafted reply today called “Watch What You Wish for.” (via Home Office Lawyer)   Carolyn makes a lot of good points (with examples of marketing Stein praises that Nevada regulators just might deem to be deceptive), and asserts :” I know that the present system isn’t perfect.  But I’ll take free speech and the attendant mess that goes with it any day over regulation by a group of lawyers.”
Ms. Elefant has it right. I’d love to know what kind of regulation Stein would endorse.  If he wants to assure a “dignified” image for lawyers, he should realize that the public has more respect for someone acting tacky than for someone acting pompous.  If he agrees with the Nevada Bar’s specious approach to “deception”  he should indeed worry about what he wishes for.
Someone looking at Stein’s weblog might think that the tagline “Helping law students and lawyers learn everything they wanted to know about law practice management” (emphasis added) promises rather more than it can deliver.  Looking at his law firm website, a consumer seeing an “about us” link might think that this solo firm has more than one lawyer, while his “Law Offices” declaration belies his one location. And, a regulator might question Stein’s definition of a “neighborhood law firm.”  Also, a real “free market economist” might take umbrage at Stein’s touting that part of his educational background.
There are lots of slippery slopes out there once the concept of “deception” is divorced from reality and reasonable consumer reactions, and is instead left in the hands of regulators who mostly don’t much like advertising.


afterthought (Noon, March 3): Early this morning, I finished listening to the audiobook of John Mortimer’s 2004 novel Rumpole and the Penge Bungalow Murders. Throughout this enjoyable memoir of Rumpole’s first big case, he is chided by Queen’s Inns and Equity Court versions of the bar’s dignity policepompous Heads of Chamber, like Wynset and Ballard, worried more about their own perquisites and appearing in the finest traditions of our great profession” than in working diligently to keep a client from the death sentence or in helping to nurture the career of a young “white wig” lawyer.


UK audio version

Rumpole, of course, refuses to see his role as being “a safe pair of hands” wearing the correct color of pants.   Yes, he never does become rich or famous, or even Head of Chambers, but he serves his clients and profession with his zeal and his soul intact.
tiny check In the haiku world, you can find true heavy-hitter haijin in the Haiku Society of America’s journal, Frogpond.  For example, our mail carrier brought the newest Frogpond (XXIX: 1) to my mailbox today, and it contains this pair from Michael Dylan Welch:
update (March 10, 2006): Is Walter Olson a secret member of the Dignity Police Posse?
foul-up follow-up (March 15, 2006): n.y. heavy hitters get dumped: who you gonna sue?
update (March 27, 2006): In the Syracuse and Rochester region of Upstate New York, the firm of Alexander & Catalano has the Heavy Hitters franchise.  In a recent article, in the Central New York Business Journal (“State Bar Association tackles attorney advertising practices,” March 18, 2006),  James Alexander responds to the crackdown on lawyer advertising proposed by the NYS Bar Association (NYSBA Press Release, Feb. 1, 2006):
“I think lawyers are very sensitized to advertising by other lawyers,” he says, estimating that about two-thirds of complaints about advertising are lodged by lawyers. “There are many lawyers who don’t approve of advertising and think it should only be done in their idea of a dignified manner.” The problem arises when different lawyers have different opinions of what constitutes a dignified manner.
at bat neg “Our avertising tends to be friendly and entertaining, for the most part, and informative,” Alexander says of the television spots that appear on all major network affiliates and cable stations in Central New York. (Alexander and his partner Catalano are often shown with baseball bats to illustrate their slogan.) Other may not agree, but it doesn’t mean the advertising is inappropriate or misleading, he says.
roses on the casket
at the lowering
wedding reception —
the weight of her bottle
on the lip of my cup

frogpond (XXIX: 1, Winter 2006)

bonus: one by michael from the newest edition of The Heron’s Nest:
beached kelp –
we examine
each other?s life lines
The Heron’s Nest (VIII: 1, March 2006)

quick, count to six

Filed under: pre-06-2006 — David Giacalone @ 1:29 am

A few days ago, we told you the tale of our Schenectady Spider-man’s

jail break.  Edwin Ortiz got out of a recreation yard fence and did some

fancy rooftop jumping to make his escape.  Somehow, Ortiz’s escape

was not discovered for two hours — despite his having been marked

down as “counted” six times on his tier, after he supposedly returned

from recreation.

tiny check Ortiz was a known flight risk and had been on “extraordin-

ary watch,” according to Sheriff Harry.Buffardi, who faces re-

election this year.

The names of the responsible guards were finally released on Wednesday,

along with the news that they were being fired.  (Schenectady [NY] Gazette,

Sheriff fires 2 after jail escape,” March 2, 2006, reproduced here, reply 15;

Albany Times Union, “2 guards lose jobs after jail escape,” March 2, 2006)




Sheriff Harry Buffardi announced that he had fired Deputies Gerald Treacy

and Jayme Paul, after they completed interviews with the State Depart-

ment of Corrections.  Non-criminal, disciplinary actions were also filed alleg-

ing that they failed to make proper counts and engaged in other actions that

wasted time and energy in discovering the escape.   Paul failed to notice that

Ortiz escaped from the rec yard and was not among those returning from the

yard.  Paul also went through the gate from which Ortiz made his escape, but

never noticed that Ortiz left it “grossly deformed.”  Teacy reported that he saw/

counted Ortiz six times after Ortiz had escaped, and then delayed reporting

the disappearance once he realized Ortiz was not present.


When he was interviewed after being re-captured, Ortiz said it wasn’t 

Deputy Paul’s fault for not noticing his absence or getaway.




According to Gazette reporter Steven Cook:

“There were supposed to be six inmates on Ortiz’s

tier, Buffardi emphasized.


‘I don’t think it’s a difficult or tremendous burden

for us to require a count to six people,‘ Buffardi said.”

The County Sheriff’s Benevolent Association said it wouldn’t have com-

ments on the firing until after the Department of Corrections issued its

report.  Paul and Treacy were not available for comments, but could grieve

the disciplinary charges and take them to an arbitrator.   Buffardi said he

did not want to make it sound like the deputies did not usually do their jobs,

but that there was enough “gross negligence” to warrant firing them.  Paul

was hired in April 2004; Treacy has been on the job for 5 years.



Joseph Suhrada, a Republican county legislator and frequent critic

of the sheriff, said Treacy and Paul were being used as scapegoats

to take heat for the sheriff. Suhrada also questioned why it wasn’t

until two hours after Ortiz was noticed missing that surrounding police

agencies were alerted to the escape.  “Whoever made that decision

should be fired,” Suhrada said. [Times Union]


“tinyredcheck”  Here are a half dozen haiku from our

Alaska haijin friend, Alice Framption.  That’s right,

3 plus 3. 



Lenten rose
I let loose
his hand






fog all day
the whiteness
in my ears






his Christmas package . . .

the icy steps

of the post office








in the sickroom

winter sunlight

on the mountain picture






blossoms . . .
I dust off the last
jar of cherries





eviction notice —
a moth ricochets
in the lampshade



“Lenten rose” Haiku Canada Newsletter

“his Christmas package” – The Heron’s Nest (March 2006

“fog all day” – Frogpond XXIV:2; World Haiku Assn

“in the sickroom” – Stone Frog; New Resonance 3

“blossoms”- winner, 2006 Vancouver Cherry Blossom Festival

“eviction notice” —  The Heron’s Nest (March 2004) 




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