Adding Insult to Injury

Pulling the plug on attorney advertising could get somebody sued -- including the State of Colorado

Kritzer also believes it's sheer hypocrisy for advertising critics to complain about getting referrals from advertisers. "I know of one very large case, a referral that generated a multimillion-dollar fee, that came to an old-line personal-injury firm, one of whose main partners has been critical of lawyer advertising repeatedly," he says.

Two years ago, then-CBA president John Dunn of Vail appointed a special task force, including Figa and several others, to look into the state's ad policy. The composition of the task force quickly became a sore point with advertisers, since no advertising attorney was even consulted until Kritzer was invited to join last fall. Janet Frickey subsequently joined the group, too, but by that time, "it seemed to me they already had their recommendations ready," she says. "It looked like the fix was in."

Two of the task force members also serve on the CBA's ethics committee, and the task force's proposal was approved by that august group in a matter of weeks--a process that, in other cases, can take months or years. Figa insists that was because most lawyers want tougher restrictions on ads, but Kritzer disputes that theory. When the CBA sent a survey on the issue to its membership, most of the returns were anti-advertising--but there were only seventy respondents. A second survey generated only a slightly higher response.

"Seventy responses out of 13,000 is statistically insignificant," Kritzer argues in his best courtroom manner. "The only comfort to be gleaned from that survey is that the lawyers of this state don't really care. This movement is being driven by a couple of hundred lawyers who, for reasons having to do with stylistic preferences or anti-competitive sentiment, are opposed to advertising. Some of these people didn't want fax machines in their offices, either."

Stephen Kaufman, of the law firm of Kidneigh & Kaufman ("We help injured people"), goes further. "A lot of the initiative came from the Colorado Trial Lawyers," he says. "Leland Anderson carried the ball there, but he didn't leave it there. He became very active on the CBA task force. The drafts have been, by and large, Lee's work."

Anderson, a well-known personal-injury attorney and lead counsel for the victims of the 1987 Berthoud Pass bus crash, served as CTLA's president last year; in fact, all three partners of his firm, Sears, Anderson & Swanson, are past presidents of the organization. Anderson says his concerns about advertising don't have much to do with competition--"I've got as many cases as I can handle"--but with honesty.

"I'm primarily concerned with truth in advertising," he says. "I'm not in favor of a lot of puffery. Offering legal services is not like selling a car. Actually, there's a lot of advertising right now that would be just fine [under the new rules], with maybe a little bit of tweaking."

Anderson says he "started thinking a lot more" about the advertising issue during the course of a recent showdown between the Federal Trade Commission and the CTLA. The CTLA had sought to crack down on lawyers who solicit clients by mail, threatening members who did so with expulsion; the FTC responded by demanding that the organization sign a consent decree that would prevent it from taking action against members engaged in non-deceptive advertising and solicitation. The CTLA refused.

"Our membership concluded these issues are too vital to simply sign off on a consent decree," Anderson says. "Not too long ago we got a letter from the FTC saying that they'd dropped the matter for the time being."

Kritzer, who also serves on the CTLA's board of directors, says the group's wrath centered on one rogue lawyer who'd been accused of violating the CTLA's ban on direct mail but has since "returned to the fold." "They couldn't get over how much business this guy was getting," he recalls. "They wondered how he could handle it competently. My feeling was, if he wasn't handling it, the grievance committee would hear about it."

Early drafts of the CBA task force's proposal, which Anderson helped write, included several tough provisions that have since been dropped, including an outright ban on all testimonials or endorsements, a prohibition on the use of dramatizations or background sound ("other than instrumental music"), and lengthy disclaimers advising the public that choosing a lawyer is an "extremely important decision" that "should not be based solely on advertisements or self-proclaimed expertise." Advertisers complain that such restrictions would have made their ads unwatchable and would have eaten up valuable air time with disclaimers; as it stands, the final proposal prohibits testimonials that imply a prospective client can achieve a similar result and requires that any mention of "no recovery, no fee" be accompanied by a warning that the client is still liable for court costs.

Anderson defends the measures as sensible and reasonable. Testimonials, he suggests, are inherently misleading because they "carry with them a promise of good results. Anybody in this business knows that no matter how hard you try, results can't be guaranteed. I tend to believe results shouldn't be suggested."

But advertisers regard the new rules as a selective kind of censorship. Kaufman, for example, doesn't see any difference between an honest testimonial--"This attorney did a good job for me"--and the kind of discreet referrals from satisfied clients that traditional firms have always relied on to get business. Media executives, including KUSA president Joe Franzgrote, have also written to the CBA expressing their concerns about how the rules might impact commercial speech, pose a restraint of trade--and affect their own bottom line.

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I never noticed any particular difference among Texas lawyer ads compared to what was described in the beginning. Still pretty in your face. I know a <a href="">Chicago personal injury attorney</a> that is really, really opposed to lawyer advertising, and I don't think the Blackbeard is to pirates as Ad lawers are to the law field is a good comparison.