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
neophytes).
“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does not rest on the outdated image of a legal profession unsullied by the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.”
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
ethical.
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 beggar” Simply Haiku (Spring 2005)
“the kite’s pull” The Heron’s Nest (July 2002)
“my nephew’s fastball” – bottle rockets #11
“lost in thought” – from the heron’s nest
March 27, 2006
lawyer ads: the tension between ethics and self-interest
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