LAWYER ADVERTISING - AN ADVERTISING LAWYERS PERSPECTIVE

THE SCENE IS AN APPARENT PAST CLIENT STANDING IN FRONT OF AN OFFICE BUILDING:
My lawyer got me 'BIG' money for my car accident. Call my lawyer - he can get 'BIG' money for you.

(Paraphrased script of a TV ad run not too long ago in metro Detroit.)

JUDGE LOOKING DOWN AT TWO ATTORNEYS IN A COURTROOM SETTING:
Mumbo jumbo, mumbo jumbo, mumbo jumbo.
Attorneys arguing with Judge: Mumbo jumbo, mumbo jumbo, mumbo jumbo, mumbo jumbo
Judge: Mumbo
Attorney: Jumbo

(ABA award-winning ad.)

With commercials like those above still being seen on television its no wonder that lawyer advertising continues to be controversial. No less an authority than former Supreme Court Chief Justice Warren E. Burger has said: "Mv advice to the public is: Never, never, never employ the services of ... a lawyer who finds it necessary to advertise." At any general membership gathering of the Michigan Trial Lawyers Association, it is common to overhear examples of inappropriate lawyer advertising being blamed for everything from the decline of lawyer image to the passage of tort reform.

For a number of years, attorneys have been personally and professionally maligned by the media, the pubic, and most recently by our own Governor and members of the State Legislature.Attorneys are blamed for this country's moral and economic decay, and more than one editorial observer has suggested that we serve little purpose in society other than as future fish food. With everyone ridiculing attorneys, there seems to be one class of individuals that even attorneys look down upon, i.e., attorneys who advertise.

In 1984, the Law Offices of Matz & Rubin became one of the few law firms advertising on television. Prior to 1984, our firm advertised in the Yellow Pages and in newspaper ads. In the Metropolitan Detroit area there are now approximately twenty-nine law firms spending a total of over $225,000.00 per month to purchase television air time. There are dozens of attorneys advertising in various area newspapers, and under the Yellow Pages "Attorneys" heading, there are more full-page ads being purchased than under any other product or service heading.

Prior to 1977, the rules regarding attorney advertising were exceedingly strict. Basically no form of advertising was permitted. An attorney could not advertise a trade name or list a specialty on their letterhead (other than patent or admiralty). There was a mystery that surrounded the hiring and compensation of attorneys by clients, and that mystery was not discouraged by organized Bar Associations. Potential and prospective clients were kept in the dark as to their rights. It was only twenty years ago that a local Bar Association published a recommended “minimum fee schedule" to keep attorneys from discounting their fee, and thus promote competition. Lack of knowledge, and therefore of options, was very effective in limiting competition. If clients were not aware of their rights or options, it was virtually impossible to comparison shop for an attorney. In 1977, the United States Supreme Court decided the case of Bates v State Bar of Arizona 433 US 350 (1977). Bates determined that a blanket ban against attorney advertising violated the First Amendment. Although the Bar argued that price advertising would result in commercialization adversely affecting the professions' service orientation, the Court disagreed, stressing that many clients do not obtain counsel even when they perceive a need, because of the feared price, or because of an inability to locate a competent attorney. The State Bar of Arizona contended that all legal advertising inevitably would be misleading since: a) Legal services are so individualized as to prevent informed comparison on the basis of an advertisement; b) the consumer is unable to determine in advance precisely what service he or she requires; and c) legal advertising would highlight irrelevant factors. In rejecting all of these arguments, the Supreme Court reasoned that it seemed peculiar to deny to the consumer at least some of the relevant information needed to reach an informed decision. Although legal advertising may have the effect of promoting litigation, the Court reasoned that it is not always better for one to suffer a wrong silently than to redress it by legal action. Legal advertising that is false or misleading was, and continues to be, subject to restraint.

It has been sixteen years since Bates and although the United States Supreme Court has reaffirmed again and again the right of an attorney to advertise legal services,1 the organized Bar continues to have significant difficulty with the concept of legal advertising. The arguments that were rejected by the Supreme Court in Bates are still advanced by opponents of legal advertising today. The suggestion has been made that because some types of advertising may be deceptive, or may be misleading, or some claims may be exaggerated, therefore, all legal advertising should be abolished, or at the very least. Disclaimers should be added to any legal advertising suggesting that the advertising is not to be trusted. The effect of a disclaimer is to confuse the issue even further. After spending significant stuns of money to convey an ad to the public, the Bar would like the public to be told not to hire a lawyer based upon the ad.

It may be helpful to review what the current Michigan Rules of Professional Conduct have to say with regard to attorney advertising. MRPC 7.1 through 7.4 deal with communications concerning a lawyers' services, advertising, direct contact with prospective clients, and communication of fields of practice. MRPC 7.1 clearly indicates that an attorney may not use any form of communication that is false, fraudulent, misleading or deceptive.

A communication shall not:

1. Contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading,
2. be likely to create an unjustified expectation about results the lawyer can achieve, or state, or employ by means that violate that Rules of Professional Conduct or other laws; or
3. compare the lawyer's services with other lawyer's services, unless the comparison can be factually substantiated.

The comments to Michigan Rules of Professional Conduct Rule 7.1 suggest that the, prohibition of statements that may create an unjustified expectation would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of the damage award, or the lawyer’s record in obtaining a favorable verdict, and would ordinarily preclude advertisements containing client endorsements. Yet, I certainly see newspaper ads in which an attorney discusses damage awards. I have seen television commercials containing client endorsements, also known as testimonials. I have yet to read of any individual who has been taken to task by the Attorney Discipline Board regarding what appears to be a prima facie violation of Michigan Rule of Professional Conduct 7.1.

In determining whether attorney advertising has been a benefit to the Bar, one must look not only at the Bar as a whole, but at the makeup of the Bar. Attorney advertising probably does not benefit those attorneys with established practices (at least those who established their practices prior to Bates) who have spent several decades building a source of referrals. Prior to the proliferation of attorney advertising, many individuals did not know how to go about hiring an attorney or obtaining legal advice. They frequently sought the advice of an individual in some position of power or authority. This, in turn, gave these individuals in a position of authority fairly extensive leverage with regard to lawyer referrals. Those attorneys who "appropriately" impressed individuals, who could refer them clients, built up a significant network of referrals.

In 1977, the rules changed, and attorneys could now appeal directly to the public, thereby significantly reducing the power of certain individuals to refer cases. Consumers, who were previously aware of few options with regard to obtaining legal services, now had a plethora of options. The immediate effect of advertising was that fees with regard to many routine matters, such as wills, non-contested divorces and business incorporations plummeted. While this may have taken some of the profit out of attorneys' practices, I believe that it was for the public good.

As attorney advertising became more popular, there was a hue and cry among attorneys:

Well, perhaps that is not exactly what attorneys said, but it is probably what many attorneys thought, and it may be what many attorneys still think today. After a when we were taught to think like a lawyer in law school, we were never taught that thinking like a lawyer was not enough, we also had to think like a client if we wanted to make a living in our chosen profession.

In my experience, no one hires our firm because we advertise. At best, advertising allows consumers of legal services to have a choice. Once someone calls our office, whether we have advertised makes absolutely no difference as to whether we are retained in a particular case. How the client is served, how their problems are addressed, how the client is treated both prior to being retained and after being retained, all determine whether we are fortunate enough to be given the opportunity to assist a prospective client. Advertising does not generate clients; advertising generates phone calls. What we do with the phone calls is what generates clients.

In 1980, the American Bar Association Commission on Advertising sponsored a series of focus groups designed to measure the image of attorneys. These studies were carried out at a time prior to any sort of wide spread advertising among attorneys. According to the ABA focus groups, lawyers . . . "were associated with wealth and political power. Fear ,envy, and intimidation characterized the public attitude toward lawyers in general ... lawyers were characterized as devils in pin-striped suits, shysters and used car salesmen.” ln 1992,the American Bar Association Commission on Advertising issued its report on the image of lawyers in advertising, and determined that 2"Lawyers. . . we are our own worst enemy when it comes to image." The ABA conducted research as to public and attorney perceptions of dignity in specific ads "The public always found the ads more dignified than did the lawyers.” The conclusion reached by the commission was that lawyer advertising was not a problem relative to the decline in lawyer image. People do not react, rather, people react negatively to lawyers due to the specific problems THEY HAVE WITH THEIR OWN LAWYER.

Attorney advertising has provided greater choice and more information to more individuals than at anytime in history. Consumers of legal services, potential clients, are better informed before they even meet with an attorney. In our practice, an individual can call our office and obtain a free consultation over the telephone. If they were involved in a motor vehicle accident, their first-party no-fault rights will be discussed with them. As extensive an analysis as can be made concerning potential third-party claims will also be given. The same is true with regard to any other type of injury claim inquiry, I am not aware of any other profession where information is so freely and generously given. Even if we cannot help a particular individual, advice will be given as to how and where that individual may find help. Our office frequently sends callers claim forms for the Assigned Claims Facility, or claim forms under the Crime Victim Compensation Act, without charge. Many times we receive calls from individuals who are experiencing problems with their existing attorneys. We make every effort to refer the client back to the existing attorney, and in several cases have mediated the dispute between client and attorney. This is all done without charge, and it is my sincere belief that the entire Bar benefits when complaints are handled in this manner. The discipline machinery is in place in the event that any attorney attempts to engage in unethical solicitation, and it continues to be up to the Grievance Administrator to enforce existing rules.

Not all attorneys will feel comfortable advertising their services, and not all attorneys will be comfortable with other attorney ads. To those who would creatively sculpt ads that communicate their potential availability to clients, I encourage you - to those who cannot accept the change brought by sixteen years of Supreme Court decisions, feel free to criticize and complain to the Grievance Commission whenever you reasonably suspect violations have occurred. But look at the enforcement machinery in effect, which is not currently utilized, before enacting new rules ostensibly designed to protect the public, but which in reality are designed to protect the established Bar.

There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things, because the innovator has for enemies all those who have done well under the old conditions, and luke-warm defenders in those who do well under the new.

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1 Zauderer v Office of Disciplinary Counsel of Supreme Court 471 US 626 (1985) ; In Re Priinus 436 US 412 (1985); Shapero v Kentucky Bar Association, 486 US 466 (1988); In Re R 455 US 191 (1982). For a more exhaustive analysis, please see Lawyer Advertising After Bates by James Rodgers, Staff Counsel to the American Bar Association's Commission on Advertising: an ABA publication. return

2 Advertising News, Vol 3, No. 1, August, 1993. return