Under Analysis: The battle for the profession

Mark Levison, The Levison Group

As readers of this space may recall, a firm recently launched a negative campaign against my re-election to the Board of Governors of my state’s bar association, which included flyers and an electronic billboard. The campaign was sponsored by the state’s largest advertiser. The outcome did not go well for that firm, as its originally anonymous campaign eventually led it to putting its name on the billboard, which perhaps contributed to my win. The hundreds of e-mails, comments and calls of support were gratifying. Past employees of the firm contacted me, one calling his former office, “[T]he local fast food firm of the law.” Many plaintiff’s lawyers complained to me about their discomfort in having to deal with negative comments from prospective jurors who had been offended by that firm’s advertising. Sadly, one of my clients told me he was asked, “Who is this guy, Levison, and what is he running for, because if the attorneys are not going to vote for him, I want to make sure I do?!”

Although at first blush, the campaign may have looked like a battle between the advertiser and me, that is not the reality. I just happened to have been chairman of the Bar’s Special Committee on Lawyer Advertising and therefore became the target. The real battle was and is between the economic interests of a few advertising firms, and the overall health of the profession and the welfare of individuals seeking the help of lawyers.

In fact, this fight is being waged across the country. Big advertisers seem to have adopted a common business plan. The plan calls for assembling a pot of money to initiate an advertising campaign. Clients are secured through advertising, cases are turned over quickly and cheaply through settlements and referrals from the advertising firms to lawyers with some litigation capabilities. The resulting dollars are funneled into better funded advertising campaigns, resulting in more settlements and referrals, which in turn net even more advertising dollars. The business plan does not require advertising lawyers to have any trial experience. They only need to give the impression they have trial experience. Most of us are familiar with the national advertising campaign of the Sokolove law firm, which is apparently very successful, despite Mr. Sokolove’s dearth of trial experience.

In my town, the advertising firm’s lawyers have been seen on television, storming through courthouse doors, toting a “locked and loaded” slogan on their hips, looking very much like an experienced trial litigation team. That is not their general reputation among the local bench and bar. Of course, when firms settle cases cheaply, and virtually never try them, eventually defense lawyers draw the conclusion they can settle those firms’ cases at a discount. Once the advertisers have amassed enough money, the plan calls for the hiring of a lawyer, or two, that can try cases. While perhaps a good business plan, this does not seem to me to be a good plan for the profession, or for those utilizing their legal services.

It is often said that the big advertisers’ associates have dollar quotas which they must meet and time constraints in which they must resolve cases. We are told the key to securing good results for defendant companies sued by such advertisers is to offer very low settlement figures at the end of a month, when the employee lawyers are under pressure to meet quotas. A lawyer I know tried out this strategy.

His client authorized him to pay $12,000 to resolve a case, and he told me he could have gotten several thousand dollars more. He waited until the 29th of the month, called up the advertising firm and offered $5,000 to settle the case. The answer was, “fine.” There was not even an attempt at a counter offer. Although it was great for his client, he told me the poor representation by the advertising firm actually sickened him.

The issues confronting the profession today are even broader and more serious still. This summer I was at a circus with my wife. She told me she overheard an elderly lady, whose husband had been very sick, and just passed away, complaining about a lawyer. The lawyer had called her to ask if her husband had been prescribed a particular drug, because if he had, the lawyer wanted to file a lawsuit. The woman was telling her friend how upset she was with that lawyer for calling her. It’s pretty hard to cast this type of behavior in a favorable light for the profession.

It is generally only a few advertisers, in my opinion, that flaunt rules governing advertising. The money spent in the recent negative campaign was more than a shot across the bow at an individual, it was a cannonball shot at the body of the profession itself. It was an attempt to intimidate those who would stand up for what is the historic charge of the profession—to carry out our duties, first and foremost, for the good of the client. The challenge was laid down. A line was drawn in the sand, and lawyers stepped over that line and said, “We stand for professionalism, not the crass pursuit of profit first.” The election vote was not a victory for one lawyer; it was a victory for the profession and for all who came before us, and will come after us, who view being a lawyer as a calling, not as a business plan.

For those who say it is too late, I disagree. It is true the horse is out of the barn on some forms of lawyer advertising. We cannot go back to pre-Bates days. Further, the poor, who may not otherwise realize they can get wrongs redressed through the American judicial system, should know they have rights and advertising can so inform them. Still, that doesn’t mean that the vast majority of those who believe we are a profession, governed by ethical rules, cannot make efforts to protect the profession and those we serve.

We need to remember who we are and that we walk in the footsteps of Patrick Henry, Thomas Jefferson and Mohandas Gandhi—not pitch man Billy Mays. We need to redouble our efforts to make sure the rules are followed, and to let our opinions be known to the disciplinary authorities that they must re-energize efforts to avoid misleading advertising and to more closely monitor those who shame us with an “anything goes attitude” that is taking the profession in the wrong direction. We who believe there is a higher purpose to the legal profession, and to the American system of justice, than simply bringing in dollars, need to stand and be counted. In many ways, the chief blame goes not to those firms who use advertising to attract seemingly unsophisticated clients. The chief blame should be placed on the rest of us that seem content to throw up our hands and think there is nothing that can be done.

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Under Analysis is a nationally syndicated column. Mark Levison is a member of the law firm Lathrop & Gage L.C. You can reach the Levison Group in care of this paper or by e-mail at comments@levisongroup.com.
© 2012 Under Analysis L.L.C.

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