The History of Lawyer Advertising
The public is getting sick and tired of lawyer advertising, it is almost impossible to watch television without a lawyer advertisement every ten minutes. You cannot drive down the road without seeing dozens of billboards, busses, and taxicabs plastered with lawyer advertisements. It may be time for lawyers to get back to basics, return to a time when lawyers got new clients by doing a good job, and earning the trust of their clients whom in turn refer their family and friends to that lawyer. Do lawyers really need to resort to the mass marketing and mass advertising that we are now bombarded with?
THE GOOD OLD DAYS
There was a time when lawyers weren't allowed to advertise. Legal marketing was unheard of, and word-of-mouth was pretty the only option for lawyers to drum up new business besides their name on the door. Way back in the day, there was even the concept of the "family lawyer" who had served the families needs for almost any type of legal matter. Today lawyers have specialized and limited their practice to specific legal matters such as divorce, bankruptcy, or personal injury. The days of a sole practitioner handling multiple areas of law are long gone.
Lawyers everywhere have a man by the name of John Bates (and his partner) to thank for their ability to advertise today. In order to charge lower fees, Bates placed an ad in a local newspaper in 1976. He felt that his firm would need to take on additional clients to be able to charge lower rates, and advertising in a local newspaper seemed like the way to achieve his goal. Seemed innocent enough, however it turns out it wasn't, at least if you were to ask the Arizona State Bar about 30 years ago. Bates had his license to practice law suspended for the "audacious" advertising act.
Eventually, Bates sought review by the Arizona Supreme Court arguing that a complete ban on advertisements violated the Sherman Antitrust Act as well as the First Amendment. Although the court did not agree, it did reduce his suspension (and his partner's, too). Why they reduced the suspension handed by the Arizona State Bar was related to the court's reasoning that the advertising in question was a means to test the constitutionality of lawyer advertising rules in relation to the Constitution.
It did not end in the Arizona's Highest Court. The U.S. Supreme Court Would Review the Case. A case out of Virginia, Goldfarb v. Virginia State Bar, was the catalyst for Supreme Court review. In that case, it was held that lawyers were exempt from the Sherman Antitrust Act because "lawyers engage in trade or commerce." But the more important issue was one of free speech. Following the Supreme courts ruling, many states quickly lifted their bans on lawyer advertising, and lawyer advertising was born. However, state bar associations soon found they had to regulate lawyer advertising to avoid false claims, unfair competition, and other issues that were starting to rise from the lawyer advertising movement.
Evoluton of Lawyer Advertising
At the time, display ads were the popular trend in advertising; public bus benches, billboards, and the Yellow Pages, places were where similar professional services advertised, so lawyer advertising followed suit. This was the birth of the giant full color, multi page lawyer ads you see today when flipping through the phone directories, as well as the billboards, bus and taxi cab advertisements.
Lots of Television Advertisements
As TVs continued to surge in popularity within the American home as a source of information, and radio continued as a news provider, lawyer advertising branched out there as well. With each new piece of technology that another industry finds as a viable marketing venue, lawyer advertising has followed. Today it is almost impossible to watch television without seeing a lawyer advertisement for car accidents, bankruptcy, foreclosure defense and defective products. The lawyer advertisements have become more bold over time with lawyers making deceptive and misleading claims in an effort to solicit new clients.
The Internet has been the most influential technology to hit the legal marketing world, opening up several new methods and reaching millions more clients than before. The internet has turned into the yellow pages of this century, and lawyers advertise with their web sites and blogs. Most attorney web sites and blogs are nothing more than advertisements, however some lawyers have attempted to provide useful information to the public and not just advertisements with their web sites and law blogs. As a result of the internet advertising by lawyers, we have seen the development of internet lawyer directories, internet lawyer advertising, and services that claim to match up clients with lawyers similar to internet dating services. For lawyers the internet is like the yellow pages on steroids.
Lawyer and Doctor Referral Services
Another trend that has developed in recent years are "lawyer and doctor" referral services. These services advertise on television, radio, and billboards, and offer help in finding a doctor or lawyer. One problem with these type of services is that they may be deceptive or misleading. Some medical and legal referral services are actually fronts for medical clinics owned or affiliated with the referral service. Injured callers may be led to believe that they are getting an arms length referral to a doctor, when in fact they are being directed to a clinic owned by the referral service. Often the lawyers that work with referral services pay a fee to belong and have a strong incentive to refer clients to clinics owned by the referral service. Unsuspecting clients have no idea about the relationship between the clinics, the lawyers, and the referral service.
Obviously not all referral services engage in this type of unfair, deceptive and misleading trade practice and actually provide a legitimate service to the public. If the referral service, or the lawyer is spending millions of dollars on television advertisements, it is a good bet that they are not doing it out of the goodness of their hearts, and clients should approach with caution.
American Bar Association on Advertising
The American Bar Association has commented on lawyer advertising and has established several aspirational goals for lawyer advertising. If lawyer advertising avoids false, misleading or deceptive representations, or coercive or misleading solicitation, it advances the goal of bringing needed legal services to more people than are now being served.
However, when advertising though not false, misleading or deceptive degenerates into undignified and unprofessional presentations, the public is not served, the lawyer who advertised does not benefit and the image of the judicial system may be harmed.
Accordingly, lawyer advertising should exemplify the inherent dignity and professionalism of the legal community. Dignified lawyer advertising tends to inspire public confidence in the professional competence and ability of lawyers and portrays the commitment of lawyers to serve clients' legal needs in accordance with the ethics and public service tradition of a learned profession.
Lawyer advertising is a key facet of the marketing and delivery of legal services to the public. The professional conduct rules for lawyers adopted by the states regulate some aspects of lawyer advertising, but they also leave lawyers much latitude to decide how to advertise. The following Aspirational Goals are presented in an effort to suggest how lawyers can achieve the beneficial goals of advertising while minimizing or eliminating altogether its negative implications.
These aspirational goals are not intended to establish mandatory requirements which might form the basis for disciplinary enforcement. Rules of Professional Conduct and Disciplinary Rules of Codes of Professional Responsibility in effect in all jurisdictions establish the standards which all lawyers who advertise must meet. Rather, these aspirational goals are intended to provide suggested objectives which all lawyers who engage in advertising their services should be encouraged to achieve in order that lawyer advertising may be more effective and reflect the professionalism of the legal community.
1. Lawyer advertising should encourage and support the public's confidence in the individual lawyer's competence and integrity as well as the commitment of the legal profession to serve the public's legal needs in the tradition of the law as a learned profession.
2. Since advertising may be the only contact many people have with lawyers, advertising by lawyers should help the public understand its legal rights and the judicial process and should uphold the dignity of the legal profession.
3. While "dignity" and "good taste" are terms open to subjective interpretation, lawyers should consider that advertising which reflects the ideals stated in these Aspirational Goals is likely to be dignified and suitable to the profession.
4. Since advertising must be truthful and accurate, and not false or misleading, lawyers should realize that ambiguous or confusing advertising can be misleading.
5. Particular care should be taken in describing fees and costs in advertisements. If an advertisement states a specific fee for a particular service, it should make clear whether or not all problems of that type can be handled for that specific fee. Similar care should be taken in describing the lawyer's areas of practice.
6. Lawyers should consider that the use of inappropriately dramatic music, unseemly slogans, hawkish spokespersons, premium offers, slapstick routines or outlandish settings in advertising does not instill confidence in the lawyer or the legal profession and undermines the serious purpose of legal services and the judicial system.
7. Advertising developed with a clear identification of its potential audience is more likely to be understandable, respectful and appropriate to that audience, and, therefore, more effective. Lawyers should consider using advertising and marketing professionals to assist in identifying and reaching an appropriate audience.
8. How advertising conveys its message is as important as the message itself. Again, lawyers should consider using professional consultants to help them develop and present a clear message to the audience in an effective and appropriate way.
9. Lawyers should design their advertising to attract legal matters which they are competent to handle.
10. Lawyers should be concerned with making legal services more affordable to the public. Lawyer advertising may be designed to build up client bases so that efficiencies of scale may be achieved that will translate into more affordable legal services.
Going full circle Back to Basics
Some lawyers are fed up with all the lawyer advertising (and probably most people trying to watch television too). Those lawyers are going back to basics, back to a time when lawyers obtained new clients by word of mouth from other satisfied clients for which the lawyer had put forth his best efforts and done a good job for his client. It should not be necessary for lawyers to advertise if they are doing good work, accomplishing their clients objectives, and conducting themselves in an honest, ethical and competent law practice.
For more information or for a free consultation, contact Scott and Fenderson, PA Injury and Family Law Attorneys, by calling 727-321-0099 or view our web site www.scottandfenderson.com