"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."