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As Carolyn Elefant (“More Bar Silliness: Heavy Hitter is Misleading“) and Ben Cowgill (“Heavy hitters: here, there and everywhere“) both reported and analyzed today (March 3, 2006), the regulators of Nevada lawyer advertising have outdone even the most harebrained of the bar’s dignity police. (see our post “MO says legal consumers are really stupid“)As the Las Vegas Review Journal reported, p/i lawyer Glen Lerner has been told by the Nevada State Bar that Lerner he cannot advertise himself as “The Heavy Hitter” anymore. Instead:He can merely be “a heavy hitter.” “The bar told me by calling myself “The Heavy Hitter,” it was false and misleading because it was stating I’m the only heavy hitter,” Lerner said. “It’s beyond ridiculous.”
Yes, yes it is. As I commented at My Shingle, Ernie Svenson may have to start calling his weblog “Ernie An Attorney.” But, seriously, I’m not at all sure that the Supreme Court will find the issue as easy as Lerner’s attorney Dominic P. Gentile suggests. According to the Review Journal, “Gentile said the U.S. Supreme Court has made clear that if speech such as Lerner’s is accurate and not misleading, then it is protected.” The question is whether the Court will accede to the Bar’s expertise on just what is misleading or deceptive in the context of choosing attorney services.It’s not at all clear that this Supreme Court will take as realistic a position as the Federal Trade Commission. In 2002, the FTC staff told the Alabama Supreme Court that “it 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 nondeceptive information is likely to inhibit competition and to frustrate informed consumer choice.”
Finally, Ben Cowgill asks “Why am I reminded of the book by Kentucky native Philip K. Howard, The Death of Common Sense?” I agree that this type of lawyer advertising makes no sense from the perspective of true consumer protection. But, it makes a lot of sense if — as I contend — the Bar’s real purpose is to create an atmosphere where there is far less lawyer advertising, because they have an enormous emotional investment in the mythic importance and “dignity” of the profession, and an enormous aversion to competition.update (March 6, 2006): California solo p/i lawyer Jonathan G. Stein seems to be rallying a posse for the Diginity Police at his The Practice weblog. Complaining that ads like Lerner’s Heavy Hitter commercials make all lawyers look bad, he says the market won’t regulate such marketing. He concludes:“[I]f you don’t think that this makes all of us look bad, you are wrong. It gives everyone a black eye. And the only way to stop it is through regulation (and remember, I am a free market economist by education).Carolyn Elefant has a well-crafted reply today called “Watch What You Wish for.” (via Home Office Lawyer) Carolyn makes a lot of good points (with examples of marketing Stein praises that Nevada regulators just might deem to be deceptive), and asserts :” I know that the present system isn’t perfect. But I’ll take free speech and the attendant mess that goes with it any day over regulation by a group of lawyers.”Ms. Elefant has it right. I’d love to know what kind of regulation Stein would endorse. If he wants to assure a “dignified” image for lawyers, he should realize that the public has more respect for someone acting tacky than for someone acting pompous. If he agrees with the Nevada Bar’s specious approach to “deception” he should indeed worry about what he wishes for.Someone looking at Stein’s weblog might think that the tagline “Helping law students and lawyers learn everything they wanted to know about law practice management” (emphasis added) promises rather more than it can deliver. Looking at his law firm website, a consumer seeing an “about us” link might think that this solo firm has more than one lawyer, while his “Law Offices” declaration belies his one location. And, a regulator might question Stein’s definition of a “neighborhood law firm.” Also, a real “free market economist” might take umbrage at Stein’s touting that part of his educational background.There are lots of slippery slopes out there once the concept of “deception” is divorced from reality and reasonable consumer reactions, and is instead left in the hands of regulators who mostly don’t much like advertising.
afterthought (Noon, March 3): Early this morning, I finished listening to the audiobook of John Mortimer’s 2004 novel Rumpole and the Penge Bungalow Murders. Throughout this enjoyable memoir of Rumpole’s first big case, he is chided by Queen’s Inns and Equity Court versions of the bar’s dignity police – pompous Heads of Chamber, like Wynset and Ballard, worried more about their own perquisites and appearing in “the finest traditions of our great profession” than in working diligently to keep a client from the death sentence or in helping to nurture the career of a young “white wig” lawyer.
Rumpole, of course, refuses to see his role as being “a safe pair of hands” wearing the correct color of pants. Yes, he never does become rich or famous, or even Head of Chambers, but he serves his clients and profession with his zeal and his soul intact.
In the haiku world, you can find true heavy-hitter haijin in the Haiku Society of America’s journal, Frogpond. For example, our mail carrier brought the newest Frogpond (XXIX: 1) to my mailbox today, and it contains this pair from Michael Dylan Welch:
update (March 10, 2006): Is Walter Olson a secret member of the Dignity Police Posse?foul-up follow-up (March 15, 2006): n.y. heavy hitters get dumped: who you gonna sue?update (March 27, 2006): In the Syracuse and Rochester region of Upstate New York, the firm of Alexander & Catalano has the Heavy Hitters franchise. In a recent article, in the Central New York Business Journal (“State Bar Association tackles attorney advertising practices,” March 18, 2006), James Alexander responds to the crackdown on lawyer advertising proposed by the NYS Bar Association (NYSBA Press Release, Feb. 1, 2006):“I think lawyers are very sensitized to advertising by other lawyers,” he says, estimating that about two-thirds of complaints about advertising are lodged by lawyers. “There are many lawyers who don’t approve of advertising and think it should only be done in their idea of a dignified manner.” The problem arises when different lawyers have different opinions of what constitutes a dignified manner.“Our avertising tends to be friendly and entertaining, for the most part, and informative,” Alexander says of the television spots that appear on all major network affiliates and cable stations in Central New York. (Alexander and his partner Catalano are often shown with baseball bats to illustrate their slogan.) Other may not agree, but it doesn’t mean the advertising is inappropriate or misleading, he says.
roses on the casketshakingat the loweringwedding reception —the weight of her bottleon the lip of my cupfrogpond (XXIX: 1, Winter 2006)bonus: one by michael from the newest edition of The Heron’s Nest:beached kelp –we examineeach other?s life lines
