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Should Lawyers Be Allowed To Advertise?

Competition is the bedrock of American democratic society. Competition fosters better service and fairer prices. For instance, competition may force a smaller law firm to provide better and more personal service in order to compete with a larger firm which spends more money on advertising or which offers lower fees. The consumer always wins when there is competition and advertising fosters competition. Societies which abhor competition are either socialist, communist or dictatorships. According to the Adam Smith Institute, Adam Smith, LL.D., in An Inquiry into the Nature And Causes of the Wealth of Nations (1776), “…showed convincingly how the principles of free trade, competition, and choice would spur economic development, reduce poverty, and precipitate the social and moral improvement of humankind.” “So persuasive were his arguments that they not only provided the world with a new understanding of the wealth-creating process; they laid the intellectual foundation for the great era of free trade and economic expansion that dominated the Nineteenth Century.”

In a democratic society, should a particular business, trade, or profession be protected by restrictions on domestic competition, thus depriving consumers of the benefits of competition? Should lawyers be singled out to enjoy this protection from competition, at the expense of consumers? In 1908, the American Bar Association adopted the Canons of Professional Ethics. Canon 27 banned all lawyer advertising, except the use of business cards. Ostensibly, banning lawyer advertising was meant to protect the consumer and to protect the public’s perception of the profession. This was an easy, yet wholly inadequate solution. It was easy because it required very little policing, but was inadequate because it was at the expense of the consumer and did nothing to enhance the public’s perception of the profession. In fact, I believe that regulations protecting lawyers from competition help to degrade the public’s perception of the profession. Lack of competition allows lawyers to be lazy and avoid time-consuming tasks which many lawyers would prefer to avoid, such as frequent communication with clients. Competition should define how lawyers practice and the Bar Associations should follow the FTC and protect the consumer.

A national survey conducted on behalf of the American Bar Association found that “public confidence in lawyers has not improved over time due to the profession’s poor handling of basic client relationships and absence of attention to communication”. The study Public Perceptions of Lawyers, mentioned two areas in particular. The most important is that lawyers fail to develop and maintain good communication with their clients. The second, is that there is a “general misunderstanding and mistrust of lawyers’ fees”. This second problem of mistrusting lawyers’ fees is really a symptom of the first problem of failing to properly communicate with their clients. Advertising was not mentioned as a factor in the public’s poor perception of the profession. In fact, the competition fostered by advertising has caused some lawyers to advertise their fees. Memorializing even the basic fee structure helps to eliminate misunderstandings. For instance, advertising that states that the lawyer’s fee is one third of the amount recovered or that the fee is payable at the conclusion of the case, helps educate the public about the fee charged and to eliminate at least a small amount of misunderstanding. Some of my advertising goes further and states some of the additional services which I will provide for the same fee. There is no reason to afford some lawyers with protection against competition so that they can sit back and relax, knowing that they do not have to work to improve their services.

Everyone advertises and lawyers always did, even before the US Supreme Court first applied the First Amendment commercial free speech doctrine to attorney advertising in Bates v. State Bar (1977). Only the method, media and size of the audience are different now. If you don’t advertise, it’s impossible to get even one customer or client. For instance, if no one knows you’re lawyer (or anything else), then no one can request your services. If you orally tell even one person that you’re a lawyer, you just advertised, and if you had the interest of taking this person on as a client, you’re guilty of the crime of advertising with intent to advertise (yes, that’s a joke). In the past, lawyers let the public know who they are and what they do by giving out their business cards. That’s advertising! It may be a less expensive and more conservative media that advertises to a smaller audience, but it is advertising. When a lawyer gives his/her business card, he/she obviously will further advertise by saying something to the recipient and it was likely self laudatory.

The next step could be to add more information to the announcement or business card. For instance, when I started my practice, I had to differentiate myself from lawyers who had big, long deserved reputations and lawyers who advertised on TV, radio, newspapers and Yellow Pages®. To compete with these lawyers, I made a business card that looked more like a billboard on a card. Some lawyers make plastic cards with a calendar on it but I made mine on card stock and it looked a little different than other business cards. Mine advertised that I gave personal service, that I would fill out all forms and mentioned some other services I offered. I gave my cards to everyone I came in contact with during the day, from cashiers in every store at which I bought something, to taxi drivers. Some people threw my card out, but some called me. My practice took off. Five years later, I obtained my telephone number 1-800-HURT-911® and added that to the card because it is very easy to remember in case someone lost my card.

Tampa Tribune reporter Thomas W. Krause, quoted lawyer Mark Buell saying, “I think it’s demeaning to the profession to be hawking legal service like they’re cans of baked beans.” Mr. Buell allegedly said that in addition to practicing in personal injury, he also is a land acquisition lawyer and bragged that he never posted a billboard or aired a television spot. Mr. Buell spends his time among more than just one practice area. It’s more difficult, less efficient and results in less expertise when practicing in several fields such as personal injury and land acquisition. Perhaps, the Bar Associations should prohibit lawyers who practice in diverse fields. But that’s his choice, and just as the Bar Associations should not tell lawyers not to advertise, I believe lawyers should be free to practice in as many areas as they choose. That’s competition. Obviously, when practicing in more than one area of law, such as personal injury and land acquisition, it’s difficult to advertise. Do you spend your money advertising personal injury or land acquisition? The only person who comes to mind who could do a good job doing many things simultaneously, is Howard Hughes.

Mr. Krause stated that “Buell says he would rather see no advertising at all” and that “most lawyers feel that way”. I doubt that Mr. Buell took a survey of lawyers to see how they feel. Due to the popularity of group lawyer advertising services which reach just over 72% of US households and individual law firm advertising probably reaching near 100% of US households, it seems that there are quite a few lawyers in favor of advertising. The implication seems obvious. Mr. Buell is not in a position to invest money in advertising or doesn’t want to risk it. Mr. Buell wants to eliminate competition so he can sit back and relax and wants the protectionism prior to Bates v. State Bar (1977) put back in place. Since this won’t happen, Mr. Buell will have to improve his service in order to compete. Upon building a reputation of providing excellent service, clients will seek him out and he can easily compete with lawyers who advertise and become successful without spending a lot of money, just as I did. I’ll bet that if I offered to give him cases from my web site or advertising with 1-800-HURT-911, he’ll take them.

Tribune reporter Thomas W. Krause also wrote that “Many lawyers on Buell’s side of the debate say even a novice lawyer with no trial experience can advertise”. So what! Should novice lawyers also be banned from giving out their cards? FTC regulations already prohibit false advertising, which means that a lawyer without trial experience cannot legally advertise that he or she has trial experience. There isn’t a profession or business in the United States that requires a level of expertise in order to advertise, however, it’s interesting to note that from a practical standpoint, Mr. Krause is wrong. I haven’t seen one personal injury lawyer advertising on TV in New York who isn’t substantially experienced and a review of the display ads in the classified ad section of major New York newspapers revealed advertising from experienced law firms. Additionally, novice lawyers do not have the financial wherewithal to advertise on TV or to manage an office with a substantial number of clients obtained from TV advertising.

Market conditions usually cause only experienced lawyers to advertise. Due to the cost of advertising, usually only lawyers with substantial experience in their field will be willing to spend the money necessary for a sustained advertising campaign. Advertising will result in the lawyer handling more cases in the field advertised. The increased caseload in the field advertised will result in a higher degree of experience in that field. Since lower income individuals and the disenfranchised usually do not personally know a lawyer, they are likely to call a lawyer they see advertising on TV or in the Yellow Pages or newspaper to find a lawyer who is more likely to be experienced in the field of practice being advertised. Higher income individuals rarely look to advertising and are far more likely to call a lawyer they personally know, even if that lawyer is a “general practitioner”, and less experienced in the field of practice needed. It is ironic that lower income individuals will likely get better representation than upper income individuals.

I have worked for two law offices, one which did not advertise and one which did. The lawyer who didn’t advertise, represented upper income people from the community for all kinds of matters including real estate closings, leases, contracts, estate planning and personal injury. Later on, I worked for a large personal injury law firm which had a display advertisement in a major newspaper and later advertised on TV. This firm only represented personal injury clients who were mostly lower income clients calling from the advertising. This law firm had knowledge and experience far beyond that of the previous law office I worked for. Additionally, if a lawyer doesn’t practice in personal injury everyday, there is no way that the lawyer will have sufficient experience and knowledge to know the true value of a case. The Supreme Court opened up advertising to professionals, not so that professionals can advertise but because of the right of the public, and particularly the lower income public, to have access to information. Advertising accomplishes this goal.

Apparently neither Mr. Krause, nor Mr. Buell, know of any inexperienced lawyers who are advertising, since they didn’t mention the names of any such novice or inexperienced lawyers. Mr. Krause did mention a client in Florida who was unable to find a lawyer to take his case, until he found the law firm of Colling and Gilbert on a TV commercial. The client said, “I just picked up the phone and called them. They came and talked to me, took the case and won it.” Mr. Krause also mentioned one other client who was unhappy with the lawyer he found in the Yellow Pages, because the lawyer was not returning phone calls. This is not an example of a problem with advertising. This is an example of poor communication skills and poor law office management, which according to the American Bar Association is commonplace, with or without advertising. If Mr. Krause or Mr. Buell suggests that the lawyer’s failure to return telephone calls was a result of overburdening his law office because of advertising, then this is precisely how Mr. Buell can compete with lawyers who advertise. He can offer personal service.

Furthermore a novice lawyer with no trial experience can do his/her first trial on a case obtained from a business card. In fact, I signed up my first client not from advertising but because I gave him a business card. At that time, I had no trial experience and little experience in personal injury. Being my first case and not having had much experience, I couldn’t afford to advertise. This client previously obtained a business card from a general practice lawyer who signed up the case and wanted to settle it for $75,000. The client was upset with the proposed settlement amount when he met me. I substituted the previous lawyer and settled the case several months later for $310,000. It doesn’t matter where the client came from. If a client calls me from my business card, the client will not know if I have any trial experience until he calls and asks. Additionally, knowledge is necessary, trial experience isn’t necessary. I have several lawyers with substantial trial experience who have relationships with me.

It was also reported that these lawyers (those who don’t advertise) claim that “In the worst situations, disreputable firms can draw large numbers of clients with flashy ads, settle a high percentage of the cases for quick money, and pass the rest to other law firms.” My 1-800-HURT-911 TV commercials have a memorable 1-800 vanity telephone number, attract attention and I’m proud of it. They’re also professional looking and provide valuable information to people who were hurt in an accident. I also require the lawyers advertising with 1-800-HURT-911 in other territories to be a member of their state trial lawyers Association or ATLA. It’s the general practice lawyers who don’t do much personal injury, don’t advertise and settle cases for too little and quick money.

If there are any disreputable law firms, they’re not advertising, they’re using runners. Runners diminish the value of advertising to legitimate law firms and are the biggest problem facing personal injury lawyers today. While some lawyers want to ignore the existence of runners hoping not to bring attention to the problem, like the Ostrich, they’re burying their head in sand. Those who use runners, don’t want to even mention the word. Runners are out there in the public every day. People in hospitals and ghettos everywhere are visited by runners offering large sums of money to potential clients long before they can turn on the TV, pick up the phone and dial 1-800-HURT-911. I’ve had several cases where not one but two law firms, using runners, were simultaneously trying to substitute my office. Lawyers using runners, not advertising, are responsible for besmirching the reputation of lawyers. Even worse, runners, fraudulent lawyers and doctors drive up medical, liability and administrative insurance costs which causes insurance companies to push hard for tort reform and makes it difficult to settle legitimate claims. Instead of going after lawyers who advertise, lawyers should go after lawyers who use runners. Making such an effort public will have the effect of making some of those lawyers think twice before continuing with runners and will show the public that we can and will police our own profession, keeping it ethical and professional.

Lawyers who choose not to advertise or who cannot afford to advertise can still compete. Such lawyers have much to offer potential clients and can compete in areas where the larger law firms who advertise usually cannot. Lawyers who do not advertise can offer many services with a more personal touch. For instance, I used to tell potential clients that I would accompany them to no-fault physicals which a larger law firm would usually not do. Such lawyers can inexpensively and very effectively advertise their personality. Many clients would like to know the individual who they are hiring as opposed to which law office they’re hiring. Many clients do not want to be represented by a large firm because they are afraid that they will not get the personal service they want.

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