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

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:

“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)

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 Forum — my 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.”

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

autumn morning

two veterans

shoulder their brooms

last bale of hay

one strap holds

his overalls  

W.F. Owen from Selected poems by w.f. owen

“last bale of hay” – Frogpond XXV:1 (2002) 

“autumn morning” – Modern Haiku XXXIV:1 (2003)

“waxing moon” – Modern Haiku (Winter 2002)

• by dagosan:

not quite October:

holly wreaths fill

the sweet corn bins

[Sept. 26, 2005]

“soldSign”