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.