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

March 27, 2006

lawyer ads: the tension between ethics and self-interest

Filed under: pre-06-2006 — David Giacalone @ 5:57 pm

With the Nevada Bar recently condemning ads by “The Heavy Hitter,

the Supreme Court refusing today to hear a challenge to Florida’s ban

on Pape & Chandler’s mild pitbull logo, and the New York bar asking

for heavy-handed restrictions on “inappropriate — or even sleazy —

advertising” by lawyers, I wanted to share with you an article from 2000,

I discovered last weekend. It’s “Lawyer Advertising and Professional Ethics,

by Prof. Jonathan K. Van Patten, University of South Dakota School of

Law, in Perspectives on the Professions, Vol. 19, No. 2, Spring 2000,

sponsored by The Center for the Study of Ethics in the Professions

(CSEP) at the Illinois Institute of Technology. 




The article begins with the text of a typical tv ad.  After noting that it doesn’t

in and of itself generate ethical concerns, Prof. Van Patten asks why it

nonetheless leaves many with “a sense of unease.”  He then continues:

“Much criticism of lawyer advertising is misplaced. While ostensibly

concerned with ethics, it may actually serve other agendas. Attacks

on a lawyer’s advertising for personal injury cases, for example, are

often attempts to create a predisposition against plaintiffs’ claims in

the minds of prospective jurors. There may also be an element of self-

righteousness involved. The attacks imply that lawyers who advertise

are not good enough to attract clients through the more traditional ways,

reputation and word-of-mouth. Criticism of lawyer advertising may also

reflect class or social differences (if that term can be used to describe

differences in attitude between members of the established bar and





“Perhaps the best way to express a principled reservation about lawyer

advertising is to say that commercialism might have a corrosive effect

on professionalism. This way of stating the problem, properly understood,

does not rest on the outdated image of a legal profession unsullied by the

forces of the market. . . .  Rather, this way of stating the problem grounds

it in the inherent tension between ethics and self-interest. The primary

ethical norm relating to clients is that the client’s interests are superior to

the lawyer’s. The lawyer’s interests are subordinated, but not lost. The

creative resolution of the tension honors the client’s interests without losing

the lawyer’s.”  [emphasis added]



Prof. Van Patten then discusses the problems inherent in advertising services —

in telling and asserting, rather than showing, your worthiness to be trusted.  He

stresses that self-restraint and internal values — rather than ethical rules — are what

will keep a lawyer focused on serving the client’s interests first.  He explains:

“Restrictions on advertising serve as one of the external restraints on a

lawyer’s self-interest. The restrictions are limited in scope, focusing mostly

on accuracy. The most important rules, those concerned with dignity, are

too hard to write. The restraints supporting dignity must be internal.”

More telling is his observation: “For some reason, bankers, doctors, and hospitals

find it easier to advertise professional services without loss of dignity. Why is loss

of dignity more of a problem for lawyers who advertise than for other professionals?

The lawyer’s ad cited earlier, with its emphasis on FREE this and FREE that, has

more in common with advertising for autos and carpets than with the advertising of

other professionals.”


tightrope flip


Prof. Van Patten then focuses on “the internal struggle” (emphasis added):

“The struggle for professionalism is not simply a matter of ethical lawyers

and unethical lawyers. It is a struggle between good and evil that is personal

to every lawyer. Some lawyers have clearly given in to the dark side; it will

take more than a little counseling to bring them back. For them, the bar needs

measures sterner than a sermon. For the rest who continue to struggle against

the dark side, there is no respite.” . . .




We come back to the tension curbing the pursuit of self-interest by placing

the clients’ interests ahead of the lawyer’s. It’s not your case, it’s their case.

Listen. Think. Meditate. How can I get to where they want to go without losing

them, or myself (or even the other side), in the process?


“In advertising, this would mean the “soft sell,” not the “hard sell.” Cut out the

“FREE” stuff and the other gimmicks. Tell prospective clients who you are,

what you do, how you practice, and what you believe in. Then, try living up to

those words.”

Although I strongly support the right of lawyers to advertise, so long as there is no

deception involved, I do have a “sense of unease” when viewing many of their ads. 

It is not a matter of the dignity of the profession.  It is more the feeling that most

(certainly not all) lawyers advertising on television have their personal financial inter-

ests in mind far more than service to their clients.  Their primary goal is to get very

rich (through sheer numbers of clients and through rolling the dice in the great law-

suit lottery game), rather than to use their professional expertise and their dedication

to help clients with legal problems.   




As soon as your primary motive is to make a killing with your legal license, rather

than making a good living serving your clients, it becomes far too easy to start

cutting ethical corners and ignoring ethical blindspots.  For those who are not

already lost to the darkside, it is indeed a constant struggle to stay vigilant and




tiny check Time out for a few haiku and senryu from former

lawyer, and chronic sports fan, Barry George:




my nephew’s fastball –

I hand back his glove

and keep the sting  







lost in thought — 
the track announcer’s voice
drifts over the river






passing the beggar —
my pockets start
to jingle





the kite’s pull —

in another life I wore

a braided pigtail 




passing the beggarSimply Haiku (Spring 2005)

the kite’s pullThe Heron’s Nest (July 2002)

“my nephew’s fastball” –  bottle rockets #11




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