Adding Insult to Injury
We help injured people...that's our job!"
"I know how to handle insurance companies; I used to be their attorney!"
"I will fight for your rights!"
"Been in an accident? Got your check yet?"
On the tube there's the guy in the tank who runs over a car, the woman in pearls urging you to call the Injury Helpline, and any number of earnest talking heads sitting in front of a wall of law books. Turn to the Yellow Pages, and you've got your choice of snarling beasts and button-down hired guns: S. Bryan "Bulldog" Moore, Cliff "Kodiak" Enten, even Dan "Nationally Recognized Trial Authority" Caplis, whose full-page, full-color-insert claim to fame is that he's been quoted by Time, the Washington Post, NBC, CNN and half a dozen other major media outlets.
Rubbing up against these exhibitionists are hundreds of discreetly listed attorneys who would sooner give up their Rolexes than ballyhoo their services like common tradesmen. Some even want to muzzle the advertisers, for fear they're dragging down the reputation of the legal profession--a charge that, on its face, sounds a lot like blaming Blackbeard for giving pirates a bad name.
Nearly twenty years after the U.S. Supreme Court struck down state prohibitions against lawyer advertising, the pendulum is swinging back. Since 1990, several states, including Florida, Texas, Iowa and New Mexico, have tightened their rules on lawyers' TV and radio commercials or direct-mail solicitation of prospective clients. And Colorado may soon join their ranks, a prospect that has attorney advertisers and their supporters, including a national consumer group, crying foul.
Last month the Colorado Bar Association's board of governors met at the University of Colorado Law School to consider amending the state's rules of professional conduct regarding advertising. A voice vote wasn't good enough; a show of hands was also too close to call. Finally, boardmembers marched one by one up to the podium to give their yea or nay and wound up approving a watered-down version of the proposed changes by a vote of 41-38. While not as draconian as earlier drafts, the measure would limit the use of testimonials, ban the use of actors posing as attorneys, and require certain disclosures about fee arrangements, as well as a thirty-day waiting period before direct-mail solicitation of accident victims.
Several lawyers who advertise say the new rules would have little effect on their current commercials, but they still consider the changes unnecessary, burdensome and even silly. "To get these rules, I think they watched Jay Leno making fun of attorneys," says Janet Frickey, daughter of advertising pioneer Norton Frickey. "By the time you get all these disclaimers in, it'll be like a car ad. It's a little rude."
The new rules now go to the Colorado Supreme Court, the primary authority governing attorney conduct in the state, which could adopt them, modify them or reject them on First Amendment grounds. But regardless of how the court decides, it's unlikely to end the controversy. This isn't simply a high-minded argument about professional ethics and free speech. It's also about money--lots of it.
Although less than 10 percent of the CBA's 13,000 members have advertised in some fashion, the issue has generated deep fault lines within the bar, particularly among personal-injury attorneys. Lawyers critical of advertising suggest that their most brazen brethren are driving down jury verdicts, misleading clients and making things tougher for accident victims. Advertisers say they're being scapegoated for the woes of an overcrowded profession and point to research indicating that, far from complaining, the public is being well-served by lawyer ads. The effort to rein them in, they claim, is coming not from consumers but from powerful factions within the CBA and the Colorado Trial Lawyers Association, an organization of plaintiffs' attorneys, most of whose members compete directly with the advertisers over the meat and potatoes of the business: auto litigation.
"The organized bars, almost without exception, oppose advertising," notes Stuart Kritzer, an advertiser who served as a dissenting voice on the task force that drafted the CBA proposal. "The stated reason is that it diminishes the image of lawyers, but it also has changed how they get business. Many lawyers refuse to accept the fact that without advertising, they still wouldn't be doing as well as they used to, because there's more competition."
In his minority report on the proposed rules, Kritzer blasted the task force and the CBA's ethics committee for approving the changes without sufficient research or public input; he also raised the specter of "the inevitability of litigation" if the rules were adopted by the state. He wasn't blowing smoke. Last year, in response to a lawsuit filed by advertisers and other interested parties--including two ad agencies and a broadcasters' association--a federal judge threw out similar restrictions on advertising that had been adopted by the State of Mississippi and ordered the state to pay more than $100,000 in attorneys' fees and costs.
"I think what they're doing in Colorado is absolutely appalling," says David Vladeck, director of the Public Citizen Litigation Group in Washington, D.C. "We sue state bars that do things like that."
Vladeck's group, which was launched by Ralph Nader in the 1970s, joined in the Mississippi case on behalf of its members and has taken a similarly consumer-oriented position against the Colorado rules. "Advertising draws down prices for the public. People see that there are others out there capable of handling their cases at lower cost," says Vladeck.
If the CBA's proposal is adopted and local advertisers decide to challenge it, Vladeck says he'd be "delighted" to join in a lawsuit against the state. But proponents of the new rules point out that tougher measures in other states--Iowa, for example, which doesn't permit any TV advertising by lawyers--have survived legal challenge, and they insist that Colorado's rules would pass constitutional muster.
"I believe if lawyers don't do a good job of self-regulation, someone else is going to do it," says CBA president Phil Figa. "I don't think this is a radical step, and it's certainly not a slap in the face to advertisers." As he sees it, the "relatively modest rule changes" present the state with no "legal exposure" whatsoever.
"Of course," he adds, "anybody can sue anybody."
The notion that lawyers are a priestly class, not to be sullied by the crass commerce of the marketplace, is of fairly recent origin. Not only did young Abe Lincoln hang his shingle, he took out ads in Illinois newspapers promoting his services; so did hundreds of other hungry attorneys of his time. It wasn't until the early twentieth century that the American Bar Association and affiliated state bars began to prohibit ads and other forms of self-promotion as "undignified."
The ban persisted until a 1977 Supreme Court decision that rejected the bar associations' qualms in favor of free speech. But the top justices in the land have never been that comfortable with advertising, either. Warren Burger supported the relaxed rules but said he'd never hire an attorney who advertised, and Sandra Day O'Connor has frequently expressed her distaste for the practice. Last year the Supreme Court affirmed Florida's right to impose a thirty-day waiting period on mail solicitations targeting accident victims, which some bar associations have regarded as a green light for proposing even more restrictive rules.
"The Supreme Court has a bit of schizophrenia over this," notes CBA president Figa.
So do a lot of other lawyers. Figa himself has seen the controversy from both sides now. Before becoming president of the CBA last July, he was on the task force that came up with the new, more restrictive rules. But as a member of the CBA's ethics committee in the late 1970s, he prepared a report for the board recommending that Colorado liberalize its advertising rules in line with the 1977 Supreme Court decision.
"The board sort of shouted me down," he recalls. "I was embarrassed and humiliated. I left that meeting feeling very dejected--until a tall gentleman came up to me, introduced himself as [Colorado Supreme Court Justice] Lou Rovira and asked for a copy of my report."
In the years since, lawyer spending on TV commercials has gone up dramatically, from $5.5 million nationwide in 1980 to $128.8 million in 1994, according to the Television Bureau of Advertising; it's estimated that the top dozen or so advertisers each spend more than $1 million every year. Most of the ads have a kind of cookie-cutter sameness to them--one Norton Frickey subsidiary, Network Affiliates, cranks out staid commercials for firms all over the country--but every major market has its share of showboaters, too. There's the Florida spot in which a fidgeting boy tells a barber that if he cuts his ear, the lad will call his attorney ("No client is too small to benefit by our legal protection"); the New York mortgage lawyer who reclines across her desk in a leather miniskirt (according to the Associated Press, she went from five closings a week to forty or fifty); and, of course, the hard-sell, got-your-check-yet ads that seem to irk some viewers but exert a horrible fascination on others (why is that woman driving a car without a seat belt, waving a check and gloating that some "incompetent" hit her?).
Although he finds some of the ads "offensive as a matter of taste," Figa says he's less concerned with aesthetics than ethics. "Look, we're not selling soap here," he notes. "We're selling our services as fiduciaries, and the public needs a heightened awareness of what the pitfalls are."
For example, Figa says, he's heard complaints about young lawyers who advertise heavily and quickly build more of a practice than they can handle, relying on paralegals or outside firms to carry the load. "They're victims of their own success," he says. "They don't have much trial experience, and when things get tough, they refer the matters to more experienced counsel or they settle their cases too cheap. The more experienced trial lawyers say they get contacted all the time."
But advertisers say grievance procedures already exist to protect the public from misleading ads or incompetent lawyers. "People aren't stupid," says Stu Kritzer. "Advertising will get them to make the call, but it won't trick them into signing a fee agreement."
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.
Anderson says he's tried to "maintain a collegial discussion" with the advertisers, but the debate has grown quite heated at times. Indeed, he fired one of the most strident volleys in a 1994 letter published in Trial Talk, the CTLA's magazine, in which he likened advertising lawyers who wrapped themselves in the First Amendment to "dressing a bag lady in an Oscar de la Renta evening gown."
"I do not dispute our colleagues' First Amendment right to advertise," the CTLA's president-elect wrote. "I also do not dispute the right of the Neo-Nazis to march in Skokie...The whole point of advertising is to deprive the public of choice, to manipulate the viewers' minds so they eliminate other possibilities and choose the advertising lawyer."
The letter drew outraged responses from advertisers, particularly Jewish lawyers who took exception to what they considered an odious comparison to Nazidom. Anderson apologized in a subsequent letter and said that no such comparison was intended, but he stuck by his main point: Not only is advertising misleading, he insisted, but it reinforces in juries a negative opinion of personal-injury lawyers and their clients.
The trial lawyers Anderson talks to "are concerned about the impact of advertising on verdicts," he says now. "In jury selection, people say they're concerned about lawsuit abuse, that there must be a lot of lawsuits going on if these people can appear on television day after day asking people to come to their doorstep."
The public perception of lawyers as ambulance chasers has made it increasingly tough to win in court, he adds. "I've got several rear-end collision cases now. They're extremely difficult, even with the most seasoned attorneys handling them. In fact, they're being lost half the time. Why are they being lost? Is there a problem with juries believing that this is just one more crazy whiplash case? I don't sit in the jury room, so I can't say, but you've got to be concerned about anything that validates the potential juror's belief that there are lawsuit-happy people in Colorado."
Advertisers, though, say that the public myth of a litigation explosion is the result of insurance-industry propaganda, not commercials. They contend that over the past decade, tort reform and a glut of competition in Colorado have done more to drive down jury verdicts than all the Norton Frickey ads ever aired and that the public isn't the least bit upset about advertising. "There's never been a cry from the public at all," says Stephen Kaufman.
"I don't necessarily agree," responds Anderson. Clients and friends who've "had the opportunity to stay at home in the daytime" and been barraged with ads have told him that "they thought this made the profession look like it was overrun with greedy, marketeering lawyers," he says.
But if the public's fed up, they're not complaining to the right people. Last year, out of 1,550 written complaints about attorney conduct filed with the Colorado Supreme Court Disciplinary Counsel, only eleven dealt with advertising--and all of those had to do with direct-mail solicitation.
"I don't think we've had one in a long time related to TV and radio," says Michael Henry, the court's chief investigative counsel. "Most folks, if they don't like it, they just hold their nose. But they don't get around to filing complaints here. Even if they did, we wouldn't deal with it, because advertising is a First Amendment right that attorneys have, as long as it's not misleading."
Most of the complaints Henry receives concern attorneys accused of neglecting cases, being incompetent, failing to communicate with their clients or being dishonest--all ethical violations that can lead to disbarment, suspension or censure. Ads featuring miniskirts and car crashes fall into another category altogether.
"We do not attempt to discipline attorneys for unprofessional conduct," Henry explains. "It's impossible for us to draw the line as to what's unprofessional and what isn't, what offends people and what doesn't."
Attorneys have a hard time drawing that line, too. The current president of the CTLA is Larry Trattler, whom Kritzer describes as a "born-again nonadvertiser." A decade ago, Trattler was part of Sarney, Trattler & Waitkus, a high-profile personal-injury firm best known for its TV commercials depicting a courtroom scene in which attorneys and the judge chant "Mumbo jumbo, mumbo jumbo" in front of a bewildered client.
That was a long time ago, Trattler says, adding that today he doesn't feel comfortable discussing his personal views on advertising. Although the CTLA's executive committee has recommended that the task force proposal be sent on to the Supreme Court, Trattler insists the organization as a whole hasn't taken a position. "We just thought it should be forwarded to the Supreme Court so it could be debated fully," he says.
Stuart Kritzer watches Stuart Kritzer on a video monitor in his office. The commercials are low-key, warm-and-fuzzy spots, just Kritzer sitting in front of a roaring fire, talking about how, in a time of crisis, the average Joe needs an advocate in the legal system. Behind him is a framed photograph of rosy-cheeked children. Several of the segments seem impromptu and are, in fact, unscripted; Kritzer just lets the camera roll until he comes up with a thirty-second sound bite he likes.
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.
Although the changes now on the table seem minor, Vladeck suggests they may "force people into very bland, very sterile advertising that is either unhelpful to the client or not economically viable for the lawyer." Janet Frickey says she will probably have to change an ad that features a "distinguished older gentleman" as a spokesman in order to clarify that the man is not a lawyer. Kaufman, who has already cut back on commercials in favor of the Yellow Pages, frets about "the time you have to put into conforming with bureaucratic nonsense," such as a requirement that firms maintain a four-year log of when and where ads are aired or published.
"If we didn't advertise at all, it wouldn't be the end of the world for us," Kaufman says. "But it's still wrong. This is supposed to be a free country."
No one, it seems, is more outraged by the ad crackdown than the huckster emeritus of lawyer advertising, Norton Frickey. Now seventy and retired, Frickey sat on a CBA committee on advertising at the time the Figa-Anderson task force was formed--a committee totally bypassed by the process. "As far as I know, they never even looked at our research," he snaps.
Frickey still smarts over the way other lawyers reacted when he first started advertising. "I was treated like a bad disease," he says. "They wouldn't speak to me. Ordinary professional courtesy disappeared. Then they started a whispering campaign: 'He's not a good lawyer. He's just a settlement mill.' But then we started getting million-dollar awards."
Celebrity and personal success have eased the pain of being regarded as a pariah by his tonier colleagues, Frickey says. People still greet him in restaurants and thank him for providing affordable legal services. "The little games they're playing now don't bother me," he says. "We're an institution. The people it will hurt are the young lawyers just getting into advertising."
And the clients?
"These blue-ribbon, silk-stocking lawyers should come to our office for one day and see the kind of people we represent," he growls. "The $300-an-hour boys would never see these people in their lifetime. Believe it or not, we're their only access to the courtroom.
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