Legal Ethics and Marketing

Little did I realize there are all sorts of blogs about lawyer advertising. Here's a blog sponsored by the State Bar of Nevada that wants your opinion about it. Although some of the topics on the blog seem to have a bit of an anti-advertising bias, e.g. should it be more strictly regulated, have you been offended by any ads, the most interesting thing, if I'm looking at this the right way, is that no one has replied -- not lawyers, not marketers, and especially not the public.

This is consistent with research done on lawyer advertising 15 years ago. While lawyers often have a dog in the fight, the public just doesn't care. No doubt there are people who have found their lawyer through advertising and believe they were poorly served, just as those who found their lawyer through other ways. But so far, nothing seems to suggest that there is any difference. We have to wonder if the Nevada blog ultimately generates negative comments whether that will serve as a basis for greater restrictions.

The reason that no one has replied to the State Bar of Nevada's blog, is that a username and password is required even though it says that it is a public blog. I tried to post a reply comment and it said that I was not authorized to do so.

My post would have stated:

No. Regulation may work well for the public where a virtual monopoly is being regulated, such as an electric utility. In industries where there are many providers, such as law, regulations reduce competition among those who are regulated. Advertising benefits consumers because it promotes competition in both price and services. Strict regulations will stifle advertising and the resulting competition. Why should lawyers be allowed to protect themselves from competition?

Advertising also benefits consumers because it promotes legal competence. Because advertising requires a substantial investment, lawyers who spend money on advertising almost always limit their practice to one particular field, thus providing a higher level of competence to consumers. While a consumer may find TV commercials for personal injury or bankruptcy, one would be hard-pressed to find a TV commercial advertising both fields for a general practice law firm. Since mostly lower income people call lawyers from advertising, they will most likely reach a lawyer with substantial experience in the field, while upper income people will likely call a lawyer they know or maybe the lawyer that handled the closing on their home. Hopefully, upper-income people who call a real estate lawyer will be referred to an appropriate lawyer when they need a lawyer in another field.

While some regulations are necessary to protect the public, the FTC already addresses these issues as it does with all other advertisers. Lawyers are not exempt from FTC regulations. The state bars should enforce the FTC regulations against lawyers who violate them. The state bars are not even enforcing their own regulations that are already enacted. It is rare to find a TV commercial that does not violate some ethics rule. The state bars know that these rules are unlikely to be upheld at the Supreme Court and are reluctant to enforce them. Why do they need to enact more regulations?

Regulations are like branding. Similar to brand extension which weakens a brand, rather than creating more regulations, the state bars should reduce the number of regulations and concentrate on enforcing the most important regulations. Creating a myriad of regulations without enforcement weakens the regulations and creates a situation where lawyers don't even bother to attempt compliance.

There are some regulations which no longer make sense and should be removed, such as requiring the lawyer's street address to be published. While there may have been several valid reasons in the past for this regulation, this no longer provides a benefit to the public. Even though a regulation may not be upheld, bar associations have continued to enact regulations, often poorly written, such as a regulation prohibiting a lawyer from using someone else in a TV commercial to portray the lawyer. I would assume that this regulation seeks to prohibit a lawyer from using a well-known actor to unduly influence the consumer, but as written also applies to unknown actors. These regulations restrain trade by prohibiting a lawyer from buying time on national TV. We may yet see this come to the Supreme Court as there is now lawyer advertising on national television using unknown actors and without a local office address.

Advertising regulations do not protect the public from lawyers, only from claims made in the advertising. Thus advertising regulations do little to protect the image of lawyers in public opinion. Advertising itself does not denigrate the image of lawyers. The public will form a bad impression of a particular group or profession when they feel taken advantage of and are powerless. Even unrestricted advertising will not do this. It is the actions of some lawyers, the lack of enforcement and the lack publicity about enforcement that disparage the profession. The public needs to know what the state bar is doing to get rid of bad lawyers, not lawyers who advertise badly.

Less grievous from a regulatory standpoint, but more disparaging to the image of the profession are particular acts by some individual lawyers who are usually retained without advertising. When lawyers and doctors sign up clients and patients that are "referred" to them by runners, the image of the profession is tainted. When lawyers overcharge their clients and even bill for services never rendered, the public forms a disparaging opinion of the entire profession. On quite a few occasions, I have seen lawyers bill for services never rendered, for expenses never incurred and even intentionally double billing expenses. I have had to recommend to the clients, who came to me, that they dispute these bills with the Bar Association. Some of these people just never bothered to go to the Bar Association, because they did not have the time. Some of the clients obtained satisfaction after dealing with the Bar Association, but they were all left with a very bad attitude about lawyers.

Finally, I have to admit a bias. I prefer strict advertising regulations. Advertising regulations help me, because most lawyers do not have the knowledge or creativity to design advertising that sells without violating ethics. I am very good at that and consequently, if everybody adheres to the regulations, my advertising will stand out. The problem is that lawyer advertising is not adhering to the existing regulations, let alone new ones. Lawyer advertising regulations should be reduced and enforced.

Odd, I'm in Nevada and none of our attorneys even knew the Bar had a blog.