Young Lawyers Section

LAWYER ADVERTISING UPON FURTHER REVIEW, PART II

Lawyers were banned from advertising in 1908. With few exceptions throughout the years, no lawyer dared advertise services to the public through the general media. In 1974, two lawyers in an effort to generate the volume of clients necessary to make their firm economically feasible, placed an ad in the local newspaper.

In the case that resulted, Bates v. State Bar of Arizona, the U.S. Supreme Court extended the First Amendment to the rights of lawyers to advertise their services. The Court dismissed the argument that advertising would create the prospect of consumer abuse, focusing instead on the public benefit of improved access and competitive pricing.

Over the past twenty-five years, the profession has experienced the widest possible variety of advertising, from the "have you been injured" lawyer who can be seen on late-night television to the megafirm that underwrites civic events and hires the client’s son as a summer intern. While there are differences in approach, the common denominator has been to attract clients.

Despite the years of serving the designed purpose of communicating to the public, lawyer advertising is currently under attack. Apparently, certain members of the Bar have become disturbed by the fact that lawyers advertise their business. As I pointed out in a recent column, the difference of opinion tends to be generated by lawyers who have been in practice for numerous years and/or lawyers who are with an established practice or firm. Surprisingly, the lawyers who are least likely to advertise their services, tend to be the most vitriolic about the issue. For the most part these lawyers want to talk about the "good old days", before lawyer advertising "lessened the image of the profession". Meanwhile, surveys suggest that a college educated public are more likely to be critical of lawyer advertising. However, these individuals also state that when they need legal services they will ask a lawyer that they know or get a referral from another professional.

However, no such referral process is available for the general public, to whom mass-media lawyer advertising is primarily directed. Surveys have found people with less education are more likely to not know a lawyer or other professional directly, and are more likely to choose a lawyer as a result of advertising. This principle outlined by the Supreme Court protects and promotes the interest of these individuals by allowing them to make informed decisions. I would only hope that when we get on our "holier than thou high horses" that we remember these people in our debates.

The opponents of lawyer advertising suggest that there should be pre-screening of lawyer ads. Such recommendation creates more problems than it solves. The main hardship it creates is this -- what is in bad taste to one may not be in bad taste to all. Further, who is to say that the committee screening the particular ad can speak for the entire community’s taste. More problematic, what if our state screeners values differ from those in border states and severely limit the effect of West Virginia lawyer ads?

Another suggestion being advanced is to limit the information contained in the ad to broad statements of years of experience, fields of practice and membership in professional organizations. This "generic advertising" serves little or no purpose of informing the public.

More vexing is that it costs the same money for everyone to create a generic ad as it would a meaningful market attempt. In reality the firm who is already established benefits most from generic ads. For instance, let us assume lawyers can only place a generic ad; further assume that for the past ten years another lawyer in that community has already established his or her self as the leader in that particular area of law. All generic advertising will do is trigger in the prospective client’s mind the need for service. The potential client will already have been predisposed to choose the established leader. Generic advertising will adversely impact and would be a great detriment to young lawyers and any other lawyer who has never aggressively marketed their services.

In essence, opposition to lawyer advertising is a thinly guised protectionism for the lawyer who has already established the market and is in stark contrast to the principles outlined in Bates.

I would suggest that the Rules of Professional Conduct as they currently exist already stop lawyers from engaging in unethical behavior. To the extent that lawyers engage in unethical behavior, they can, and should be, dealt with in the appropriate fashion. But as a result of one or two examples of lawyer misconduct or individual taste, we should not be forced to endure a complete overhaul of the rules as it pertains to lawyer advertising. Such a cure is not dictated by the disease.

Upon further review there is no conclusive proof of the need to overhaul legal advertising; therefore the play on the field stands, as called, that the Rules of Professional Conduct serve to discipline lawyers for violations of advertising rules. That will be a charged time-out. First and ten.