Public Citizen, Inc. et al v. Louisiana Attorney Disciplinary Board et al

Filing 70

MOTION for Summary Judgment by Scott G. Wolfe, Jr and Wolfe Law Group, LLC. Motion Hearing set for 7/29/2009 10:00 AM before Judge Martin L.C. Feldman. (Attachments: # 1 Memorandum in Support, # 2 Notice of Hearing, # 3 Request for Oral Argument, # 4 Verification of Scott Wolfe Jr, # 5 Statement of Contested/Uncontested Facts, # 6 Exhibit 1, # 7 Exhibit 2, # 8 Exhibit 3 Part 1, # 9 Exhibit 3 Part 2, # 10 Exhibit 3 Part 3, # 11 Exhibit 4, # 12 Exhibit 5, # 13 Exhibit 6, # 14 Exhibit 7, # 15 Exhibit 8, # 16 Exhibit 9, # 17 Exhibit 10, # 18 Exhibit 11, # 19 Exhibit 12, # 20 Exhibit 13)(Reference: 08-4994)(Wolfe, Scott) Modified on 7/14/2009 (caa, ). **Request For Oral Argument Docketed Separately.**

May 31, 1993, sec.25coll. 21. See ary Ann Glendon_ A Nation Under Law'yem, 1994, at M 22. In 1991_a survey of 105 of the largest law firms reported that 93.4 percent had dismissed l_.w),ers in the preceding 18 months and 86 percent expected to do so in the following 18 months. In 1993, almost half of the top 250 f'mns had =downsized." 22. Image-building television campaigns are not limited to arge or l corporate-oriented law _'ms. For example, the Texas personal injury firm of Waltznan & Assodates has rim a series of commercials promothag public service ca.uses on themes such as homelessness, drug abuse and rights of the handicapped, under the slogan "Let's Get Involved." 23. Supra note 5.16. 24. Id. at 48. 25. Id. at 56. 26. Id. at 80. 27.Jlm Kossi and Mollie Weighner, An .Em.pirical.F-.,:arninatiftn oo & Iowa .Bar's Approar.hto ]_gulafing Lawyer Ad_ertin'ng 77 Iowa L Rev. 179,248 (1991). 28. The Commission is conducting a mailed survey" of law'yers to assess the frequency and effectiveness of a wide variety of client development techniques. The results of this survey are expected in Spring, 1995. These preli..nar. indications are not based on a stat' t' al an almi .. y is ic y sis, but an informal examination of the survey returns.

Chapter
T_E ROLE OF

LAWYERADVERTISING

WITHIN

THE GOALS

OF THE ./_A

The Mission of the American Bar Assodatlon is "to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law."This statement was adopted by the Association in 199 I, along with 11 goals designed to carry out the mission) The second of the 11 goals states, "To promote meaningf'¢l acces_ to ]eg'_ representation and the American system ofjustice for alJ persons regardless of their economic or social condition. The tenth goal is, "To preserve and enhance the ideals of the leg'al profession as a common callingand its dedic_on to public service. "3Lawyer advertising, soficiration and marketing may lie at the intersection of conflict between theswo goals. td On the one hand, ff the communication of legal services promotes improved access to legal representation, especially among those who by virtue of economic or social condition have been denied or whose access has been limited, then the activity is consistent with the Association's goals and deserves support. On the other hand, ff the communication of legal services interferes with the preservation and enhancement of the ideals of the profession as a common calJing dedicated to public service, to that extent the activity is inconsistent with the Association's goals and should be opposed. Consequently, it is extremelyimportant to consider the impact of advertising, solicitation and marketing on public image and access to legal services. A. THEPuauc IMAGE F LAWYERS O 3

.

/"

The legal community has a strong perception that the public's image of the profession has declined in recent years. !Jke measurementsinvolving the usage of lawyer advertising, research addressing public perceptions of the legal profession, law fume and lawyers is difficult to compare because there is no standardization from one survey to the next ha the questions asked. One questionnaire m_.y, for

LASC 01530

LAV_/EK .DVEKTL_INCTTH_ CKOSSP_OADS A A

THE KOI_ OF I_WYEE ADV_E_'IIs_G WFFKINTH_ G° AL'_°F THE A BA

example, ask the level of confidence the individual has in law firms, wbJIeanother may ask the extent to which people want theiz chfldren to become members of certain occupations. The variations are neasly as numerous as the surveys, Gallup conducted apolI asking a random selection of people to rate various professions and occupations according to this standard: "How would you rate honesty and ethical standards of people in these differeat fields, very high, high, average, low or very low?" The survey lists25 professions. The poll was conducted in 1976, 1977, 1981, 1983, 1985, 1988, 1991, 1992 a.ad 1993.4The results for lawyers are as follows: TABLEIII(A) Percentage of Public l_:ing Honesty and Ethical Standards of Lawyers, by Year I 1976 1977 1981 1983 1985 t988 1990 1991 1992 1993 vegy hi r h 6 5 4 5 6 3 4 4 3 3 high 19 21 21 19 21 15 18 18 15 13 average 48 44 41 43 40 45 43 43 43 41 low 18 18 19 18 21 23 22 20 25 28
I

TABLE ILI(B) Summated Values by Year

1976 1977 1981 1963 1985 1988 1990 1991 1992

2.97 2.97 2.94 2.93 2.93 2.77 2.85 2.86 2.7 2.64

These values i]Iustrate an overall decline for the past ten years, a!though not a steady one. The greatest change took place most recently, between 1991 and 1993, when the public opinion dropped almost twice as much as it did between 1976 and 1991. Other research concurs with Gdlup. The Yellow Pages Publishers Associal:ion commissioned Wiese Kesearch Assodates, Inc. to conduct a public perception study in April 1994. The survey of 400 people found that attitudes toward lawyers were fairly neutral, averaging 5.2 on a 10-point scale. The ratings were, how- . ever, far below those of physicians, denfis0, respectiAe,lywLawryeed ra.6, ds.l5ghnld 7. ts and CP v s . ho at rs 7ze 7 i a t y

no very low opinion 8 1 8 8 9 9 -10 9 10 11 13 4 7 6 3 4 4 -

1993

GRAPH 6 5_nlmated Ju_ l The ubllc'Ia agof Lm*tyers Ve e P me

5.0

5 3 2

4.S [ 41o ! 3s 31o zs z3 l is
1;0 1976 19",r7 I i r i i _ 1981 i I 1983 I 1gI_5 I I I 1988 I I r 19_ lggl 1992 t9I _ _ 9

The differences from year to year can be better visualized by a summazed value for each year, excluding those with no opinion. AssignJug values of "5" for each response of =very high" and "1" for each response of"very low," a single number cambe calculated for each year. The higher the number, the more positive the attitude. The sums are as
fol]ow_:

:

_-

_-

65 LASC 01531

LiW'I_KDVEKTIS!NO TH]CROSSROADS A AT 5

THE ROLE OF LAWYF2ADV'£KXISIN THIN . G WI _

GOAJ_ FTH_ABA O

lower han r_uranagentwho raze5.6The respondenwerethen ti ce s, d, ts asked how their attitudes had changed over the past five years. Thirtyfour percent reported their attitudes toward lawyers had declined, more than half of these indicating theyhad declined a lot Only eight percent reported their attitudes toward lawyers had improved over the past five

i i cor_tn,m_ GENERAL '[TFUTOWARD AT DES ATTO_ vlm.mso'r'mmzaormmoNs _ Tlmse bleTo Pate) A _.ttome_

G::ap7 h

years.The declineofattitudes owardlawyerswasfar beyond thoseof t
the other professinm measuredJ It is difficult, at best, to draw conclusions about the role of lawyer advertising as an influencing factor in the public's opinion about lawyers and the legal profession. The Gallup Polls on occupations demonstzata a decline in public opinion since the £ates decision. That decline was very subtle during the first decade of lawyer advertising, however. It then seemed jagged and, in the past two years, dramatic. While lawyer advertising has increased over the same time period, the public opinion polls do not provide data from which a correlation can be established. In fact, those who are most likely to h_ve received information about lawyers through advertising have · relatively high impression of the leg'a] profession. For example, the 1993 ABA-sponsored Peter Hart survey reportedly found that those who had the most favorable opinions oflawyerhad the ollowing aracterisBlackor Hispanic. s f ch tics: women, annualamily income Of less than $20,000, lower-class or f lower-middle class, between 18 and 29 years old and using television as a primary sottrce of informatinn about lzwyers. Alternatively, this study reportedly found that those most critical of lawyers had the following characteristics: white-collar workers, upper-middle class, college graduates, annual family income over $50,000, men, between 45 and59 years old who received most of their information about lawyers from newspapers._ Some who presented material to the Commission during the hearLugprocess expressed the point of view that lawyer advertising was a critical contributing cause in the decline of the profession's image in the public's eyes. Others indicated advertising was _.scapegoat used by the bar to shift blame away from real problems and the shortcomings of lawyers andthe legal system. Most who appeared before the Commission characterized lawyer advertising as a factor of minor influence, competing wlth an enormous range of fictinnal influences, actual developments and personal contacts that contribute far more to shaping public perceptions. A variety of fictionalized media unquestionably contributes to the public's image. Television shows such as .Law and Order,.PerryMason, L.& Law and even Night Court and daytime dramas have left lasting

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wt=_ uz.r.,_=_5_-m. _r , _._=,r_,=a,i_r_=_o=S_r'_J 67 LASC 01532

,LAWrERADVERTISING T TI-IE OSSROADS A CR

TI_ ROLE OF LAWYER ADVERTISINGWITHI_ THE GOALS 0] THE A BA _

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impressions on millions of viewers, regardless of the reality of the representations. Movies, ranging from television productions to Academy Award-winning films, have focused on lawyers and the justice system for decades, To a lesser but not unsubstantial extent, novels by anthers such asJohn Grisham and Scott Turow who center their stories around the legal system also exert an influence. The public dearly has an appetite for the drama that unfolds within the insdmfionf the law. os Many suggest that these fictional influences overshadow any influence that may result from lawyer advertising. 7 A 1993 National I_wJoturna! poll illustrates the impact of fiction on public opinions of lawyers. People were asked who the lawyer was

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m mbi ,noiend i eny l na lr wTh . O x re e n h s as h ed f f fam uy they derd frtadmorrpersoawlyeas. yere nef tthospowseo weletctat oa a amoils a person, F. Lee Bailey was cited most fa:equenfly, followed by Perry Mason. Ranked slxt_ between the Atiorney General of the United States and the Fast Lady was Madock. s In addition to fictionalized media, people are influenced by actual developments involving lawyers, judges and others within the legal system.When people in public opinion surveys are asked what lawyers cheydadmioed theimnet.aOverimalg"cothe recutrhing of emeonenor lve oroed t an o ab r ut the r osg tive h a t e, uld not rink th any s i vo rep h t nesty, care and value. Questions of dishonesty and greed h_ve shaped opinions about lawyers for generations, but most sharply since the Watergate scandal between 1972 and 1974.9 Respondents in the 1993 ABA-sponsored Hart survey reportedJy indicated the most negative impresslon_ about lawyers Were that they are too expensive, greedy or money-hungry and not honest crooks?° Respondents to a 1993 public opinion survey sponsored by the National Law Journal replied to an open-ended question asking what lawyers can do to improve their image. The most frequent responses, with 26 percent each, advised lawyers to be more honest or more ethical anas to charge eessettr r eseevscerY edy.e TWieherd emostchrehad ntimiggesinon wd provid l b oe b l rs l g e Th he ts i r sear f que s sular fti dings.'9 Those who indicated their opinions of lawyers had declined in the past five years were asked why. In an open-ended question, nearly a fifth of those responding said either that lawyers are just in it for the money or that they are too expensive. The next most frequent response was that they don't trust lawyers or that lawyers are dishonest '3 Fifteen years ago headlines included stories of a Michigan prosecutor who embezzled more than $1O0,00Ofrom an informants' fund, a personal injury lawyer who withheld $1.5 million resulting from 85 dvfl cases, the disbarment of a former bar leader for conflict-of-interest

w,=_ ,=.,,= _=_-_.._ _=. x _,* -r_*a_,vr,.,_*_ s_r-._* _ LASC 01533

LAborERADV_TI_G ·,

AT _

OKO&SRO_ TKE Rol_ Or LAVmrER_LDVERTISI_G THIN _ WI GOALS OF _ ABA

violations and perjury in Senate con£_-rnadon haa.rings by apresidentiaI

wide public support. -Within that representatiorq

they are trained to

cabinetnominee,t_Today, accountsofjudimal and legalcorruption are
reported in metropolitan judicial _xes Is, complicity and drugs permitted by witnesses to gang activities newspapers virtually daffy. Stories include in embezzlement and frand} 6 favors of sex the U.S. Attnmey's office for incarcerated 17and perjury in Senate hearings, m

make day appear as night to the casually observing members of the
public. This role of some lawyers will no doubt always serve to cap'the level of respect the leg_ profession may enjoy. Like flcdonal depictions of lawyers, these perceptions may be one of the forces shaping public opinion.

Occasionaffy,lawyer advertising is mentioned by journalists as

being among the things wrong with the legal profession. Less frequently, advertising and solicitation are the primary subject matter of such piece% ore oftenthannotas satirl=Comparativdy, owever, m e, h both heactivitoeandcoveraaboutawyer dvertising,icitation t ifs ge l a sol and law firm marketing amount to little more than a footnote when analyzed extto thesensatlonalkzederage fcorruption thelegal n cov o in system,othinprint nd intheelectronicdia, b a me The cost flegal ervices d corollary blic erceptioofgreed o s an pu p n oflawyers are no doubt matters of increased significance. Dur_g the time of the Commission's hearings, the media reported that the costs of legal fees for the representation of a member of the United States Home of Kepresentatives charged with criminal conduct would be over $i.1 milllonJ mThe fees of criminal defense counsel in a sensational celebrity

B. A3q-ITUDETOWARD AWYER DVERTISING S L A A highpercentagoflawyers ttribute edeclininimage of the e a th g professionlawyeradvertising. 992 faxpoll freaders fCa.li.for. to A1 o o nta Lawyer magazine responded to the question "How does attorney advertisicontribute thepublic'perceptioof lawyurs?Sixperng to s n " cent epliefavorably; ghtercent ndicated tata.U nd 86 percent r d ei p i no a said egativelyAlthoughthepoll as one ofself-selectiontheren m, w and fore not a scientific sample, others reported very similar results. A 1992 survey of Pennsylvania lawyers asked Wv'hat effect do you think lawyer advertising has had on the image of the legal profession?" Two percent replied positively; 76 percent negatively; six percent responded no effect and 15 percent were not sure. _ The 1993 ABAJournal-sponsored

murder casewere reported to be $650 per hour for a single lawyer=' . And, the Presidentof the United States establisheda legaldefensefund to defray the cost of his own representation, because, reportedly, he
could not otherwise afford iL= Research consistently shows that about two-thlrds of adults in America have used the services of a lawyer at lea.st once. ="Many of the attitudes about lawyers, the legal profession and the justice system derive from these contacts. Some suggest this is the dominant influence of the public perception of lawyers. The research generally suggests people are satisfied with their own lawyer. However, in our system of advocacy some parties win and others lose and perhaps there are more of the lalier. The elements inherent in an advocacy system unavoidably contribute to an unpleasant experience. Discovery is inherently invasive; litigation is inherently combative; and the judidal process frequently leaves participants with um:ecouped expenses. Additionally, the legs] system is one of blame-shJ_Fting, where a bad outcome may often be the result of the actions or decisions of someone within the system_ frequentiy seen as another lawyer or a judge, Perhaps to a lesser extent, but not insignificantly, the public's opinion of lawyers is shaped by some lawyers' roles in unpopular causes. In the defense of the C0nstitnfior_ and preservation of rights for all people, lawyers represent individuals with causes that do not enjoy

Gallup/'ell found that three percent of ABA members reported advertng has a positive impact on the legal professiorq eight percent reported it has no effectand 87 percent indicated a negative effecL m
Ironically, in each of these surveys, a substantial portion of the respondents reported that they either advertised or had a marketing alan. Forty-five percent of the California lawyers had a marketing program, with an additional 28 percent working on one} 7 Forty-six _ercent of the Pennsylvania lawyers reported advertising, =* and 61 _ercent of the A.BA members in the Gallup Poll were doing at least one _e of advertising, m "While evidence shows members of the legal community have a strongpoint of view on the public's opinion about lawyer advertising, it is not necessarily consistent with public views as assessed in various research.aO "When the public has had the opportunity to complain about lawyer advertising in open-ended, quantified research, they have not done so. In the 1998 National Law Journal survey, of the 553 people who responded to the open-ended question of what lawyers can do to improve their image, four percent responded that the solution was to stop advertising. =l In the 1994 "Wiese research, of those who reported that their perception of lawyers had declined over the past five years, two percent_attributed that decline to advertising, a=

LASC 01534

II
I

,

LAWYER ADVEKTISIN O AT TH_ CROSSROADS
i

TH_ KOLE OF LAW'Y'KK DVEKTISI_G WrI-H_ THE GOALS OF TEE A BA A

Research that probes public attitudes toward lawyer advertising Ls most critical when it is sponsor, ed by *states pursuant to a movement to V " adopt more s_ngent ad ertismg ethical miles or states that sponsored the research preliminary" to a court cha!lenge. For example, a 1983 study sponsored by the Iowa State Bar Association measured public images of lawyers on a "vm'iety of characteristies before and after they were shown television commerdals for legal _services. The study was im , , dertaken at the same time the IowaBar was litigating the constitution, ;fllt), of its rules governing the communication of legal services, The research was conducted by an organization the Iowa State Bar had previously employed to demonstrate the need for merit selection of the judidar-y. _ The advertising studyreported dramatic shifts in public ......... GRAPH S lowaBarSurvay Publ_ at_tudos eforoar_ anerOew_glawyerm_visionads b

attitudes Lu'Lmedlately after seeing a set of television commercials [or legal services. For example, 71 percent of the respondents found lawyers to be trustworthy before the commerdals; this dropped to 14 percent attar they viewed the ads. Seventy-one percent thought of lawyers as professionals before seeing the commerdals, and 21 percent after. Sixty-five percent found lawyers to be honest before and 14 percent after, and 45 percent found them to be dignified before and 14 percent after._ As it is reported, the study is subject to criticism because 1) there is no indication of whether the data is statistically signit_cant; 2) the report does not indicate the extent to which respondents had viewed ads or eommerdais for legal services before the research; and 3) the contents of the commercials viewed by the respondents for the study have not been made available. Other research contradicting that sponsored by the Iowa State Bar Assodation was carried out in 1989 and reported in the Iowa Law RevlewY Among the many aspects measured in this Contemporary Studies Project was electrordc message testing (EM_. This provided pro-test and post-test assessments as people watched television commerrials. Table I'V suggests that the changes are far less dramatic than those reported by the Iowa B as?_ Prior to promulgating a set of rules imposing wide-ranging resWlctions on advertising aud solidtation in Florida, that state's bar employed the same consultant used by the Iowa State B_... Assodafion in its research to assess public attitudes toward direct marl solicitation in Florida. Althoughthedata suggested a variety oflnterpretafions, it was advanced as a demonstration of negative public attitudes toward direct mail from lawyers to individuals. For example, the "key Findings" of the report begin "Overall, the results of both the general population and direct mall recipients surveys point in a dearly negative direction for direct marl advertising and solicitatby n ttorneys." Of those in the io a general population survey who responded for or against lawyer advertieing by mail, however, 48 percent were for and 52 percent were ahosnsmoSixtlykehree ot eto eotheowisounk:nadulhs w gto find to. 24, yer,sumablyin t gale t st i tly n p rc nt r f y e g ow t o a ed 18 _ law pre were favor of direct mail. The report's detailed findings indicated that "Florida adultisboth n surveys seem to be highly positive about the process used most frequently by the public to fred and retain a lawyer." (That being some type of p s n f en al. su y w ev d ive o h respondentersoina]theregerrera)l Yertvemorehothan d oneveirn useery a flawyerf tree ha ne ported that it was hard to get enough information about choosing a.

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LASC 01535

!

LAWYER A DVER_SING A]" TH_ CROSSROA.DS

TH_ ROL_ OF I._ WYF_ ADV'ER*rIsING WrFH_

TH_ GOALS OF THE ABA

lawy'ez.m

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Measures

of public

attitude

that do not tend

to be a_liated

with

The NevadaBar tookan approachsimilarto Florida.Prior to the[
promu!gation of rules/.ike those adopted earlier in Florida, the Bar[
s n or d a u ppot sheerulepublnc eat'tUudes survey"and interpreted the results to s_p-/ or t cha i g s it TA13I._IV QUESTION
Is it proper for law firms and lawyers to advertise Advertising would help consumers make more intelligent choices between law firms and attorneys I would use the services, i¢needed, of a lawyer who advertises Advertising of fees wouldlower the public's image of law firms and attorneys Aclveitising by _w firms and attorneys would tend to lower the dignity of the profession Advertising of services would lower the public's image of law firms and attorneys Advertising by law firms and attorneys would tend to lower the cred_ility of their profession

regulatory gendas eemto rear.hdifferent onclusionsThesestudies a s c ,
suggestthat the public is considerablymore accepting of lawyer adverrising in general than one rnJght expect but that attitudes narrow as the
attitudes a.mong consumers in C-eorg'ia in 1988, and the results are as

mediabecomesmoreinvaslve. or example,Prof.RoySoblesonsampled F
summarized in Table V._

Pre-test 76%
(proper) 59% (agree) 67% (agree) 28% (agree) 33°/',, (agree) 16% (agree) 23* (agree)

Post-test
70%

1988Georgiaconsumer attitudestoward
lawyer advertising, by medium
Percentage Percentage

TABLE V

54%

MEDIUM
Yellow Pages

Favorable Unfavorable
79% 57% 54% 13% 30% 33%

74% Newspapers 37% Pamphlets

Television
34% Radio Promotional Products 20°/* -

44%
41% 30%

48%
49% 62%

Billboards
35%

25%

63%

Similarly, the Nevada Bar-sponsored study looked at consumer How ppropriatie it for lawfirms ndattorneyso 4-9% (O.K. a s a t
advertise their services on television How appropriate is ff for !aw firms and attorneys to advertise their services on the radio How appropriat ,_ is it for law firms and attorneys to advertise their services in the newspaper How appropriate is it for law firms and attorneys to advertise their services by mailing brochures to 'our home or office

43°/.

impressionsas posi.tive,negativeand useful. As Table "V-ishows, the
more invaslve types of media tended to hz, e higher negative rafirtgs but v

49%

(O.K)

64%
68%

also showed appreciable levels of useflxlness.This was partloalarly so for television, where neasly a third of those surveyed found it to be "esefi.d" (compared ojust more than a third who indicatedit was negative). t

76% (O.K.)

16% (O.K.)

10%

LASC 01536

f
!-

LAWYER A DVERTL_C ATTH_ CROSSROAD_ q

THE ROLE OF LAW'rERADV'KR_INU WITHIN _

GO.tLS F THE ABA O

TABLE Vl 1990 evada consumerattitudes toward N lawyer advertising,by media Positive Effect Percentage 11.3 16.5 6.5 7.2 Negative Effect Percentage 2.9 36.7 14.8 5.4 GRAPH0 1 A,_,,m_n_r_ ug _,_,,,_ indJ,=_,_ approva_n_-mm_¢ " ml g tom .,=_,:_y,p_v. to =_b'or_v. + _ 7 _y

MEDIUM Telephone irectory D Televisi6n Radio ,

Useful Percentage 59.4 31.8 23.6 19.3

Newspapers

Magazines Direct Mail Billboards

5.3 8.7 3.6

7.9 13 19.6

20.9 24.1 12.8

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Researc.h .]so lus_atnshere is a _[betwee.n the opJ...'fions ld by a iL t he ,_ la_!ers a.ndthose y thepublic on issuesinve]v'mglawyer _ve__sing. b Research conducted by faculty at the Cleveland State University Marketing Department measured attitude differences between consumers and lawyers according to 1) spedfie types of media, such as television, Yellow Pages _d sppnsorship of community events; 2) functions of adve_semen_, ra-ug'ing om educatingconsumersabout _ts to Lm. .E Pr° v'L_-pro£e"ionaJ_m gea.udcreatingu.m-I_ecessla.w su.183) iDJ'or. g" a a ry , mat.ion desired for television advertisements, such as services provided, le ca i es hou o an m price; sorvitcon,in varris us d edia. *0and 4) perceptions of quality of the leg'a] The following graphs illustrate the results of this research. In virtually every response, consumers are sigulficanfly more positive about l_.w),eradvertising than lawyers. The researchers report their findings are consistent with pre,_ious empLrica] studies, concluding that attorney attitudes toward lawyer advertising range fi'om negative to neutral, while consumer attitudes are described as neutral to positive. The researchers indicate that the less favorable responses by ]amye.r_ are normative, passed down through fm-n cultures, and that they may stem _om the long-t_ne ethica] ban on the activity, whereas consumers want information and consider adverrising a method of becoming better educated. They suggest that even if

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the perception of a specific lawyer based on his or her ad is negative, it is still helpful to consumer/ because they are better able to make decisions about who to select for legal services." LASC 01537

LASC 01538

LAWYER A_3VE_,T/S_4GTH_ _osa_o_d:Is AT

. T_ R'OLE F LA_r_ AD'v_G O

WFFH]NTH_ GOALS OF TEE ABA

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The A.BA Commission on Advertising itsel£ sponsored and conducted empirical research measuring attitudes of the public and comparing them to those of lawyers, In 1990, the Commission issued its reporton the SurvIy on the Image ..of I._w'yers in Advertising. This e .. stud)'showed actual examples of pnnt ads and televmmn commermals for legal services :to members of the public and to lawyers, Itthen measured their impressions on various concepts ofdignity within the ads. The study reported these findings: · Consumers are more accepting of lawyer advertising than are lawyers. In nine of ten actual ads and commercials, consumers gave higher dignity ratings than did lawyers. · Consumers areess strict than lawyers in assessing dignity in lawyer l advertising. · Print advertising is not inherently more dignified than television advertislag,a In conjunction with the hearings, the Commission has conducted its own research to examine some of the issues brought up in this process. A fundamental concern has been the public images of lawyer advertislag based on the content of the ads, As noted, the Iowa State Bar Association-sponsored research assessed public attitudes before and after they viewed television commercials. The University of Iowa Law School Contemporary Studies Project did similar pro-test, post-test assessments in 1991 with far different results. Neither study, however, attempted to measure the potential variations based on the different contents of the commercials. Therefore, the Commission conducted _. mall intercept study to analyze I3 images of the public in response to three set of commercials for legal services. The study surveyed 217 individuals divided into four groups, The firstwas a control group which saw three television commercialsanrelated to legal services. The second group saw commercials for law firms that h_t high production values and were designed to stimulate positive images, even though ey did not provide substantial information about th the firms or their lawyers. The third group saw commercialsof limited pro ducfion value, but with high informational content. Each of the three commercials seen by this group featured a lawyer from the h in an office setting. The fourth group saw commercials that had some element of sensationalism, dramatization or exaggaralion. The survey participants were asked to complete a questionnaire about their images of lawyers in general. They were then shown their respective set of three commercials. They were asked to complete a questionnaire on their personal demographics, followed by a questionnatre asking for responses to the same images as those on the first

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LAWT_RADVER_7_NG T_ A

CROSSROADS

THE ROL_ OFLAWYER ADVERTLqN WYFA_ THEGOALSOFTHEABA G

questionnaire.

For all but the control

group, the participants

were then

given a ques_ounaire asking for their images of the lawyers in the law firms they had just seen advertised in the commerdals. When the survey respondentmages of lawyers were compared i s' befofrie and a'fter they saw the commercials, the differences were rarely s tai'LS ca_y slgn'ilqcanLIn other words, overal_ consumers dld not react differently to lawyers in general after they saw the commercials, Those who saw the "high-style" commercials found lawyers to be significantly more intelligent after they saw the commerdals. Those who saw the amld-style" commercials found lawyers in general to be significantly less honest after seeing those commercials. Those who saw the 'qowstyle" corn.inertia.Isound lawyers tobe signi.ficandy more intelligent f and knowledgeable after watching those commercials. _ Graphs 14 through 16 illustrate the limited changes in image before and after watching the commercials. However, when the survey respondents who saw the high-style commercials were asked about the images of the lawyers who worked in those Fu-msshown in the commercials, they reported significantly higher images than for lawyers overall. Graph 17 illus_z-ateshese changes. For t some images, the respondents who saw the _low-style" commerd_ls reported significantly lower results." The responses were not significandy lower overall for this group. There were no significant changes in images of lawyers in general to the advertising lawyers for those who saw the "mid-style" commercials,

GRAPH 4 1 _ _rl_ olI_bFbl_._eslawyers _ of _m and l_rv_ng _.Styla to_vison mmB_cals a = 1ABA Comrr_zsion on Adverting Suwoy

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· The content of television commercials for legal services positively affected consumers' images toward the lawyers of specific law firms that advertise, with significantly greater increases in images of t_rms that had higher quality commerdals; · The television commereiabdid not affect the consumers' images of _ lawyers in general, either positively or negatively; and · Consumers were able to and did differentiate between lawyers ha general and those lawyers whose advertisements they had just
seen? /

_ _"

m

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, LAW_:_ ADVL_T'_3_NG THE CROSSROADS AT

THE ROLZ OF LA_YF_ ADV'_KTL_NC ITHIN THE COALS OF THE A SA W

GRAPH 15 ABACommis._on AdvertingSurvey an Mean _ms of!mub_c nagofsawyem s ir Gl befona d_'_r mw_ng id-S_4o ev_o_mmerlcaJs an v M _l n
10-I --

GRAPH 16 ABA ommon onAdver'_mg uwey C S Me .,., =m_ofpubSc nag_a f lawyem a '_ ir o before d fter wingow*Sty_evi_nc_mmeric_ an a v_ L lo

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THE I{.oI..5 F LAWT£,ADVT.,gTIS_WITH:_THEGOALS FTHEA BA O _ O

GRAPH 7 1 AaA ome.on on_vor_i._g _rv_ c S ·:_t_arof ow_g_b_brLh._,tnaoaf_.arnwrlcalalawors vl _age _mS ,yl nd a_ o oho _,a,"_ a

Some research has been done and much discussion has occurred about an issue that has been labeled "jury pollution." The concept i_ that public exposure to l_.wyer advertising influences decision-maklng when serving on a jury. In the study sponsored by the Florida Bar measuring a_tudes and opinions about direct mail_ &sample of those who had received direct mall solicitations were asked ff direct marl solidta!:ion would have any affectif they served on a jury. Eleven percent of those who responded to the question indicated the direct marl would have an affect. There did

not appearto be subsequent uestions bout the extentand nature of q a
that affect. Hence, it is unknown whether the affect would have been a bias against or in favor of a lawyer, a. party or the judicial system. It is also un_owawhether the bias would affect the derision-making even if the court admonished the juror against it.z The Nevada Bar-sponsored study went into the issue in slightly more detail. It first asked respondents ffthey had served on a jury. Of the 815 peoplequestioned217repliedthat they had. Of those 217,18 , reported that they were on s. jury where they recognized or were f_m_]_awith one of the attorneys because the survey respondent had r seen or heard the attorney in a television or radio advertisement. Knowing that a. lawyer had advertised had no effect on 17 out of i8 respondentss rvice as ajurur, while one person reportedthat it had an e adverse effect;that person also reported, however, that he or she did not "_ _= 3 _ _ ._ _ _. _= £ _ _ know whether that adverse effect had anything to do with the lawyer's client.Thls suggests that one out of 815 people may or may not have been prejudiced against a client who was represented by a lawyer known by the juror to have advertised. The survey then asked the entire sample, hypothetically, were they to become a juror in _e future and recognized a lawyer in the case as one who advertised on television or radio, whether that knowledge would affect them. Seventeen percent indicated it would: 2.3 percent favorably and 15.1 percent unfavorably. "When asked if it would affect their feelings about the client, however, the number who felt they would be affected unfavorably dropped to 8.5 percent. When asked if the information would affect their decision in the case, 6.0 percent reported it would do so unfavorably. When those who indicated it would have an effectwere asked if it would have an affect even If the court instructed thejurors otherwise, half reported it would. This results in 31 out of 796 survey respondents (3.9o/o) eporting in the hypothetical that the fact r that alawyer advertises would affect their decision over the instructio_ of the court._7 In 1988, Stephanie Moore Myers submitted her thesis for an M.A.

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r
,LAWYER ADVERTL_NG AT THE CRO_ROA.DS THE ROLE OF LAWY7_. ADVF,R'_ G WITHIN THE GOALS OF TH_ A BA

in Communication Studies at the University of Nevada, Las Vegas, entitled Attorn_ Adv_rtin'ng: 27_ Effect on Juror Porrzfitior_ and Vordias. The research was based on a survey of jurors who had sat on trials in I.as Vegas, questioning them about their oph'fions on their jury service and about lawyers in gane__al, including those who advertise. Of the 221 survey respondents, only 30 served on juries where s_lawyer in the case was one who advertised on television. The study reports that of those 30, five voted in favor of the plaintiff and 25 voted in f&vor of the defense. When this sample was compared to the 222 respondents commenting on plaintiff's lawyers who did not advertise, the jurors reported that the non-advertisingIawyers were rated signi_canfly higher in the manner in which evidence was presented. There was no significant difference between the advertising lawyers and the non-advertlsing lawyers in the credibility and sincerity of the lawyers or in the presents.floe, however. When the study compared the plaintiffs lawyers to the defense counsel, the defanse counsel rated significantly higher than the plainti_s advertising lawyers in credibility and sincerity and in represanting heirlient. Although theresearch esign s creative, eret c d i th search tself toolinfited draw conclusions.evertheless,ose i is to _N th interestinconductinfurtheresearcon the ssue f'_jupollution" ed g r h i o ry should eview hethesiin detail. r t s The issue of "jury pollution" is complex, both theoretically and pragmatically. While it merita further extensive research, studies known to the Commission at this point would not justify & conclusion that adverfisingby lawyers creates an impact thatlegitimately interferes with the administration of justice, C. DISCIPLINE S A MEASURE FATTITUDES A O Another measure of public altitudes toward the communication of legal services is the level of disclpllnary complaints. Many factors make it extremely di_cult, ff not impossible, to measure accurately the frequency, nature or origination of complaints based on lawyer advertlsing, solicitation or marketing. For example, records are not designed to permit these measures; terminology vazies from venue to venue; and, in ' some jurisdictions, records of complaints are confidential, Nevertheless, the Commission has explored the extant to which consumers bring disciplinary action both within the Commission's hearings and through an informal, confidential survey. This anecdotal information tends to suggest strongly that consumers do not complain with any frequency about lawyer advertising. Most complaints originate with competing lawyers who find themselves at a competitive disadvan-

rage with those lawyers who are allegecUy making unethical misrepresentaiions. Even these complaints appear to be a very srn_ percentage of disciplinary concerto. Of the consumer complaints thai are lodged, most seem to be the result of direct mall solicitation, which may have embErassed or of. fended the recipient. The State Bar of Texas instituted a hotlina to provide a readily-a.tfiable method for consumer complaints about improper lawyer solicitations. Not only does the hodine provide a format to enable prosecutions, but it also measles the extant of perceived problem. The hotline is designed to help enforce the state's barratry statutes, involving illegal in-person and telephone solidta_ one of clients. For the re-st eight months of its operation, the hofline averaged 20 calls per weak. Seventy-five percent of those complaints were about direct marl solicitations from lawyers to potential clients, which, if truthful and non-deceptive, were legally and ethically appropriate cornmunications. For the first ten months of 1994, the hotiine averaged three to eight calls per month complaining of in-person or telephone solicltation.'While w complaintareinthegrievancprocess, ne ofthem afe s e no haveled to prosecutioin the In-st ar and _. alfof the hotline's n ye h operation _ This informatiodoes not serveto measure collaterproblems n al with lawyers who may advertise or solicit for business. Disciplinary records simply cannot determine whether a lawyer accused of case neglect obtained that case as a result of advertising. _ Insofar as there is direct consumer concern about the communication of legal services, complaints are extremely limited. D, PROFESSIONALISM Many of those who objected to advertising to the Commission, indicated that advertising was '_anprofessional." Notions of prnfesslonalism and commercialism seem antithetical. Professionalism arose as a concept in the law in pre-Colomal England. Lawyers sought to distingtfish themselves from tradesmen. Since l_.wyerswere among the social elite, from families of wealth and property, they were interested in preserving social order rather than delivering services in exchange for remuneration. As a result, the practice of law came to be viewed by lawyers as an activity dedicated toward the public good. The collegiality th_-esulted from the common training of rt sod_y homogeneous men at the Inns of Court further contributed to an environment void of competition [or representation. Although there has been an inherent sense of public responsibility

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· LAWyEK DVERTISING T T_ CKO_ROMDS A A THE KOLE OF LAWYF.,R DVEKTISING l'rft_ THE GOALSOF THZA BA A W
i

among thelegal rofession n America, lawyershave undertaken these p i

attornewith the expectation hat isservice_ y kh s

be rendered

responsibilsimultaneously h ommerdal racticTherefore, ities wit c p es. professionalismmericmostoften asbeenviewed sa concept inA_ a h a ad n e a i on ast ci l li v ces madrerss_ng tfor el,egavisetry iand. public spirit, but not the absence of reAn historic view of professionalism shows that it is the subject of a questwith great durability. When the Igth Century antebellum industrialization unfolded and many of the best lawyers became the counselors to the robber barons, many in the bar nostalgically lamented the loss of a profession that was dedicated to serving the people, Nearly 90 years ago,Justice Brandeis expressed the concern this way: Lawyers are now to a greater extent than formerly business men, a part of the great organized system of industrial and ffuandal enterprise. They are less than formerly the students of aparticular kind of learning, thepractifioners ofapartlcular a o A sd al cl s. prt. fesniontheyasdon not seem to be so much of a distinct The same sentlment conlluues to be advanced neazly a century later. Compare Brandeis' concerns to those of Sol Linowitz today: Iu too many of our law firms, the computer has become the managing partner and we are ruled by hourly rates, timesheets and electronic devices. We have seen an increase in technologic.a! expertise with a corresponding diminution of the human side of law practice. We are making more and aceaevieal lof whatdwn were roeans, tIoabe afraid, we have lost a m_ gr hi t d ng ess, an i e the p mces t · The point is not that these concerns were or are legitimate, but that they have endured throughout the 20th century. The Stanley Commis. sion Report, In the Spirit of Public Service, addresses this phenomena when it states, "Perhaps the golden age of professionalism has always been a few years before the time that the living can remember, Legend tends to seem dearer than reality."_ As to the relationship between professionalism and commercialism, Justecsumlmckmud, itfor sthe Supreme Court in the .Batesdecision, may l e B a arizen be : hav But we find the postulated connection between advertising and the erosion of true professionalism to be severely sa'alned, Atits core, the argumentprestmaesthatattorneysmnstconceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception. And rare is the client, moreover, even one ofmodestmeam, who enlists the aid of an
.

freefcharg_ . o e According o theABA Blueprint orImproving the Civil t f Justice System., There is awidely shared belief that there has been asubstanfial decline in adherence to the traditions of the bar and of appropriate relationships and civility which should attend the practice of law among and between lawyers, the judiciary and clients. This decline is often characterized as a lack of professionalism. Professionalism lies not so much in following certain rules as in the development of personal attitudes and a mariner of deportment that leads to appropriate professional relationships and courtesy in maimer and deedY If professionalism is construed as a nostalgic notion of an era, perhaps a fictitious one devoid of commercialism within the practice of law, it falls short as a valid objection to lawyer advertising. If, on the other hand, it is advanced as a notion favoring civility, good taste and improved decorum within along-commercialized profession, then, those issues must be considered hy the bar. Doing so would suggest a focus on specific advertising rather than the issues of commercialism and competition as a whole. E. THEROLE FADVERTISINNACCESS OlEGALSERVICES O IG T Mauy who provided information to the Commission expressed their concerns about the role of advertisingin the declining image of the legal profession. Some tired, as anecdotal evidence, social encounters with friends aud acquaintances who are critical of the most overt advertising endeavors, primarily television commercials. These opinions are substantiated by some empirical evidence demonstr'alfng that many, ff not a majority of consumers, when asked, express negative attitudes toward lawyer advertising. Despite the eonilicting evidence aud ambiguous research, these critical views of lawyer advertising might provide compelling guidance for policies on this subject if there were no competing interests. The ABA, however, is also dedicated to improving access to legal services. The role of advertising to meet that goal must be given very serious consideration. Many of those who appeared at the hearings discussed a crisis in the delivery of legal services to the low and middle income populations. There is a lack of resources and mechanisms for people to first determine whether or not they have a problem that can be solved or helped if they are represented by a lawyer..Additionally,

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THE ROLB OF LAWYERADVERT/SING ITH_ THE GOALS F TffE A BA W O

.:

i

'!_

they eedtoknow h6w tofred lawyerho is apablandwilling n a w c e to LA Tf.R ADV_RTIS_G AT TH_ CROSSROAD_ W represent them when they have identified their ]eg_! need. The commitment by the bar to the delivery of legal services is wel reflected by Judge Learned Hand, who said Lhatfor a democracy to be preserved, there must be one commandment: "Thou shalt not ration joatice." Inits Blueprint for Improving the Civil Justice Systen_ the A.BA'sWorking Group on Civil JusticePropos_Lstate& ak=yp rop osaJ _ to improve the dviljusfice system should address first and foremost the need to provide accesso thejustice systemfor all A.mericans."_ t As discussed bove, the communicationof the availability of legal a servicesincludes adve_tlsi.uby firms servingcorporations,which _ g to identify the firm's image and create better recognition. But the access issue is most applicable to the delivery of personal legal services to those of limited incomes. The"unmet legal needs of the poor and middle class have been the subject of discussion and concern for more than 60 years. In the depth of the Depression, Karl LleweIlyn proposed a plan to bring legal services to an estimated 80 percent of the public who he believed could not otherwise obtain legal representation. His plan was the genesis of neighborhood legal clinicsY .At the same time, the Association of American Law Schools initiated a formal study of the use of Iawyerd services by the public, A variety oflegal needs assessmentnce have si s uniformly illustrated unacceptable levels of unmet legal needs eoncenhated in lower and mlddle-income populatlonsS* "When, ia the .Ba._sdecision, Justice Blackmun cited a 1972 A.BA report that conduded the middle 70 percent of the .American population is not being adequately reached or Served by the legal profession, he poignandy noted that even though litigation may increase as a result of advertising, '_wecannot accept the notion that it is always better for a person to suffer a wrong sflendy than to redress it by legal action. "s9 Clearly an increasing number of people are usingimpersonal methods of finding lawyers, including advertising,lawyer referral and prepaid le_. services, ratherthan personal eferralzom friends, acquainr fs

TABLE VII Distribution of Lawyer Users by the Way Lawyer for Most Recent Case Was Selected First Later l_scyon seaectyer aw_er l_ w ic_ s , "E % 33
52

METHOD SELECTION OF Useld wyepreviously a r _awlawyepersonalitnother ontext r y c _mend_ bysomeonother than prioattorney e r 4eard l lawyebutnot through ecommendationreferral e r r r
Other ay w

2%
31 53

6
9

3
1

Table VII-I-A illustrates that far fewer ethnic minorities knew a lawyer than did whites at the fine of that study. Minorities were substantially more likely to use the recommendation of someone else.GI TABLE VIII-A Method of Selecting Lawyer by Race M_"4OD RsIorr_bypriorlawyer Usedawyer reviousoy business l p ln Knew wyern othercontext la i Racommenbysomeonotherhan riorawyer ded etpl
Heardof laywer butnotthroughrecomr'hendatJon eferral or r

Whit_
3%

B!aek-.._ l.aUnos
2"/,

2 34 48
5

1 12 71
4

tances and work colleagues. There are indications that those £udlng lawyers in these impersonal ways now are mostly minority and lowincome population who had dffRculty finding a lawyer at a.U20 years
ago.

Otheway r

9

10

The 1977 American Bar Fotmdadon-sponsored study The Legal Needs of the Public.: The Final Report of a National Survey, provides a benchmark for identifying the ways in which people found lawyers to meet their legal needs. Table VII illustrates the methods of selection employed by people shortly before the 2atar decision2 °

Similarly, but to a less extent, lower income people were less likely to know of a lawyer and more likely to turn to someone else for a recornmendation.a Those recommendations came from the following sources=:

_

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TI_ RO_ OFLA_,

ADV_TI,_G W_

THE GOA_ OFTH_ ABA

TABLE VIII-B

Sources f ecommendations oR
Friend,neighbor,fellowworker,businessaquaintance, tc. e ReLative Adversaryor other party in transactbn Anotherlawyer Realtor Employer Bankor financialinstitution Insurance ompanyor agent c Union ' Yelbw Pagesof telephonedirectory Lawyerreferralservice Miscellaneous 39 7, 23 6 4 4 4 3 2 2 2 0,1 11

How NevadaResidenFoundLawyers, percentage ts by Recommendation Personal cquaintance ith Attomey A w Yeibw Pages Other Sourcesof Referral Local BarAssociationRecommendations Television dvertisement A Other Formsof Advertising Don't Know 51,1 21.7 11.8 9,1 2.8 1,6 1.2 0.6

TABLE X I

Table X illustrates how people who had not retained a lawyer in the pastwould find one, if they neededto do so.r_ TABLE X How Nevada Residents Would Select a Lawyer, by percentage Recommendatiofnom family/friend r YellowPages Local BarAssociation Recommendations Personal Aquaintance ith Attorney w Television dvertisement A Other Formsof Advertising Don'tKnow (54,4 12.9 9,4 8.8 2,5 5 6.6

Since the .Batesdecision, impersonal methods of selecting a lawyer ha vi es, soc a ervice ing role o h n e me hons i ac ' u ou " y _I servecplayed ialnsincreasreferrals., Treesaid ntlads mndl_'de "lalw_'er referral inadd[llonadvertislng.· --.va_ietv ' of sta_; and had o_ to "t_' i_sserviices tO " Ar y ° n s ud e ident fy *" both how people selectedtheir lawyer (when theyactually engaged ne) o and how they would select a lawyer (which includes those who had not prevl,'ouslyused the services of a lawyer, providing a better minority end lowincome representation). Sobleson reports in a 1988 survey of Georgia residents that 60 percent would ask a friend or relative for advice on which lawyer to choose, while 13 percent would include advertising of any kind in making that choice._ Table IX shows the ways in which Nevada residents selected lawyers as reported in a 1990 study. 6s LASC 01546

Recent national data demonstrate that those who have used legal services still heavily rely on personal recommendations, but less so than in the past, with advertising, in partic'ular the Yellow Pages, serving as the most common method oflmpersonal referral. The 1994 Yellow Pages Publishers Association-sponsored Wiese study identifies the sources for selecting a lawyer as depicted in Table XI. These open-ended responses show higher usage of advertising methods compared to other impersonal methods. _

LAWYfRADVERTIt"!NO T _ A

C'RO_ROA.!_

_

KOLEOT LAWYER DVT_.'I1SINO ITH_ TH_ GOAI_ OFTHE A BA A W

TABLE XI

Sources Used to Choose an Attorney FdencVrelativrecommended e Knewattorneypersonally Yellow Pages Word.of-mouth Personalreferral(unspecified) LocaVcloseo home t !Own lawyerrecommended Companyattorney/through ork w Usedbefore/peesonalxperience e Profession_rJ commendation e Through legal agency/service Real estate agent TV ad Reputation Allother sources Don't know 44 % 11 10 8 S 3 2 2 2 2 2 2 2 2 12 5

Table XII Referral Source by Income Category Low-income Moderate-in households households 32 % 32 18 6 3 4 38 % 34 11 4 less than 1 4

SOURCE Referred y friend b Already new advocate k Foundin Yellow Pages Lawyer eferralService R Ad in print/elestronicmed_a Other(hotline,direct solicitation, repaid) p

According to this researcl'h more than one in every five low-income households use a form of lawyer advertising m find a lawyer, while nearly 12% of the moderate-income ikmi.llesdo so. Those who advertise personal legal services, especially personal injury or other contingenCy-fee services, target low and moderateincome populations. Those prospective clients in these demographic categories are the least likely to know of other resources for finding a lawyer. The results of the Comprehensive Leg'aJ Needs Study clearly indicate advertising is a viable vehicle to enable low income f_es to find legal representation. The importance of this finding cannot be ignored as the organ.ized bar continues to pursue its goat of improved access toall ersons regardless of their income. Policies must be sensip I_veto this finding. ENDNOTES 1.ABA Policy and Procedures Handbook, Chicago, 1993-1994p.2. , 2. Id_ 3, I& 4. See 27_ Ga.llup 2{.eport,976, 1977, 1981, 1983, 1985, 1988; The 1 Gallup ollMontltly, Feb. 1990, May 1991,July 1992,July 1993. 2 5. Wiese Research AssoclaZes, Inc., AttorneyAdvertlsing/Perceptions Study, Commissioned by the Yellow Pages Publishers Association for

Data from the .A-BA's1994 Comprehensive Legal Needs Study examined how low- and mode-'-ate-income people obtained legal represenradon. Table X'7_I emonstrates the dimension of the role played by d advertising, espedatly the Yellow Pages, in the delivery of legal services to the poor. _

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, LAWYER DVER'rIsI_O AT THE CROSSROADS A

THE ROLE OF LAWYER DVERI_INO WITH_ THE OOA.LS F TH_ ABA A O

'

the American Bar Association, (1994) Figures 1,2, p.i0. 6. Gary A. I-Iengsder, Vex 2_opuliThe 2_lic .Perce_tion n Lawyers: , o ABA Pol_ABA Jourmd, September, 1993, p. 60-65. The demographics factor of those with the most favorable opirfion of lawyers was the same as those found y the Na.tionad l--w b to be most likely to find a l_.wyerthrough advertising. See Sambor_ Supranote 4.7. 7. Joel W'haJe_ DePaxd University Assodate Professor of MarketJag, advised the Commizsion that there is not enough exposure to lawyer advertising to compete in creating an adverse image of the legal profession. He represented that negative images are more strongly formed from fictlonaiized television programs that have the capacity to have a far greater in.fluence. Both ProfessorWhalan and Robert Zabel, Midwest Director of the Ad Council, testified that the service (or product) shapes the image. Professor Whaien indicated that someone unhappy with a service will tell 13 others, while someone pleased will telI three others. !'fir. Zabel testified that advertSsiag is li_ted by its consistence or inconsistence with the service. People will not respond over a period o f time to advertising that is not con.sistentwith that which · it offers. Thus, ff lawyers advertise that they want to help, but show no willingness to do so after they are hired, the client will not support the firm and the advertising will prove to be ineffdctive. If, on the other hand, the advertising projects a message that lawyers are greedy and the lawyers sustain thaZ image with their conduct, the ad will continue to produce that impact. 8. Who_sMastAdmiredLamyer?, he National LawJournal, August T 9, 1993, p. 24. 9. See for example Barbara A. Curra_ The Legal Needs of the Public: A Final Report of a National Survey, The ABA Special Committee to Survey Legal Needs and the American Bar Foundation, 1977, at 232; where Watergate was prominately mentioned by those who reported they had become more negative about lawyers and their behavior. 10. Supra. note 6.6. 11. Randall Sambom, Anti-£awyerAttitude Up, The National Law Jourmd, August 9, 1993, p. I, 20-24. 12. SetWiese supranote 6.5 at Table 2, p.14. 13. Ia_ 14. Seefor example, Why Lawyers Are in the Doghouse, S. News & U World Report, May 11, 1981, p. 38-41, which rites numerous examples of misconduct, 15. Marianne Taylor, Nine are Indi_d in Cook County Court.Prob_ Philadelphia Inquirer, December 15, 1983atA1; William ]3.Crawford

Jr., GreylordInd.ictmen_Iut Suburban Gour__J.ica.go Tribune, Decemti ber 10, 1987, at 1. 16.Randall Sa.mborn, Complm'nPuts Fraud at $500K, The Nalaonal t LawJournal, September 19, 1994, at A4. 17.Matt O'Connor, Cdlmate ofl4_tnessTellsof __2knsBoasts,C-Satcago ' Trthu.ue, December 9, 1992, at 1. 18. Clay Chandler, .Repablica_ Urge.Bontsonto .Fire3: SenatorsSay TreasurAides Were Not 77oilyTruthful'on Whitewater,The Washington y Post, August 11, 1994, at D8. 19. The television program Saturday Night I_ave has parodied television commerdals for legal services. Chicago Tribune columnist Bob Greene wrote a column critical of direct mall solldtations to people charged with drunk driv'ing violations. He expressed the embarrassment suffered by the recipients of these letters. See Chloigo Tribune, Section5, page), April 18,1994. Advertlsingwus the subject matter of a column in the Stnten Island Sunday Advance by Daniel D. Leddy, Jr., tided How once-proud egalprofesAonriggeredts ded,'ne,September 25, l t i 1994.k-person solicitation of mass disaster was the topic of a segment on the television program 60 Minutes, which focused on Washington, D.C, lawyerJohn Coale. Somewhat more frequently, lawyer advertising is among the problems of the leg'al profession listed by commentators. For example, 60 Minutes commentator And), Kooney used the prolffe_rationf lawyer advertising as an example of the need for tort reform. o 20, Susan Sch.midt, Vote N4: The Nation - For In&'_d Member of Congress,Clout R-pepshe Cash Coming,The washington Post. Novemt - ber 6, 1994, at ASS; Ray Gibson, .RartenkowshCampaignFunds areB*ing ' Used to PayLegaIFeeg Chicago Tribune, December 9, 1992, at 10. 21. Debbie Howle_ The Milllon-DoUar Question:Oj..'s D_-enseTab FacingState's 2_.sourceis a Costly ffair, USA Tod_y, August 5, 1994, at . A 10A. See also ohn h Mitchell, RodneyKing's Lawyers_ill City. SdMilllor_ J The Los Angeles Times, September 24, 1994, at A1. 22. Ruth Marcus, GTimon egal Dor_nseFund Won't £ar Lobbyists' L GzftsThe Washington Post, June 30, 1994, at Section A. , 2S. See Curran, supra note 6.8, at 185, where it reports that 66 percent of respondents had at least one professional contact with a lawyer; Vox:P@ulisupranote 6.6 reports at6I that "Nearly two-thirds of , Americam surveyed ]:mveretained a lawyer in a legal matter during the past 10 years;" Samborn correspondence, datedJune 30, 1994, reports that 70 percent ofNational LawJo_ poll respondents had cont,y:ted an attorney for either personal or business reasons in the past five years; and Wiese research indicating that 79 percent of respondents lived in a household where a member had obm.ined legal services from ma a_tor-

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25. 22L4 urv:y on LawyerAd_erti.n'nt_ ennsylvania Bar Assodation S P Task 6.orcepranotaw5.er Advertising, 1992. 2 F Su on L e y 14. 27..Fax .P0!!Ca!lfornla Lawyer, April 1992, p. 112. , 28. Supranote 6.24. 29. SupranoteS.14. 30. There are also indications that lawyers are apathetic toward lawyer advertising. For example, the State Bar of Texas had difficultyin getting more than half of the state's lawyers to vote on regulations govenainglawyer advertising. An ABAJournal article that appeared in February 1994, entitled Image .Problem,resulted in three letters to the editor (all of which were from l_.wyers and disputed assertions that advertising contributes to lowered public image). The efforts to obtain input for this report, undertaken by the Commission on Advertising and detailed in Chapter I, did not result in comments from a large number of lawyers, 31. Supranote 5.11. 32. Supranote 6.5. 33. Carl Nielson, executive direction of the Iowa State Bar Associatinn_ testified that the research organization of Frank N. Magid Associat.es had beeu employed to undertake the bar's research on lawyer advertising and that they were selected because they had been used by the bar to carry out research that demonstrated the need for merit selection for the judiciary. 34. Attim_ and opinions TawardAdvertising or Law Firms, Frank N. f Magld Assodates, March 1983. 35. Supranote 5.26. with36hoae aof2l40-2st1. ente soudyhisonsrast,s sthowipinitons ohotse of baic t . fs [ t aw 4ud Th s t n t c i t sue he o ng hat t f he pu l l w students, llke lawyers generally, are more parochial on these issues. 37.Attitndes_OpinionsofFIoridaAdultsTowardDirectMailAdmertising byAttorneys,Frank N. Magid Associates, Dec. 1987. 38. Tesfimonyprovided byDavid A11en,ala.wyer who advertises on television, indicated that dam reported in the t_port of Yindlngs, Nevada .Lawyers'Adverti.6ngSurvu, tmdertaken by Litiga_onTechnologies, Februa W 1990, was inconsistent with the representation made about that data. 39. Roy Sobelson, The _ of Advertisingby Gevrgia awyers: Survq L and Analysis,6 Georgia St. Univ. L l<ev. 23, Fall 1989. 40. Legal Services dvertising:A Comparisonof Attorney.and Cmmmtr A
100

42. Report on the Survey on theImage fIawyer in Adver. o t1si90f,at 53-54.ssion onAdvertising, American Bar Assoda.don,./anu ary i 9 nf , Commi 43. All levels of significance are at .05. 44. The images where respondents who saw low-style commercials and found lawyers from the firms that advertised to be rated significanfly lower than lawyers in general are professional, knowledgeable, intelligent, effective and helpful. 45. The research identified here has not otherwise been published. The Commission is preparing a report on its findings and encourages others to replicate its methodology" to assess public images in other jurisdictions. It should be noted the findings are somewhat similar to those reported in the ContemporarStudiesproject, s'u.prauote5.26, where y the research establishes no nexus between public a_tudes toward lawyers and those toward the court If the public makes a differentiation between their opinions of lawyers (or their opinions of lawyers who advertise) and their opinions of the courts, then they may have a lowered opinion of lawyers yet maintain a high opinion of the justice system. This blunts the ability of a state to advance a state interest justifying re_lation of truth.fizl,non-deceptive information because of the possibility the communication will reduce respect for the courts and the system of justice. 46. Supranote 6.37 at 31. 47. Supranote 6.38. 48, S. Moore Myers, AttornzyAdoertm'ng,The_EffeconJurm'Perceptions . t and VerdictsDeparmaent of Communication Studies, University of Ne, vada, Las Vegas, May 1988. See alsoS. Myers, A. Padderud and A. Ferri, A9Sur,veyo1JI9.ors'Attitud_s TowardAttorneyAdvertia'nl_Inter A!ia., July 1 91 p. 1 f - ur 49. Sandra Goldsmith, Hotline Halt.r Ambulance-Chasersin Te.va4 ABA Student Lawyer, February 1994, VoI. 22, No. 6, p.8. Update information gathered in phone interview with !v_. Saadi Ferris, Texas StateBar on November 14, 1994. 50. The Commission heard testimony from the chair of the Utah State Bar Association's Committee on Lawyer Advertising, Steven Kaufi:nan.Mr. Kan_an presented extensive concerns about the ability of at least one lawyer who advertises on television to properly handle lab caseload. Extensive efforts were being made by the bar to curb allegedabuses caused by the lawyer. 51. ABA Commission on Professionalism, "... In the Spirit of
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ROLE OF REGULATION IN A

52. o] nowi_lqal ofe.uion asLosIts umanYoud_ he S_ _ H tH T
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