reported and analyzed today (March 3, 2006), the regulators of
Nevada lawyer advertising have outdone even the most harebrained
“heavyHitterLerner”
been told by the Nevada State Bar that Lerner he cannot advertise him-
self 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
all sure that the Supreme Court will find the issue as easy as Lerner’s
“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 ad-
vertising are addressed by adopting restrictions on advertising that are tailored
to prevent unfair or deceptive acts or practices. . . . [I]mposing overly broad re-
strictions that prevent the communication of truthful and nondeceptive information
is likely to inhibit competition and to frustrate informed consumer choice.”
“heavyHittersMHM”
Finally, Ben Cowgill asks “Why am I reminded of the book by Kentucky native
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 pur-
pose 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.
plaining 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).
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 law-
yers.” 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. 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
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 perqui-
sites 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,
update (March 10, 2006): Is Walter Olson a secret member of the
Dignity Police Posse?
update (March 27, 2006): In the Syracuse and Rochester region of Upstate New York,
advertising practices,” March 18, 2006), James Alexander responds to the crackdown
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 casket
shaking
at the lowering
wedding reception –
the weight of her bottle
on the lip of my cup
bonus: one by michael from the newest edition
beached kelp ?
we examine
each other?s life lines
