orig. post: born there, darn that (May 9, 2005)
I just visited Mama G. for two days, in the city of my birth, for Mother’s Day.
To my amazement, I spent an entire weekend without thinking or talking
about anti-consumer bar association chicanery — until I noticed a tiny blurb in
the Rochester, NY, paper this morning. It said the Monroe County Bar Ass’n
was releasing new “advertising guidelines” today that would help maintain the
image of the profession, and would also start a campaign to educate the public
on how to choose a lawyer. My trustbuster genes were immediately activitated,
but I had to ignore than until returning home this afternoon. I have now located
(May 9, 2005). (see the NYS Code of Lawyer Ethics, DR 2-101)
My rusty-but-trusty antitrust opinion: MCBA, which is a voluntary bar group,
whose conduct is considered to be “joint” or “concerted” activity under antitrust
law, is running the risk of violating those 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.
According to the Press Release:
“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.”
Just who is supposed to get to know and respect the Code? The public? And,
which lawyers are unaware of the need for ads that are “true, accurate and clear”?
I fear that the more subjective aspects of the guidelines — those describing “fair,”
“relevant” and “rational” advertising are the real reasons for creating the new ad
policing system. Thus, to be “relevant”, all information in a lawyer’s ad should be
“relevant to the thoughtful selection of counsel, and devices, such as puffery,
that are likely to hinder this process should be minimized.”
Similarly, we can all agree that an ad should be “fair.” But, what are we to make of
the “fairness” guideline, which is solely aimed at dramatizations and simulations, and
advises that they should “fairly represent underlying facts and properly disclose that
they have been staged”? What kind of oversight mischief does MCBA intend?
chasing the crow
ten or twelve yards…
Most worrisome: the “rationality” requirement is aimed at “Picture and stylistic
elements”, which should not “frighten, inflame, or otherwise manipulate viewers into ignoring
rational considerations.” Furthermore, the ads 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.” There is simply too much leeway here for meddle-
some interference and deterrence, with little more at stake than the profession’s Image
(which we believe is actually disserved by such dignity campaigns).
Thanks to constitional and antitrust attacks, specific advertising restrictions against
“demeaning” the profession or impugning its “dignity” were repealed in the last few
decades. Now, we have seem to have them coming back — without any showing
of harm to the public from the “offending” ads.
Naturally, I wish bar associations and rule-making bodies would worry far less about
personal injury lawyers who demean the profession with silly ads, and far more about
personal injury lawyers who despoil their clients with standard contingency fees. Clients
don’t need more information to be able to sort through puffery and silly tv ads. They do
need more information to know how to negotiate for fair fees. Actions tell us much about
priorities. (see this post and links)
- update (June 3, 2005): the new president of the New York State Bar Association, Rochester attorney A. Vincent Buzard, says he hopes to limit lawyer advertising “to the fullest extent permitted, within the limitations of the First Amendment.” (NYSBA, press release, June 1, 2005; Democrat & Chronicle, “Bar leader is advocate for lawyers,” May 30, 2005) Buzard told the D&C that he supports a program like the Monroe Country Bar Association’s ad guidelines.
- update (Nov. 18, 2005): See the 130-page NYSBA Advertising Task Force Report (released Nov. 5, 2005), which recommends adoption of the MCBA Guidelines, along with many other measures aimed at limiting lawyer advertising and helping clients choose lawyers in a more appropriate manner.