Excess of attorney ads sparks debate

The Missouri Bar says updating regulations will protect clients.
Sunday, November 21, 2004 | 12:00 a.m. CST; updated 10:38 a.m. CDT, Monday, July 21, 2008

Open the phone book, and there’s a fair chance you’ll find a lawyer staring at you.

In the 27 years since the U.S. Supreme Court declared it legal, attorney advertising has become a popular, multimillion dollar activity. It has also touched off debate within the legal profession, with some hailing advertising as a way to inform the public and others condemning it for hurting the profession’s dignity.

On Friday, the Missouri Bar Board of Governors weighed in, recommending that the state Supreme Court update court rules that regulate how attorneys can advertise.

State rules governing attorney advertising already exist, but the proposed changes would set tighter restrictions on the practice, said Skip Walther, a Columbia attorney and member of the Bar Board of Governors.

“Some people on the Board of Governors were concerned about the level of advertising and the effect it has on the profession,” he said.

Among the proposed changes to the rules are new definitions on what constitutes a “misleading communication.” For example, if an ad includes a testimonial from a client who won a suit, the ad would have to say that past results do not guarantee future success.

The rules would also require that most ads include a disclaimer, saying the public should not choose an attorney based solely on advertisements.

Walther said the disclaimer and other aspects of the rule changes have drawn criticism.

When the drafted rule changes were sent to attorneys statewide for feedback, Walther said, “a lot of attorneys commented negatively about the rule changes, feeling they were excessively restrictive.”

Rules that are too restrictive could also raise constitutional problems. Although states have the power to regulate advertising in order to protect clients, such regulations must be narrowly tailored to meet that goal, MU professor James Devine said.

“The regulation must be no more than is necessary to meet the legitimate state interest,” said Devine, who teaches professional responsibility at the MU law school. “The burden is on the party who wants to restrict advertising to show that the restriction is no more than necessary.”

The Missouri Bar does not have the final say on rules governing lawyer advertising. The Bar’s recommendation will be sent to the Missouri Supreme Court, which establishes rules governing court procedure and conduct.

The Missouri Bar’s action on new rules comes amid an ongoing debate about attorney advertising, with some saying the practice gives the public important information and others saying it undermines the profession.

Columbia attorney and Boone County Bar Vice President Pat Eng said he is against advertising but that his firm does so because it wants to stay competitive.

“Speaking only for myself, people shouldn’t be picking lawyers out of the phone book,” he said. “But they do, and since they do, we want to be considered.”

As an alternative to choosing a lawyer based on ads, the Missouri Bar offers an attorney referral service to recommend attorneys, Eng said.

Walther said he does not advertise.

When he began to practice law, Walther said, people who sought an attorney would rely on word-of-mouth. In most cases, good attorneys could thrive on such referrals.

But word-of-mouth has limitations, said John Lake, an attorney serving Jefferson City and Columbia and whose firm advertises on the back of one of Columbia’s phone directories.

Lake said many people in Columbia are new residents, making it harder for them to have friends who could offer advice on choosing a lawyer.

Advertising “definitely helps people find lawyers and gives them an opportunity to find out if they have a case,” he said.

Additionally, some studies have shown that lawyer advertising doesn’t harm the profession’s image. A 1995 study commissioned by the American Bar Association concluded that the public has a somewhat positive perception of attorneys and that advertising does not influence that perception.

“Instead, the findings suggest that some types of advertising could play a role in developing a more positive image of lawyers,” the report said.

Steeped in history

Disagreement about attorney advertising is not a new phenomenon.

The American legal profession finds its origins in the English Inns of Court, which would educate and admit students to the bar. According to “Lawyer Advertising at the Crossroads,” a 1995 book published by the American Bar, advertising or competing for services did not occur there.

But increased admission to the American Bar during the 19th century led many lawyers to advertise. At the time, advertising did not carry a stigma, and Springfield, Ill., lawyer Abraham Lincoln ran ads in local newspapers.

However, increased specialization within the law led the American Bar to prohibit advertising in its original ethics canons in 1908. The prohibition became a point of professional ethic because lawyers were concerned that seeking to commercially promote their services would damage the public’s perception of their work.

Since the U.S. Supreme Court ruled in 1977 that bans on advertising were unconstitutional, the practice has grown dramatically.

In a letter to the Missouri Bar opposing the rule changes, the Yellow Pages Integrated Media Association — a nationwide interest group of phone directory publishers — wrote that Yellow Pages nationwide in 2003 contained nearly 310 million references to the term “attorney,” making it the sixth most common term in the book. “Lawyer Advertising at the Crossroads” writes that lawyers spent about $419 million on Yellow Pages ads in 1992, and almost $130 million on television ads in 1993. In 1977, only $98,000 was spent on TV ads.

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