Lawyer advertising still stirs questions of appropriateness

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Legal Plug | The Offical Blog
Tuesday, March 8, 2011
Lawyer advertising still stirs questions of appropriateness
Monday, March 07, 2011
By Alan M. Malott

"I am not an ambulance chaser. I am usually there before the ambulance." — Melvin Belli (1907-1996)

Q. What's up with the stream of lawyer commercials on TV promising big paydays for everyone who wants to make a claim? They make it difficult to show respect for the profession.

A. Your question touches on more than just advertising by lawyers. It implicates the bigger issue of commercialization in every level of society from doctors to lawyers to Indian chiefs. In the interest of full disclosure, I developed and utilized advertising in my law practice for many years before coming to the court. I still have mixed feelings on this subject and it remains a sore spot among practitioners around the country, as well as some of you.

Abraham Lincoln used advertising to promote his law practice in Springfield, Ill., before becoming president. Early in the 20th century, though, most states enacted ethical rules which prohibited lawyer ads upon the theory that the "learned professions" such as law and medicine were far too dignified to allow such commercial behavior. But the 20th century also saw establishment of consumer protection laws, civil rights legislation availability of divorce, recognition of personal injury claims, and complicated interstate and international business activities which were vastly different than the legal issues of the land-based economy of preceding generations. Demand for legal services increased, and a whole lot of new law schools were established to meet that demand.

The ethical prohibitions on lawyer advertising continued in the face of a changing culture. If you needed a lawyer, you sought out someone from your church, club or neighborhood or asked a friend, neighbor or family member. Until 1977.

In the mid-1970s, a small law firm in Arizona named Bates and O'Steen conducted a practice devoted to debt relief, uncomplicated divorces and similar routine matters. They served those with limited resources. They advertised their fees in the newspaper. Those ads look very tame by today's standards, but they touched off a firestorm of change in the legal profession. The State Bar of Arizona began a disciplinary proceeding that ended up in the U.S. Supreme Court. In 1977, the court ruled that outright bans on attorney advertising violated the constitutional right to free speech. Bates and O'Steen went on to become a very large, multi-office legal clinic system. Lawyer advertising became a billion-dollar business.

Subsequent court decisions have addressed the delicate balance between free speech rights and protecting the public from dishonest practitioners, but the courts have made it clear that concerns for professional dignity cannot form the basis for regulating attorney advertising. Some practitioners have taken the courts at their word, to say the least.

In New Mexico, lawyer advertising may not be false or misleading. An attorney may tout his or her accomplishments in past cases, but must not create unjustified expectations in doing so. That is why we see those fine-print disclaimers below the touting of a prior big verdict or settlement. Lawyers generally may not compensate third parties for client referrals and every attorney advertisement must include the name and office address of the responsible attorney.

Although most restrictions on mass-media advertising have been lifted, there are still prohibitions on personal contact and solicitation where the potential for misleading a person in difficult circumstances is still significant. In short, lawyer advertising is now as mainstream as car sales and supersized burgers. But so are ads for plastic surgeons, Lasik procedures, prescription drugs and cancer treatment centers. Is this a good thing? I have mixed feelings because my profession should be at least somewhat dignified in communicating with the public. As always, you can "Judge for Yourself" ... and utilize your TV's remote control.

Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, contact Judge Malott at P.O. Box 8305, Albuquerque, NM 87198 or e-mail to: Opinions expressed here are solely those of Judge Alan M. Malott individually and not those of the court.

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