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.

RumpolePenge

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.


RumpolePengeUK

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
shaking
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)
dodoG

10 Comments

  1. David –

    Wow, someone woke up cranky today. Taking a few shots? That’s fine. I will see if I can address them in order, since your writing is a bit rambling.

    First, as for my tagline on the Practice, I am helping law students learn. However, you should know that learning is an ongoing process. Even if I wrote a book today about EVERYTHING a law student needs to know, it could not possibly be delivered instantaneously. It is an ongoing process. If someone continues to read my blog over time, they will learn what they need to know. Just like when someone comes for legal services, you can’t solve every problem at once, this is a process that takes steps.

    Second, about us means I have a staff. I am sure you are familiar with the concept of a staff, right?

    Third, is the concept of neighborhood foreign to you? I provide services to people in my neighborhood. It does not mean I provide them exclusively in my neighborhood, but, for instance, on Friday night I helped someone who is in the neighborhood and was in the hospital. Maybe you boys on the East Coast just don’t care about your neighbors as much.

    As far as touting my educational background, don’t we all? If education did not matter, why would your blog be at harvard.edu? Are you telling me that education is not important? After all, you tell everyone that you graduated from Harvard Law Schol. Why?

    Finally, as to my problems with the use of heavy hitter, the public will hire someone like him based on what he calls himself. Not only does this give those of us who actually practice law a black eye, it deceives people who think they are getting someone who is a heavy hitter. How would they actually know?

    You will notice that I do not advertise my results. Why? Because results are irrelevant. Yes, I said it and I stick by it. If I settle a case for $1,000,000 is that a good settlement? Is that a bad settlement? And how would anyone know? I have no problem with advertising services, but I do have a problem when people do it in a way that negatively impacts a profession and the jury system.

    If you would like to openly debate the merits of advertising, just let me know.

    Jonathan

    Comment by Jonathan — March 12, 2006 @ 4:54 pm

  2. David –

    Wow, someone woke up cranky today. Taking a few shots? That’s fine. I will see if I can address them in order, since your writing is a bit rambling.

    First, as for my tagline on the Practice, I am helping law students learn. However, you should know that learning is an ongoing process. Even if I wrote a book today about EVERYTHING a law student needs to know, it could not possibly be delivered instantaneously. It is an ongoing process. If someone continues to read my blog over time, they will learn what they need to know. Just like when someone comes for legal services, you can’t solve every problem at once, this is a process that takes steps.

    Second, about us means I have a staff. I am sure you are familiar with the concept of a staff, right?

    Third, is the concept of neighborhood foreign to you? I provide services to people in my neighborhood. It does not mean I provide them exclusively in my neighborhood, but, for instance, on Friday night I helped someone who is in the neighborhood and was in the hospital. Maybe you boys on the East Coast just don’t care about your neighbors as much.

    As far as touting my educational background, don’t we all? If education did not matter, why would your blog be at harvard.edu? Are you telling me that education is not important? After all, you tell everyone that you graduated from Harvard Law Schol. Why?

    Finally, as to my problems with the use of heavy hitter, the public will hire someone like him based on what he calls himself. Not only does this give those of us who actually practice law a black eye, it deceives people who think they are getting someone who is a heavy hitter. How would they actually know?

    You will notice that I do not advertise my results. Why? Because results are irrelevant. Yes, I said it and I stick by it. If I settle a case for $1,000,000 is that a good settlement? Is that a bad settlement? And how would anyone know? I have no problem with advertising services, but I do have a problem when people do it in a way that negatively impacts a profession and the jury system.

    If you would like to openly debate the merits of advertising, just let me know.

    Jonathan

    Comment by Jonathan — March 12, 2006 @ 4:54 pm

  3. David –

    Lets go back to my original point, which you can’t seem to argue with: lawyer advertising like this affects juries. And if you think this is just a PI attorney arguing, than go read Dr. Ball’s book. And try arguing a case.

    Jonathan

    Comment by Jonathan — March 12, 2006 @ 10:37 pm

  4. David –

    Lets go back to my original point, which you can’t seem to argue with: lawyer advertising like this affects juries. And if you think this is just a PI attorney arguing, than go read Dr. Ball’s book. And try arguing a case.

    Jonathan

    Comment by Jonathan — March 12, 2006 @ 10:37 pm

  5. I looked up your contingency bill of rights. Let me throw out a few ideas for you.

    First, your heading is a bit deceptive since ATLA, the Association of Trial Lawyers of America, did not release it. You, of course, seem to not mind that you are creating confusion, not just for the lowest common denominator, but for a lot of people. I am guessing Harvard would not find it so funny if someone made up something like that where Harvard determined that all of their professors were unqualified. But, we can move beyond that to the actual substance.

    Second, I do not charge the “standard fee.” Heck, in some cases, I do not charge any fee. Let me see if I can rephrase that for you: in some cases, I do not charge any fee to my client. And it is not just me. I know plenty of other plaintiff’s attorneys who do the same thing. Why? Because, for most of us, although not all, our reason for practicing in this field is to help people. Sure, there are bad apples, but there are bad professors too. We don’t lump you all in and say all professors are just lazy, no good people who could not hack it as trial lawyers.

    Third, since you seem to be on some sort of anti-Jonathan Stein kick, which is fine with me, not only do I adhere to my State Bar’s code of ethics, but I adhere to the code of ethics of ATLA, the CPCU Society and the American Institute for CPCU. What code do you adhere to?

    Fourth, I actually have two phsyical locations. Thanks for asking.

    Fifth, I do not list my staff because they are entitled to a right of privacy. Unlike me, where my information is public record, the same is not so for anyone who works with me. Since I do represent some criminal defendants, and since some of my personal injury cases may turn into problems, I keep some privacy for people who work for me. Is that an issue with you? After all, you are all about people’s rights, yes?

    Comment by Jonathan — March 12, 2006 @ 10:56 pm

  6. I looked up your contingency bill of rights. Let me throw out a few ideas for you.

    First, your heading is a bit deceptive since ATLA, the Association of Trial Lawyers of America, did not release it. You, of course, seem to not mind that you are creating confusion, not just for the lowest common denominator, but for a lot of people. I am guessing Harvard would not find it so funny if someone made up something like that where Harvard determined that all of their professors were unqualified. But, we can move beyond that to the actual substance.

    Second, I do not charge the “standard fee.” Heck, in some cases, I do not charge any fee. Let me see if I can rephrase that for you: in some cases, I do not charge any fee to my client. And it is not just me. I know plenty of other plaintiff’s attorneys who do the same thing. Why? Because, for most of us, although not all, our reason for practicing in this field is to help people. Sure, there are bad apples, but there are bad professors too. We don’t lump you all in and say all professors are just lazy, no good people who could not hack it as trial lawyers.

    Third, since you seem to be on some sort of anti-Jonathan Stein kick, which is fine with me, not only do I adhere to my State Bar’s code of ethics, but I adhere to the code of ethics of ATLA, the CPCU Society and the American Institute for CPCU. What code do you adhere to?

    Fourth, I actually have two phsyical locations. Thanks for asking.

    Fifth, I do not list my staff because they are entitled to a right of privacy. Unlike me, where my information is public record, the same is not so for anyone who works with me. Since I do represent some criminal defendants, and since some of my personal injury cases may turn into problems, I keep some privacy for people who work for me. Is that an issue with you? After all, you are all about people’s rights, yes?

    Comment by Jonathan — March 12, 2006 @ 10:56 pm

  7. David –

    Not sure what I should share with you about me fee arrangements. Quite frankly, its none of your damn business. And since you dont seem to be knocking hourly attorneys who charge $500 or more an hour, it seems to me that your beef is against PI attorneys and you are another shill for the tort reformers of the world.

    Comment by Jonathan — March 13, 2006 @ 10:01 pm

  8. David –

    Not sure what I should share with you about me fee arrangements. Quite frankly, its none of your damn business. And since you dont seem to be knocking hourly attorneys who charge $500 or more an hour, it seems to me that your beef is against PI attorneys and you are another shill for the tort reformers of the world.

    Comment by Jonathan — March 13, 2006 @ 10:01 pm

  9. Jonathan,  If our encounter is representative of your analysis, intuition, and attitude, I feel very sorry for your clients.
    My first week as a weblogger, I wrote the post Got My First Hate Mail (on behalf of trial lawyers, of course) .  It is just as on point as ever.  For your information, “tort reform” is focused on limiting the amount of recovery by a plaintiff.   My goal in discussing the standard contingency fee is to make sure that clients get to keep as much of their awards as they deserve; it in no way limits the amount of recovery. 
    Maybe your staff will have better luck than you did finding the many posts on this website that decry the excessive focus on income and high fees throughout the legal profession. They might start here and there.

    Comment by David Giacalone — March 13, 2006 @ 11:07 pm

  10. Jonathan,  If our encounter is representative of your analysis, intuition, and attitude, I feel very sorry for your clients.
    My first week as a weblogger, I wrote the post Got My First Hate Mail (on behalf of trial lawyers, of course) .  It is just as on point as ever.  For your information, “tort reform” is focused on limiting the amount of recovery by a plaintiff.   My goal in discussing the standard contingency fee is to make sure that clients get to keep as much of their awards as they deserve; it in no way limits the amount of recovery. 
    Maybe your staff will have better luck than you did finding the many posts on this website that decry the excessive focus on income and high fees throughout the legal profession. They might start here and there.

    Comment by David Giacalone — March 13, 2006 @ 11:07 pm

RSS feed for comments on this post.

Sorry, the comment form is closed at this time.

Powered by WordPress