Our own worst enemies-lawyer ads, solicitation letters and internet marketing

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.

 

Quick away

Maybe the hardest thing about my busy solo law practice is taking time off. Between one child still at home, a busy, hard-working spouse and the demands of my case load, I am hard-pressed to get away.

So I jumped at the chance when our schedules aligned. Even with all we have going in our professional lives, Janet and I decided that we could squeeze out a 5-day vacation.

I’m not sure exactly who said it first–maybe it was me, “When the going gets tough, the tough go on a road trip.”

We’re off to Southern Oregon. We won’t go too far–a lodge on the Rogue River and a few nights in Ashland–but I’m sure it will be the perfect tonic for two overly-busy people who share a life. So I’ll be dark and quiet from my usual interwebz haunts for the next several days.

I won’t be far or gone for long. While I’m away, I know that Marla and Kristen, my awesome and reliable team, will keep things on track. They’re good that way. Very, very good.

 

Nero fiddles: Oregon House passes Code of the West

My coffee-spitting moment came early this morning while reading The Oregonian. Apparently, the Oregon House of Representatives passed the “Code of the West” yesterday.

We are in a major budget crisis. We face huge issues over health care coverage and school funding, our public structures are crumbling for lack of investment, and predatory businesses want to destroy consumer protection. All of that is in play. Yet, the Oregon House wants to ignore the people’s business.

There are actually two offenses here. First is the offense against the people and the treasury of Oregon. Each day the House is in session, we spend money. On them. So if they are going to convene, the House owes it to us to spend the time and money on things that matter.

Let me be clear. I generally respect the work of the Oregon Legislature. If you wander the halls, you will find quiet workers and visionary leaders. Calling out the Code of the West goofiness should not be viewed as indictment of all that is good there.

The proponents of this Grand Action have a bigger problem and more egg on their face. Those of us who grew up in the western U.S. know that we do not need politicians to pass laws to tell us how to live. I imagine most true Westerners are laughing heartily at this idea. Think about it: A group of self-important jerks gets ahold of  a pen, finds some paper, drafts a bill, amends the draft, holds hearings, debates, and then votes. And that vote is simply to enact the values that Oregonians live by. Kids-your clown noses do not look pretty.

Memo to the Oregon House: Get to work or go home. We don’t need this kind of foolishness.

Culinary schools face regulatory pressure

Here is the link to a recent NPR story regarding culinary schools and the disconnect between culinary careers and the costs of culinary school. Interesting quote from the of Career Education Corp. executive Kirk Bachmann about the calculations of placement rates. He notes that CEC schools do not include Starbucks barristas in their placement rates. As we say at the beginning of a deposition, “Swear the witness. I have a few questions.”

On a side note, Le Cordon Bleu Portland/Western Culinary Institute recently announced plans to drop its associates degree.  We’ll be interested in finding out more about that as well.

Meanwhile, our class action case continues forward against these defendants.  Cases like this are slow, but we are on track.

 

I am not dead yet: Oregon Unlawful Trade Practices Act and insurance reform

Kudos to Steve Duin of  The Oregonian for this column on Azusa Suzuki’s struggle to prove that she is entitled to Regence Blue Cross supplemental medicare insurance coverage for medical expenses incurred in a motor vehicle collision.

Apparently Regence decided that Ms. Suzuki was dead and–for that reason–Regence decided it did not need to pay her bills. She worked for years to prove she’s very much alive. It sounds almost comical. But if you watch the linked video or read the article, it’s apparent that outrage is the only response.

The Duin article points up a serious problem in Oregon. Consumers are at the mercy of insurance companies. When they do not pay claims, when they violate Oregon law, and when they do not fairly adjust claims, Oregon consumers are virtually out of luck. The problem is a lack of consumer remedies against insurance companies that misbehave.

Senator Chip Shields is trying to fix that. He has introduced a bill–SB 719–which protect Oregon consumers by making insurance companies meet the bare standards set out in Oregon’s Unlawful Trade Practices Act.

In this session of godawful Salem bills, it’s nice to see the champions of consumers are still fighting for the rest of us.  Appreciation is due–as always–to Sen. Shields. Consumers have few friends in the Oregon legislature. He is one of our best.

Comcast Oregon late fee class action settlement–cable TV

We are starting to get calls and emails about the class action settlement with Comcast.

Here is the link to the settlement information

A few recurring questions:

1. The settlement applies to Oregon Comcast subscribers

2. It is limited to subscribers who paid late fees on Cable TV bills.

3. The link above takes you to a claim form which you must open, print, fill out and mail.

4. The mailing address for claim forms and deadline information for filing the claim are also in the link posted above.

More questions?

Contact us here. I am class counsel and will do my best to answer your questions.

Debt trap: for-profit colleges

One of the best articles I’ve seen recently on for-profit colleges. Please, please, please read this if you or anyone in your family is  thinking about a for-profit school.

From the trenches, we continue to pursue our class action against Le Cordon Bleu Portland (formerly known as Western Culinary Institute) and its parent, Career Education Corp. Consumer fraud class actions are difficult cases.

Best to avoid the damage in the first place by saying no to overpriced for-profit colleges.  Don’t let the slick marketing fool you; you’re often better off at a less-costly community college.

One more thing. To our leaders in Congress, your active oversight can fix this problem. But you need to do more than regulate for the future. A generation of students are effectively underwater for life because of lax regulation. Seems to me that you need to fix this problem.

Details emerge on KBR’s request for taxpayer bailuout

In today’s Oregonian, Julie Sullivan (aka “the one-woman wrecking crew”) reports here on emerging details of KBR’s request for a taxpayer bailout.  Short version is that as revealed by depositions taken in our Oregon Army National Guard toxic injury case, Bixby v. KBR, KBR won a special secret contract clause that requires the government to pay in the event of injuries or deaths.

Special thanks to Rep. Earl Blumenauer who pushed the Department of Defense on this issue.  Along with Sen. Wyden, Sen. Merkley and Rep. Schrader, Rep. Blumenauer has made it a point to take a hard look at these issues and provide critical assistance to our vets.  Members of the Oregon Congressional delegation have been fabulous.  Their hard work provides real comfort to the vets who stepped up to serve.

One question that occurs to me is whether that clause is enforceable if the vets in the Bixby case succeed in proving fraud by KBR. I don’t profess any particular expertise in this area. And even if I did, the details remain secret, so it’s likely impossible to know how that plays out.

As a taxpayer and as counsel for the sick vets, I’m steamed.  KBR already got paid billions for their work, and now they want a get-out-of-jail-free card so that they don’t have to pay for any consequences of their actions? Great plan.

Food Safety Legislation S 510–Safety over fear

Good to see that the Senate is set to pass S. 510, a bill that would help regulate food producers. By way of background, we’ve had a lot of outbreaks of food-related disease due to unsafe and unregulated food producers. The problem is exacerbated by the rise of large scale farming. When unregulated and unsafe producers are large scale, the havoc caused by tainted food spreads far and wide.

That’s how we get the salmonella and E. coli outbreaks. A bad peanut processor in Georgia can cause havoc here in Oregon. Food-borne sickness causes 5,000 deaths a year and 300,000 hospitalizations.  That’s a serious safety issue.

To hear opponents talk about it, the passage of amendments to our food safety laws represents a profound danger of government meddling and over-regulation.  On my Facebook page, a family member posted a link to an article arguing that the FDA would soon be outlawing gardeners from saving seeds.  There is nothing in the bill that allows anyone to rationally make that argument. Apart from that, the FDA does not have authority or power to regulate home gardens and purely local food producers who sell in-state.

I understand fears of overreaching by the federal government. I’m hardly an apologist for the government.  And I’m also a longtime organic gardener, farmers market shopper and supporter of local agriculture.  Still, we need to be able to trust our food supply.  Seems to me that we shouldn’t have to worry that the peanut butter we buy at the store might be tainted.  Kids, sick people, and the elderly are at high risk for dangerous food-borne illnesses.  Seems like we should choose safety over fear.