Advertisements for and by attorneys are everywhere, featured on
television, the Yellow Pages, direct-mail solicitation letters,
billboards, Web sites, and the backs of bus-stop benches. They flood
the marketplace, informing consumers of their choices of legal counsel.
"Protect Your Rights," "We'll Fight for You," and "Don't Settle for
Less" have become familiar refrains. By the same token, doctors now
freely advertise, on billboards, in newspapers, and in the ever present
Yellow Pages.
For example, in the latest Yellow Pages for Tampa,
the cover and back spine contain advertisements by attorneys; display
advertisements cover 51 full page advertisements for a number of law
firms, for the most part, specializing in either personal injury cases
or criminal defense. There are separate listing for legal specialists,
such as those engaged in aviation law, bankruptcy, family law and many
more. Interestly, a number of attorneys engaged in medical malpractice
cases are both attorneys and medical doctors. The advertisements, for
the most part, list specialties of practice and an admonition that an
injured or aggrieved person should call forthwith!
Nor are the
advertisements limited to attorneys. Under the "physicians" section of
the telephone book are extensive advertisements by medical
professionals and hospitals, promising pain-free treatment, immediate
appointments, affordable cosmetic surgery (with pictures of bikini-clad
models, none of whom have the slightest need for cosmetic renewal.
Let
me begin by asserting that I, generally, am uneasy of advertisements,
other than, perhaps, display announcements of the opening or closing of
a law or medical practice. I come to this opinion as a result of the
practice of law in the days before advertising was even considered!
When
I was growing up in Massachusetts, just a mile or so south of the New
Hampshire state line, physicians and attorneys did not advertise in the
classified telephone book or elsewhere. That is just the way it was. In
those days, however, practitioners of chiropractic were not licensed in
Massachusetts but were authorized to practice in New Hampshire.
Our
classified directory in Haverhill, Massachusetts, was replete with
display advertisements for chiropractic offices, just over the state
line, that promised cures from everything from a backache to
virus-caused illness. Broken bones? An adjustment would cure it.
Cancer? Not to worry. Nothing was beyond the expertise of these
chiropractic physicians. (I add here that the practice of chiropractic
is now licensed and regulated by the Commonwealth of Massachusetts.)
When
I practiced law in New York, in the 1960's, advertisements by or on
behalf of attorneys were unheard of. Then, in the mid to late 1970's,
the concept of commercial free speech was enunciated by the United
States Supreme Court.
Two attorneys in Arizona, John Bates and
Van O'Steen, opened a legal clinic, offering a number of legal services
at modest fees to persons of moderate income who did not qualify for
governmental legal aid. In order to achieve this end, they would accept
only routine matters, such as uncontested divorces, uncontested
adoptions, simple personal bankruptcies, and changes of name, for which
costs could be kept down by extensive use of paralegals, automatic
typewriting equipment, and standardized forms and office procedures.
More complicated cases, such as contested divorces, would not be
accepted. Because appellants set their prices so as to have a
relatively low return on each case they handled, they depended on
substantial volume. They began a series of advertisements that
described their practice and advertised their fees.
At that time
the Arizona Bar had a disciplinary rule similar to that in every state,
"A lawyer shall not publicize himself, or his partner, or associate, or
any other lawyer affiliated with him or his firm, as a lawyer through
newspaper or magazine advertisements, radio or television
announcements, display advertisements in the city or telephone
directories or other means of commercial publicity, nor shall he
authorize or permit others to do so in his behalf."
The U.S.
Supreme Court in Bates v State Bar of Arizona (1977) expanded on the
concept of commercial free speech that had previously allowed some
advertising by pharmacists to permit advertisements by attorneys,
provided that they were not deceptive nor misleading. Since then a
number of cases have expanded the rule that attorneys may advertise,
with some occasional backward steps that are beyond the scope of this
article.
It is too late to discuss whether advertising by
professionals should be allowed. That cat has been let out of the bag
many years ago. The issue now is how such advertisements should be
regulated and controlled.
Medical doctors are regulated
by Boards of Medical Examiners, Departments of Health or other
licensing agencies in each state. The rules on advertisements are, for
the most part, similar to those of Florida's Department of Health,
Board of Medicine, whereby advertising by physicians is permitted, "so
long as such information is in no way false, deceptive, or misleading."
Moreover, the physician's advertisement, must not convey "the
impression that the physician disseminating the advertising or referred
to therein possesses qualifications, skills, or other attributes, which
are superior to other physicians, other than a simple listing of earned
professional post-doctoral or other professional achievements
recognized by the Board"
Lawyers are regulated by a variety of
agencies throughout the country, depending on the peculiar situation in
each state. For example, in New York, disciplinary rules and regulation
is provided by one of the four Supreme Court Appellate Divisions in
that state. There is no mandatory Bar Association; there are voluntary
associations which often bring disciplinary ond other ethical breaches
to the attention of the Court. The four Appellate Divisions have,
however, jointly promulgated Rules of Professional Responsibility which
relate, inter alia, to lawyers' advertising. Attorneys cannot advertise
material that is "false, misleading or deceptive" or that guarantees,
directly or by implication, a particular result."
In Florida, as
in many states, there is an "integrated bar" which simply means that
all attorneys are obliged to belong to a formal Bar association which,
by statute or Court rules is the agency that establishes regulation of
attorney conduct. In Florida, the Florida Bar has, with the concurrence
of the state Supreme Court, regulated advertising. Generally,
misleading, sensational terms, deceptive words, promises of a specific
result are all considered unprofessional.
Some lawyer advertising is, frankly, offensive.
An
attorney specializing in personal injury cases should be allowed to
advertise his or her availability to represent victims of automobile
accidents; similarly, an attorney who specializes in workman's
compensation law or estate and probate cases or bankruptcy law, should
be allowed to tell the public of his or her experience and
availability. The last time I checked, one legal encyclopedia listed
over 600 separate fields of law and no attorney can be expert or even
proficient in all of them. Advertisement are a logical way to advise
potential clients of the practice.
The same concept applies to
physicians. There are hundreds of specialties and sub-specialties in
medicine. A physician should be permitted to advertise his or her area
of practice and competence.
However, where I find fault with my
own profession is the advertisement which infers that there is a causal
connection, always, between an injury and a person's or institution's
negligence. To advertise to parents whose child has had a birth defect
that there must have been negligence on the part of doctor or hospital
is, in my opinion, cruel and deceptive. Sometimes, bad things simply
happen. Sometimes bad results can occur with the best medical care. An
automobile crash is not always a matter of the sole fault on one
party's part. The injury that results during the use of a particular
product may or may not be a case of product liability. The injured
person may just be dumber than dirt and the cause of his own injury.
In
the Tampa telephone book are advertisements aimed at frightening
people. One advertisement for a bankruptcy firm asks if the potential
client, "is afraid to answer the telephone. . .afraid that you may be
sued, go to jail, lose your home?" For a remarkably reasonable fee,
those fears can be assuaged.
Physicians are not free from
criticism. There is a plastic surgery center advertised in the Tampa
telephone directory as, "the Fountain of Youth Institute". Another
doctor has in his waiting room a billboard announcing, "Miracle of the
Week". I am intrigued by the surgeon who advertises, "Gentle Touch
Vasectomy." I would hope so.
I wish we could go back to the "good old days" but, alas, this will not happen.
However we should take all professional advertisements with several grains of salt
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