f/k/a . . . the archives

September 26, 2005

Missouri newsflash: legal consumers are really stupid

Filed under: pre-06-2006 — David Giacalone @ 8:00 pm

Add Missouri to our ever-growing list of states with “we’re just protectin’ them simple-
minded consumers” lawyer advertising rules.  [See our posting here for Indiana; here
and here for Florida; here for South Carolina regarding lawyer nicknames; here and there for Kentucky; and here for New York]
This time, the Supreme Court of Missouri, in an Order issued Sept. 19,
2005 and effective Jan. 1, 2006, has amended Rule 4-7.2, adding a new
subsection (f).  The rule will require that each lawyer ad “contain the
following conspicuous disclosure:
wrong way smN “The choice of a lawyer is an important decision and should not be based solely upon advertisements.”
Proving that the Court thinks lawyers are pretty simpleminded, too, a new
Supplemental Missouri Comment states:  “In the case of television, the
disclosure . . . may be made orally or in writing.  In the case of radio, the
disclosure must be made orally.”  (emphasis added)
tiny check It seems to me that a more necessary warning would be:
“The choice of a lawyer is an important decision and should
not be based solely upon a recommendation from your Bar’s
Lawyer Referral Service.”
[See our prior post -- getting the next lawyer on the list is
hardly an improvement.]
Thanks to David Hricik at Legal Ethics Forummy new best pen-pal — for
pointing to an article from the St. Louis Dispatch about the new Missouri rule.
The article also notes that the new rule will:
“[S]top lawyers from advertising for a specific type of case if they
have no experience in that area. Ads must state if a lawyer routinely
refers an area of practice to other attorneys. Another change requires
that if a lawyer touts damage awards or settlements he has won, he
also must state that past results are no guarantee of future outcomes.

“The rules also expand restrictions for direct solicitation of clients, such

as advertisements sent through the mail. Among new prohibitions is one
that stops lawyers from vilifying or disparaging a potential defendant.
[Mark] Levison [who headed the MoBar committee that sought the new
rules] cited the example of a mailing that depicted a doctor behind bars.”
wolf dude neg In my opinion, Missouri lawyers and courts are really reacting to their own
dislike of all lawyer advertising — to uphold the profession’s supposed “dignity” and prevent
the outbreak of unseemly competition. 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.”

update (Sept. 27, 2005): Evan Schaeffer, who practices in Missouri
and Illinois, doesn’t think the new disclosure will be effective, but won’t
mind adding it to his Missouri ads.  He wonders, however, about corporate
defense firms, whose ads target a more sophisticated crowd but will now
need to include the confusingly irrelevant bit of “information.”
If you’re feeling over-protected by your legal profession, let
me suggest a haiku break.  W.F. “Prof. Bill” Owen never
underestimates your intelligence:

waxing moon
we take turns cranking
the ice cream maker
morning bell
dew spins
from the kickball
soccer ball gray
autumn morning
two veterans
shoulder their brooms
last bale of hay
one strap holds
his overalls  
“last bale of hay” – Frogpond XXV:1 (2002) 
“autumn morning” – Modern Haiku XXXIV:1 (2003)
“waxing moon” – Modern Haiku (Winter 2002)

not quite October:
holly wreaths fill
the sweet corn bins
[Sept. 26, 2005]
“soldSign”

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