Legal advertising has a standard format that is problematically recognizable. Since the flood gates were open to attorney and law firm marketing in 1977, massive amounts of money and time have been invested into soliciting clients. Though the Court’s intent in allowing such advertising was for public good, many feel as though the law and legal profession as a whole has taken a black eye from this new found ability to advertised. This essay aims to examine the current form of legal business advertising, how it was developed, and how it might successfully be implemented going forward.
Before and After Bates
Advertising by attorneys was common before 1908.[1] Even the pre-presidential Abraham Lincoln conducted something akin to “direct mail advertising.”[2] However, in 1908 the American Bar Association (“ABA”) promulgated the Canons of Professional Ethics to deal with the “abuse and overreaching solicitation” of advertising in the legal business.[3] The decree was a “flat prohibition” on advertising.[4] It would eventually spread to become law in almost every American jurisdiction.[5]
The ban would hold until 1977 when Bates v. State Bar of Arizona overturned the prohibition.[6] At issue in the case was whether an Arizona State Bar regulation restricting attorney advertisements violated the First Amendment right to free speech. Two attorneys had opened a “legal clinic” intended to provide legal services to individuals of modest income that did not qualify for government legal aid. Due to the limited and specialized nature of the practice, the Attorneys decided the venture could not remain viable if they did not advertise their services. They took out an advertisement in a local newspaper offering “legal services at very reasonable fees.”[7] Though the Attorneys acknowledged that their action violated the Bar’s restriction on advertising, they argued that the ban as a whole violated their right to free speech. Eventually, the United States Supreme Court found that the right to free speech included an attorney’s right to commercial speech and that the Arizona State Bar failed to offer any acceptable justifications for suppressing the ability of the Attorneys to market their services.
In both its immediate and long term wake, Bates has received a large amount of protest.[8] Many complain that Bates turned the law profession into a business, pushing law firms and attorneys to unbecoming solicitation tactics to attract clients.[9] The belief still stands that "[t]he most worthy and effective advertisement possible . . . is the establishment of a well-merited reputation for professional capacity and fidelity.”[10] Proponents of Bates conversely reason that the advertising of legal services allows young lawyers to more easily “acquire a share of legal business” from the entrenched firm establishments and increases the dissemination of legal services to the public.[11] Out of the hotly contested aftermath of Bates, local bar associations took it upon themselves to define the ethical boundaries in which attorneys could advertise.[12]
Legal Services Advertising in Washington
Currently, the Washington State Bar Association (WSBA) regulates attorney and legal business advertising under RPC 7.2.[13] Lawyers are allowed to advertise “through written, recorded or electronic communication, including public media.”[14] Attorney advertisements must include “the name and office address of at least one lawyer or law firm responsible for its content.”[15] Advertising is defined through WSBA commentary as “organized information campaigns.”[16] The WSBA’s advertising rules are intended to “assist the public in obtaining legal services.”[17] In a nod to Bates, the WSBA points out a “particularly acute” need to notify the public of the availability of legal services “in the case of persons of moderate means who have not made extensive use of legal services.”[18] The WSBA seems to err on the side of improving public access to legal services rather than filtering advertising that some might find tasteless or “undignified,” reasoning that further restrictions would “impede the flow of information about legal services to many sectors of the public.”[19]
As for the actual content of these permitted “organized information campaigns,” the WSBA commentary does lay out some specifics. Legal business advertisements are to include:
“information concerning a lawyer's name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.”[20]
While a lot of this information is likely taken care of in an advertisement’s fine print, many of the listed criteria are tied to the accurate portrayal of an attorney’s reputation. Foreign languages, references, and consenting regularly represented clients all demonstrate that legal business advertising should ideally be an extension of one’s already existing role in the community.
The Legal Advertising Paradigm
The form in which a legal advertisement is presented can say as much to its audience as the advertisement’s content does. In the years since Bates, a standard legal advertising form has developed, specifically in the way attorneys advertise on television. We have all seen them, sandwiched between for-profit colleges and ceramic heads with alfalfa grass hair. A pound of a gavel. A Doppler Effected ambulance. A serious, monotone voice informs us that we may be entitled to financial compensation. A non-lawyer-actor appears, offset by a law firm’s name and phone number. Seven or eight lines of small print crowd the bottom of the screen. It comes as fast as it goes, typically appearing when the clock reads between 1:00 and 4:00, a.m. or p.m. The genre has developed enough that it has even attracted parodies, such as Saul Goodman’s commercials on Breaking Bad.[21] Much like why we love justice, truth is often why we love a joke.
There is no doubt that the way in which legal businesses advertise can brand the term profit-oriented on its reputation. Commercials made to “attract a sizable increase in high-dollar personal injury cases” have, at times, transparently illuminated the dollar signs in a law firm’s intent.[22] That said it is unfair to assume that concerns about profits and economic viability did not exist between 1908 and 1977; the situation that led to Bates is proof enough of that. It is also unfair to say that profit-oriented is inherently bad, especially regarding contingency fee models where an attorney’s pay is directly linked to maximizing a victim’s judicial remedy. While attorney advertising may be an outgrowth of economic concern, and possibly a profession-wide contributor, calling legal advertising a cause of being profit-oriented is a stretch.
Standard Form and Deviation
Though the standard form of legal marketing is consistently mocked and criticized, at least when it comes to personal injury law, it remains in play because of one simple fact: it works. Lowell “The Hammer” Stanley in a recent interview about his in-your-face personal injury advertising said that he uses the style because “it works for those who it appeals to.”[23] Everyone is entitled to an attorney, including those who are persuaded by the commercials.[24] Here again we see policy from Bates; our legal systems functions best when people are represented and educated about their options. There is no condition or asterisk that limits your right to an attorney based on the type of entertainment you enjoy. As such “organized information campaigns” ought to be accessible, and correspondingly digestible, to everyone.
According to the ABA, online video is a rising form of legal advertising that is popular, social, and discoverable. That said, “[f]inding a balance that meets the standards of firms that guard their reputations and brand image carefully may be one of the most difficult hurdles in developing a video program at law firms.” Recently, there has been a string of online advertisements that have violated the established legal advertising norm, such as Jamie Casino’s super bowl commercial in which he wielded a sledge hammer in the name of his dead brother,[25] and Daniel Muessig comically portraying law violators thanking him for getting them out of trouble.[26] The commercials take everything that is serious and solidified about legal advertising and push it to the point of being ridiculous, while at the same time including some amount of sincerity on the part of the attorneys.
Borrowing a bit from the linguistic theories of Jan Mukarvosky and Roman Jakobson, language is viewed to function poetically when the form language takes is a deviation of the standard form.[27] In other words, poetry is simply talking or writing different than normal. If we spoke in rhyme all the time, it would be the standard speech form and thus not poetic.[28] In applying this idea of poetic function to our standard legal advertisement “language,” we can see why these viral advertisements have found success. The videos take the standard legal advertising form as their background and bring themselves into the foreground by violating this norm. The videos would likely not be successful without the already existing standard legal advertising paradigm to be situated upon. Thus, breaking with tradition works because there is a tradition to break in the first place.
Conclusion
Legal marketing is and will continue to be an experiment in monitoring, measuring, and fine-tuning.[29] The internet has widened both the public’s access to legal services and the reach of advertising. Currently, the Bates notion of public access over censorship continues to win. Attorneys will have to enhance their “technical know-how, creativity and time” if they want to stand out from the white noise that much of legal marketing has becoming.[30] Being relevant in both message and tone will not only keep the bills paid, but will keep clients represented.
[1] See Robert F. Boden, Five Years After Bates: Lawyer Advertising in Legal and Ethical Perspective, 65 Marquette Law Review 547 (1982).
[2] Id. at 547-48.
[3] Id. at 549.
[4] Id.
[5] Id.
[6] Bates v. Arizona State Bar, 433 U.S. 350 (1977).
[7] Id. at 354.
[8] Boden supra note 1, 554
[9] 99% Invisible, The History of the Late-Night TV Lawyer Commercial, Slate (March 27, 2014 10:30 AM), http://www.slate.com/blogs/the_eye/2014/03/27/the_history_of_the_late_night_tv_lawyer_commercial_99_invisible_by_roman.html.
[10] Gilbert Geis, White Collar Criminal (Aldine Transaction 2006).
[11] Boden supra note 1, 554
[12] Boden supra note 1, 555
[13] Wash. Rules of Prof’l Conduct R. 7.2 (2006).
[14] Wash. Rules of Prof’l Conduct R. 7.2(a) (2006). The American Bar Association has issued an official advisory opinion about attorney website content available at http://www.americanbar.org/content/dam/aba/migrated/cpr/pdfs/10_457.authcheckdam.pdf.
[15] Wash. Rules of Prof’l Conduct R. 7.2(b) (2006).
[16] Comm. 1 on Wash. Rules of Prof’l Conduct R. 7.2 (2006).
[17] Id.
[18] Id.
[19] Comm. 3 on Wash. Rules of Prof’l Conduct R. 7.2 (2006).
[20] Comm. 2 on Wash. Rules of Prof’l Conduct R. 7.2 (2006).
[21] DUI? Dealing Drugs? Better Call Saul, http://www.amc.com/shows/better-call-saul/saul-goodman-esq/ (last visited July 29, 2014).
[22] Yahoo! Finance, Alan Schill Helps Personal Injury Law Firms Attract The Most Desirable Cases (May 9, 2014 1:14 AM) http://finance.yahoo.com/news/alan-schill-helps-personal-injury-051400956.html.
[23] 99% Invisible supra note 9.
[24] 99% Invisible supra note 9.
[25] Jamie Casino 2 Minute Super Bowl Commercial – Casino’s Law, https://www.youtube.com/watch?v=jr2gdPY-88w (last visited July 29, 2014).
[26] Thanks Dan!!!! (412) 454-5582 @ThanksDanEsq, https://www.youtube.com/watch?v=5KfACTAOPa0 (last visited July 29, 2014).
[27] See Linda R. Waugh, The Poetic Function in the Theory of Roman Jakobson, Poetics Today, Vol. 2, No. 1a, at 57-82 (Autumn, 1980), available at http://www.jstor.org/stable/1772352.
[28] Additionally, languages with masculine/feminine endings, such as Spanish, actual look to the accented vowel in a word along with the ending vowel when rhyming; otherwise almost everything would be considered a rhyme.
[29] Adam L. Stock, How Lawyers are Using Video, 37 Law Practice Magazine 6 (2011), available at http://www.americanbar.org/publications/law_practice_magazine/2011/november_december/how_lawyers_are_using_video.html.
[30] Id.
