Via Twitter, the law blog world and a few local lists, I’ve spent the better part of a week thinking about lawyer advertising. First thing: I am biased. I believe that the law is a profession. As such, our clients come first, the justice system next, and we come third.
The U.S. Supreme Court long ago said that truthful lawyer advertising is subject to First Amendment protection. There is good reason for that rule. But–and this may seem like heresy–too many believe that the inquiry ends there. The rights secured by the First Amendment are critically important. But so are the 5th amendment rights of equal protection, the 6th amendment rights of the accused, the 7th amendment right to trial by jury, and the 14th amendment right to a fair trial.
The problem is not advertising, but the content and methods that lawyers use to reach prospective clients. A recent discussion with a nameless younger lawyer highlights the problem. He proudly sends accident solicitation letters to Oregon drivers who have been in motor vehicle collisions. He defends the process by saying that he provides important information to consumers, that insurance companies will take advantage of unsophisticated consumers, and that he is sticking it to the man.
The same young attorney trumpets on his website his aggressive and hands-on approach to handling motor vehicle collisions. The same young attorney recently posted on a local list a question about motor vehicle collisions that revealed a stunning lack of mastery of the subject matter area.
In discussions about lawyer advertising, the one thing that lawyer advertising advocates invariably mention is that they have to make a living, too. Sometimes they add that we who criticize are really just trying to squelch competition because we got ours.
Whatever success I’ve had in building a law practice has come through years of hard work. It took me nearly a decade to attain basic mastery in the practice of law. I am in my 25th year of practice now. My particular areas of practice are such that some years I earn a lot of money, and some years I do not. There are simply no guarantees of fabulous income.
So there are a few things nagging at me here. The problem is the advertising lawyer who resort to ads that make you and me wince do not recognize any obligation to the justice system.
Here are some not-very-far-fetched examples. How about screaming, boosted volume TV ads: CALL 1-800 LETS SUE!!! Or how about the snake-oil peddlers who sell internet marketing for lawyers and then spam the firm web page across the internet. Or there’s the unsolicited letter mailed or emailed to people who have been in motor vehicle accidents about how “I can help you and/or your loved ones in this time of need” for a mere third of the recovery.
Don’t get me wrong. I see fabulous web pages out there. I know attorneys who provide great information about their practices and their areas of law by use of advertising. I see some of my colleagues’ use of media and think that they are doing great work. But none of them are racing to the bottom through the bad ads.
Invariably, those who are running in the race to the bottom use one or all of the following excuses: 1. “Everyone is doing it.” 2. “It’s perfectly legal.” 3. “I’m just trying to make a living.” The problem is that each one of these “legal” marketing approaches cheapens the justice system.
Trial lawyers wonder why the public holds them in low regard. Part of the answer comes from the work of very powerful and wealthy interests dedicated to making sure that consumers surrender their rights to trial by jury. If you’ve heard the phrases, “frivolous lawsuit,” or “lawsuit lottery,” you’ve been exposed to their handiwork.
And we who dare to represent consumers know this. We know it in our bones. Still the advertisers are so intent on getting theirs that they simply do not care. Because that’s what it’s about at the bottom: Getting theirs. So the mass marketers run ads to collect cases that they will never try and in doing so give the Cato Institute and various anti-consumer forces great material for their campaigns to lock consumers from our courthouses.
For those of us dedicated to the proposition that this is a profession, every bad, screaming ad, every invasive solicitation letter, every SEO spam comment is another nick in a badly damaged system of justice. Even so, those of us who dare to demand higher standards will not go quietly into the night.