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.
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?
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.
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
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.
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
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);
– 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.
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)
afterthought: See Missouri newsflash: legal consumers are really stupid
(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).
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)
November 18, 2005
more dignity police: ny bar disses lawyer advertising
Like 
right through it
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
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)
– don’t forget jim kacian’s haiku primer –
potluck
In light of yesterday’s decision in Florida banning Pit Bull
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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