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

November 18, 2005

more dignity police: ny bar disses lawyer advertising

Filed under: pre-06-2006 — David Giacalone @ 11:33 pm

If you’ve been listening to radio stations in New York State, this month,

you might have heard this little “public eduation” spot, part of a series

modestly called “Beacon of Justice” (via Will Hornsby):


“This is Vince Buzard, president of the New York State Bar

Association. Do you feel bombarded by lawyer advertising?

Here’s some advice. If you need a lawyer, ask another lawyer

for a recommendation. Or ask friends, or business associates,

or call the State Bar Association for a referral. Attorneys have

a constitutional right to advertise, but billboards and the Yellow

Pages don’t necessarily provide the information you need. A

message from the New York State Bar Association in cooperation

with the New York State Broadcasters Association.”

That’s right, the NYSBA would like consumers to ignore lawyer advertising.  BuzardMug

Indeed, their 108th President, A. Vincent Buzard, has proudly confessed  

he wants to limit lawyer advertising “to the fullest extent permitted, within

the limitations of the First Amendment.”  “It’s bothered me for years,” Buzard

recently said of attorney ads. “This is my year to do something, this is my

chance.” (Buffalo News, “Focus: Attorney Advertising,” Nov. 12, 2005)  So,

Buzard worked up this nifty ad and appointed a Task Force on Attorney Ad-

vertising, which issued a 130-page Report on Nov. 5, 2005. 

 

Let’s take a quick look at each initiative (including the Report’s treatment of

websites and weblogs). 

 

The Anti-Ad Public Relations Campaign Ad, Buzard’s advice if you need a lawyer

is: ask another lawyer for a recommendation. Or ask friends, or business associ-

ates, or call the State Bar Association for a referral.”  None of these alternatives

seems particularly helpful to the “average” consumer to whom typical lawyer adver-

tising is targeted.  Very few middle-. modest- or lower-income Americans have a

“family lawyer” to turn to for advice.  (By some estimates, 80% of the legal needs

of the poor and working poor are unmet, and 150 million Americans have no viable

access to the court system.  Last year, the NY Office of Court Administration cited

a study by NYSBA that estimates there are annually “a total of approximately 2.5

million legal problems for which no lawyer is available” to poor households in New

York.) 

 

If you do happen to know a lawyer from a house closing, divorce, or criminal matter,

just how happy is he or she going to be when you call seeking a recommendation,

and how objective will that recommendation be?   Yes, you could ask your friends,

but how knowledgeable will they be — and how do you judge the value of their

advice? 










mid-argument

the senior partner

has a senior minute

 

   dagosan [Nov. 9, 2005]

 

Buzard’s last suggestion  — calling the State Bar Association for a referral — is

both bogus and self-serving.  We’ve discussed the weaknesses of the lawyer referral

service model at length here, concluding, “From the consumer’s point of view there

are several major problems with the traditional LRS model, the cumulative effect

of which is to make the service only slightly better in most instances than using

the Lawyers by Practice Area section of the Yellow Pages:”

 

The typical consumer in need of a lawyer needs all the sources of information

he or she can get to make a good choice.  Advertising is one way to discover

who is looking for clients with particular problems.  For more ideas on how to

find and choose a lawyer, see Shopping for a Lawyer, from the legal reform

group HALT.


 microphoneG See PR or Parody for our previous discussion

of NYSBA’s public relations campaigns.

 

The Report of the Task Force on Advertising.  It was no surprise for me that

Buzard’s Task Force has written a Report adopting in full the Advertising Guidelines 

of the Monroe County [NY] Bar Association (press release, May 9, 2005), which

were shepherded into being by Buzard himself.   Our major concerns over the MCBA

Guidelines are discussed in this prior post, which states that “There is simply too

much leeway here for meddlesome interference and deterrence, with little more at

stake than the profession’s Image.”

 


According to the MCBA Press Release last May:


“The MCBA had adopted these guidelines to promote knowledge and
respect for the New York Lawyers Code of Professional Responsibility,
and to encourage responsible and informative advertising by attorneys. 
In essence, the MCBA guidelines state that lawyer advertising should be
true, accurate, clear, fair, relevant, rational and jurisdictionally proper.”

Their goals sound harmless, but the thrust of the Guidelines is clearly to

put a chill on tv ads deemed inappropriate by the Dignity Police.  For

example, here are three important Guidelines, in full:


Fair: Advertising that recreates, dramatizes, or simulates situations

or persons should fairly represent the underlying facts and properly

disclose that they have been staged.

 

Relevant: All information should be relevant to the thoughtful  lawyer cellphone small

selection of counsel, and devices, such as puffery, that are likely

to hinder this process should be minimized.

 

Rational: Pictures and other stylistic elements should be used

to reinforce rational considerations, and should not unduly frighten,

inflame, or otherwise manipulate viewers into ignoring rational con-

siderations. Lawyer advertising should not be likely to shock or

offend a substantial segment of the community or to foster disrespect

for the law, the legal profession, or the judicial system.

My reaction as a former antitrust lawyer is that MCBA is running the risk of violating 

the antitrust laws with subjective and overly-restrictive guidelines — especially by linking

them to a compliance-and-monitoring system. The Guideline Committee will accept 

requests for advisory opinions and complaints about violations (which will surely come

from competitors, from the bar’s Dignity Police, and maybe even from ‘tort reformers’);

the committee will also ‘suggest’ modifications to the ads and recommend that the

Association’s Board make public the refusal by a lawyer to modify ads deemed

inappropriate.”


“journalist F”  Ironically, the MCBA Advertising Review Committee had

to shut down shortly after it opened for business, because it was

interfering with (and angering) the State’s Grievance Commit-

tee, and could not work out a compromise.

In addition to adopting the MCBA Guidelines, the Task Force now proposes that all

advertising be filed with a central authority at the time it is published, retained for at

least four years, and subjected to random audit and investigation.  Perhaps taking

a cue from real estate trade associations (our prior post), it hopes to insulate the

currently recommended advertising review committee from antitrust assault (and to

get around the Grievance Committee) by having a governmental body appoint and/or 

oversee it. 

 

 BuzardMugS Like yesterday‘s mistaken decision in Florida Bar Assn v. John Pape and Marc

Chandler, the Task Force proposes major restrictions on advertising in the name of

consumer protection and the avoidance of deception, with absolutely no evidence of

consumer harm.  The Report states that “although a very small minority of the ads

could be categorized as false or deceptive on their face,” about a third of the 119 ads

reviewed by Task Force members were found to be deceptive.  Given the inability to

verify their findings, I am quite dubious of the significance of this claim.  One reason

is the admission in the Report that the “most widespread impropriety” was the failure

to give either the firm’s name, address, or telephone numbers in the ads.  In addition,

the Task Force clearly includes a failure to inform the audience that an ad is “staged”

or uses actors in the deceptive category.  Yet annother reason is the acknowledgement

in the Report that numerous members of the Task Force wanted to remove the materiality

requirement for a finding of deception.

 

Here are some of the other findings and recommendations in 

the Report, which chose not to define “advertising”:


– the lawyer or law firm’s name, actual street address, plus OCA registration

address (if different), and telephone numbers are required in every ad (and must

be on home page of a website)

 


– websites and weblogs by lawyers are advertising

 

– the sponsor of a website or weblog must file any material change in the   journalist

website, and retain the information for four years (electronic methods of retention

are allowed)

 

– the rule that a lawyer may not practice under a trade name should be continued

 

– certain website URLs are unprofessional and distasteful (e.g., “Vioxxattorney.com“),

and although they can’t be regulated for taste, they can be regulated as a trade name

that should be prevented.  Mandatory filing and auditing are needed to allow regulation

of such URL advertising.

 

– placement in Google or Yahoo! results that are not random (e.g., due to content-gen-

erated ads or payment for placement) may be analogous to “paying a chaser;”  there-

fore, random review of internet ads are needed to police such activity

 

– fee information in any ad must be honored for specified periods, and for at least 30

days

 

– a firm may not say that it has a specialty, specializes in, or has specialists in a

particular field (unless certified by an ABA-approved body);

 

trust me

 

– attorneys should be required to certify on their biennial registration that they have 

complied with advertising rules, under penalty of perjury

Despite all of its protestations about not regulating taste or content, the Report of the

NYSBA Task Force on Advertising is clearly, in its parts and its entirety, more about promoting

“professional dignity” and propriety — by stifling advertising — than about legitimate, pro-compe-

titive, consumer protection.  Comments to Rules 7.1 and  7.2 of the ABA’s Model Rules are far

more in accord with the spirit of the First Amendment and consumer sovereignty.  They are

very adequate guidelines — for both lawyers and their regulators — and are well worth repeating

here:


Comment to Rule 7.1 Communications Concerning a Lawyer’s Services

 

[2] Truthful statements that are misleading are also prohibited by this Rule. A

truthful statement is misleading if it omits a fact necessary to make the lawyer’s

communication considered as a whole not materially misleading. A truthful state-

ment is also misleading if there is a substantial likelihood that it will lead a reas-

onable person to formulate a specific conclusion about the lawyer or the lawyer’s

services for which there is no reasonable factual foundation.

 

[3] An advertisement that truthfully reports a lawyer’s achievements on behalf of

clients or former clients may be misleading if presented so as to lead a reasonable

person to form an unjustified expectation that the same results could be obtained

for other clients in similar matters without reference to the specific factual and legal

circumstances of each client’s case. Similarly, an unsubstantiated comparison of

the lawyer’s services or fees with the services or fees of other lawyers may be mis-

leading if presented with such specificity as would lead a reasonable person to

conclude that the comparison can be substantiated. The inclusion of an appropriate

disclaimer or qualifying language may preclude a finding that a statement is likely to

create unjustified expectations or otherwise mislead a prospective client.

 

 


 

[1] To assist the public in obtaining legal services, lawyers should be allowed

to make known their services not only through reputation but also through organized

information campaigns in the form of advertising. Advertising involves an active quest

for clients, contrary to the tradition that a lawyer should not seek clientele. However,

the public’s need to know about legal services can be fulfilled in part through advertising.

This need is particularly acute in the case of persons of moderate means who have not

made extensive use of legal services. The interest in expanding public information about

legal services ought to prevail over considerations of tradition. Nevertheless, advertising

by lawyers entails the risk of practices that are misleading or overreaching.  . . .

 


casual Friday

the senior partner

unbuttons his vest

 

    dagosan [Nov. 18, 2005]

And, especially worth consideration (by Vince Buzard and all the

Dignity Police):


 

[3] Questions of effectiveness and taste in advertising are matters of speculation and

subjective judgment. Some jurisdictions have had extensive prohibitions against television

advertising, against advertising going beyond specified facts about a lawyer, or against

“undignified” advertising. Television is now one of the most powerful media for getting

information to the public, particularly persons of low and moderate income; prohibiting

television advertising, therefore, would impede the flow of information about legal services

to many sectors of the public. Limiting the information that may be advertised has a similar

effect and assumes that the bar can accurately forecast the kind of information that the

public would regard as relevant. Similarly, electronic media, such as the Internet, can be

an important source of information about legal services, and lawful communication by

electronic mail is permitted by this Rule.

 

See our post from September 26, 2005, discussing other recent regulations that have treated legal

consumers like simpletons, but which actually belie the legal profession’s basic dislike of lawyer 

advertising, competition, and affronts to its bloated feelings of self-importance.  

 

As stated in the prior post, An FTC letter in September 2002 to the Alabama Supreme Court

makes some important points (see the Press Release):


“[I]t 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 nond-

eceptive information is likely to inhibit competition and to frustrate

informed consumer choice.” As the Commission staff noted in a 1994

comment to the American Bar Association’s Commission on Advertising,

“research has indicated that overly broad restrictions on truthful advertising

may adversely affect prices paid by consumers, especially for routine

legal services.”

As to the “dignity of the profession” concern, the FTC’s Alabama Letter concluded:

“[B]road rules to enforce criteria of ‘dignity’ may prevent the communication of useful,

nondeceptive information and thus inhibit competition and consumer choice. Strict

rules to enforce ‘dignity’ may not give consumers enough credit, for consumers

apparently respond more positively to advertising that would be considered ‘dignified.’

And consumers appear to be less offended by certain supposedly undignified methods

than professional themselves are.”

 

“tinyredcheck” Consumers do not need more paternalism and phony professionalism.  They need more

competition, choices and information.   Lawyers and judges who truly want to put the interests

of clients first, must have more faith in the benefits of the First Amendment and of competition,

and less reliance on false notions of dignity and propriety. 

 

update (Nov. 21, 2005): On a lighter note, someone Googled

dress guidelines for attorney professional photographs> and

this post was the #2 result — as if we need to give Mr. Buzard

and the Image Protectors any new ideas. (note to myself: update

the f/k/a Inadvertent Searchee page)

 


(Sept. 26, 2005), for more on this topic, including links to materials on other

states that treat legal consumers as cretins.  Also, see our post on the Nevada

Bar’s campaign against the term “The Heavy Hitter” (March 3, 2006).

 

microphoneF

 

 

typo?

her lawyer listed

under “Martial Law”

 

  dagosan [Nov. 19, 2005]


 




“NoSolitS”


 


city lights —

the brightest are all

selling something

 

 

 







dawn

before there is any

tune in my head

 

 

 

snowing hard

no road sign

to obey

 

 

 

 

 

autumn rain

settled

in my ways

 

 


“city lights” & “dawn” – Upstate Dim Sum (2005/1)

“snowing hard” & “autumn rain” – Upstate Dim Sum (2005/II)


                                                                                                            microphoneN

right through it

Filed under: pre-06-2006 — David Giacalone @ 1:22 pm


While I’m busy fretting over the proliferation of Dignity Police

in the legal profession, you can take a break with Jim Kacian:

 

 

 






up into the sky


the airplane rides


my belief


 


 


 


 


fly south gray


 


 





  afternoon moon


the blue of the sky


  right through it


 


 


 


 


 


 


 

winter sunshine

the glint of windshields

at the mall

 

 


“up into the sky” – Roadrunner V: 4 (Nov. 2005)

“afternoon moon” – Presents of Mind (1996)

“winter sunshine” – Mainichi News (Nov. 2005)

 

kacianSelf   – don’t forget jim kacian’s haiku primer –

 

 

potluck


tiny check In light of yesterday’s decision in Florida banning Pit Bull   donkey 

logos in lawyer ads, Evan Schaeffer is worried about finding just the

right, non-deceptive animal metaphor for his p/i law firm.  Right now,

he’s thinking “pack mule” might pass muster.

 

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