Adding Insult to Injury

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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."

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Alan Prendergast has been writing for Westword for over thirty years. He teaches journalism at Colorado College; his stories about the justice system, historic crimes, high-security prisons and death by misadventure have won numerous awards and appeared in a wide range of magazines and anthologies.
Contact: Alan Prendergast