f/k/a . . . the archives

October 17, 2006

nysba disses lawyer advertising

Filed under: — David Giacalone @ 8:40 pm

[originally posted Nov. 19, 2005]

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.”

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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 Advertising, 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).
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In The Anti-Ad Public Relations Campaign Ad, Buzard’s gives this 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.”  None of these alternatives seems particularly helpful to the “average” consumer to whom typical lawyer advertising 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.)
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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?
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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:”
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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. And see PR or Parody? for our previous discussion of NYSBA’s public relations campaigns.

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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.”
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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:
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  • 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  “lawyer cellphone small” 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 considerations. 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.
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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.”
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 Committee, 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/o oversee it.
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Like yesterday‘s wrongheaded decision in Florida Bar Assn v. John Pape and Marc 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   “journalist” 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-generated ads or payment for placement) may be analogous to “paying a chaser;”  therefore, 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

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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-competitive, 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:
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Comment to Rule 7.1 Communications Concerning a Lawyer’s Services
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[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 statement is also misleading if there is a substantial likelihood that it will lead a reasonable 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 misleading 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.
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[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.  . . .

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.

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