Adding Insult to Injury

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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."

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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