To get a sense of the methods used to “tout their wares” go to the Yellow Pages of any major city telephone directory and you become inundated with the most undesirable advertising you have ever experienced. Unfortunately, including the photographs of many the homelier of my colleagues that for some unknown reason think that the public is going to select a lawyer because of his appearance. Early in the 20th century, Clarence Darrow, recognized as the best trial lawyer in the United States, and one of the premier trial lawyers of all time, was once accused of looking like a “sack full of doorknobs”. When someone mentioned his slovenly dress, his response was, “I guess these dandy’s don’t sleep in their cloths”. Maybe some lawyers, at least those that have heard of Clarence Darrow, should learn from this, improve their skills, and pay less attention to their “brand” of cloths. Below are the pictures of Mr. Darrow, and another “(in)famous” lawyer Charles Colson. If you saw ads featuring these two lawyers, you might be inclined, based solely on appearance, to hire Mr. Colson, a lawyer that was involved in the Watergate scandal of President Nixon, and went to prison for obstruction of justice-- “can’t tell a book by its cover.” (In fairness to Mr. Colson, after coming out of prison worked very hard to assist many others by his efforts and his generosity-- he did a great deal of good for a great many people.)
Clarence Darrow
Charles Colson
From the time of the founding of this country and for the next 200 years, or so, the acceptable method of developing a law practice, and the securing of clients was the time consuming process of increasing yours skills as a lawyer. It was not by generating instant name recognition through advertising and self-promotion. The prohibition against advertising served multiple purposes, but the most important were preserving the dignity of, and respect for, lawyers, and the secondary effect of lawyers having to work very hard to increase their knowledge and skills in order to compete with established lawyers in their community.
The way new lawyers expanded their practice were referrals from existing clients, referrals from other lawyers that were aware of the fledgling talents and referrals from judges that may have been impressed by effective appearances in their courtrooms. These methods for increasing the practice have now given way to the repugnant ads you see in telephone books, newspapers, radio and television, buses and park benches. Frequently these ads are misleading if not outright falsehoods. It is quite common to see ads that a particular lawyer handles, or specializes in, for example, personal injury litigation, when the lawyer placing the ad has never personally tried a jury trial in his entire career—personal injury or otherwise. While these ads may not amount to actionable fraudulent misrepresentations, they are certainly misleading. I suspect that the average person that resorts to the telephone book to find a lawyer to handle a personal injury claim would assume the advertiser would, and could, properly try the case to a jury should it prove necessary. I would further assume that the injured person thinks the lawyer is an experienced trial lawyer.
Many of these advertising lawyers are creating a new form of law practice—that of a case broker. Some of these lawyers advertise to get the client in the door, attempt to obtain a quick settlement, and take a significant fee (usually about a third of the recovery). If they are unable to settle the case, they then refer the case to a (hopefully) competent trial lawyer to prosecute the case in return for a referral fee from the lawyer that completes the job--again, about a third of the fee charged by the final lawyer.
Perhaps the various bar associations should restrict the ability of the advertising lawyers to receive referral fees from other attorneys. However, caution is necessary to make sure the referring lawyer sends the case to a competent trial lawyer, and not to another “hack” that will pay the referral fee irrespective of the prohibition.
Bar Associations are not state agencies, they are private organizations operated by the lawyer-members. They have no police force to insure adherence to the rules, and are somewhat dependent on voluntary compliance. Perhaps, again, the bar associations could let it be known that notwithstanding the Supreme Court’s ruling that lawyers may advertise, the bar association discourages such ads, and that they will take action against the offending lawyer if they find the ads are misleading to the public.
I recommend we leave the advertising to the cereal companies, and lawyers revert to obtaining business by their knowledge and skill in the practice of law. They may not make as much money in the short run, but they will have more contented clients, and will be better off financially in the end.
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