Adding Insult to Injury

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

After five or six commercials, Kritzer shuts off the VCR. "That's my house," he notes. "That's a photograph of my kids. That's me."

Since he doesn't use actors, testimonials or direct mail, Kritzer doesn't anticipate that the proposed rules would change his ads at all. Yet he's been the point man for the advertisers in the current battle, defending even the tackiest commercials of his competitors. What burns him the most about the anti-advertising crusade, he says, is the implication that lawyers who advertise must be "substandard in quality."

"The problem is they can't get around, for example, me," he says. "I have a Martindale-Hubbell AV superior rating. That's the highest rating an attorney can have, and I got that from my fellow lawyers. Conversely, there are lawyers that don't advertise who aren't very good. There are lawyers in large firms downtown who are drunks, who are drug addicts, who steal clients' money out of trust accounts. The surveys say that the public's opinion of lawyers is based on their personal contact; if you have a bad lawyer, you're not going to think much of lawyers."

Kritzer is big on surveys. He cites a two-year-old study conducted by the ABA's Commission on Advertising that surveyed people on their opinions about lawyers, showed them various kinds of commercials and then surveyed them again. The results suggested that advertising has virtually no effect on the public's overall opinion of lawyers; tasteful, stylish ads even leave a favorable impression of lawyers who advertise that way. Yet the CBA task force ignored those findings, Kritzer says, and declined to conduct its own research in Colorado--even after he suggested it could be done at no cost to the bar association.

"This is the only jurisdiction that I've heard about where they refused to do the homework other states did," Kritzer says.

Anderson says he has "a great deal of skepticism" about the ABA study, since it was based on one shopping mall "intercept" in a Chicago suburb and involved only a brief exposure to three commercials. "You see one ad one time; that's not like being bombarded by the same ad day in and day out," he notes.

Research aside, the CBA's Figa says that many lawyers just have a gut feeling that advertising is a big part of their image problems. "There is a sense that the image began going downhill in the minds of the public when advertising began," he says. "I don't know if there is a cause-effect relationship, but there is cynicism about lawyers playing on emotions of greed and revenge through advertising."

But David Vladeck, of the Public Citizen Litigation Group, says that argument won't hold up in court; public hostility toward lawyers is probably as old as the profession itself. "Look at history," he says. "You can't read Shakespeare without seeing contempt for lawyers. So much of what lawyers do breeds contempt for a good reason. Anybody who has to watch Alan Dershowitz on TV, justifying his role in the O.J. Simpson trial, would probably want to go out and shoot every lawyer."

It wasn't so long ago, Vladeck adds, that state bar associations could actually discipline attorneys who were charging less than mandatory rates for certain services. Advertising helped to change all that, making legal services more affordable and encouraging such innovations as free initial consultations and cut-rate divorce and bankruptcy filings. The shift has created a class war among attorneys, Vladeck suggests, with advertisers in the decided minority.

"Ninety-five percent of the lawyers in this country serve the rich and corporations," he insists. "There really aren't that many lawyers who make a career out of serving ordinary people."

Janet Frickey agrees. "It's probably embarrassing for lawyers to go to their country club and have someone laugh about what Frank Azar or even our firm is doing on TV," she says. "But I think we represent a cross-section of people who didn't have access to the system before advertising. Some of these big product-liability cases would never have happened without advertising, either."

Some advertisers even characterize their ads as a kind of public service. Kaufman notes that his commercials inform people about their rights to recover damages from their own uninsured-motorist coverage, the time limits for filing certain types of claims, and so on. "It still benefits them, even if they don't sign with us," he adds.

Anderson says he doubts that the advertisers are targeting a different class of client than his firm. And in correspondence with the task force, he argued that if clients who rely on legal advertising do tend to be poorer or less educated, then such people "obviously require more information and more precise disclosures concerning the provision of legal services than more sophisticated consumers."

Kritzer regards such a position as "paternalistic and somewhat disingenuous." People aren't fooled by good-looking actors or driven to make "irrational decisions" by dramatizations and background music, he insists. "The public is smarter than these comments would suggest," he says.

Ironically, big firms have always marketed themselves, albeit discreetly, through slick brochures, in-house marketing departments and what Kritzer describes as "dog and pony shows" for prospective clients. After Denver's economic shakeout in the early 1980s, several 17th Street corporate firms began to diversify, opening up divisions dealing with personal injury, divorce, bankruptcy--all the time grumbling about attorney advertising. When Kritzer pointed out that an early draft of the task force's proposal would have required those firms to slap wordy disclaimers on their marketing material, the language was modified to focus specifically on the electronic media (including the Internet, which promises to be a nightmare for regulators, since an attorney's Web page has a potential global audience). Eventually, the disclaimer idea was dropped.

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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.