Lawyer Ads: Hucksterism Or Protected Free Speech?

WARREN BURGER, former chief justice of the United States, embodies Central Casting's image of a lawyer: He is a silver-haired man of impeccable bearing and dignity, high-minded, and dedicated to public service. If there's one thing that Mr. Burger can't abide, it's being lumped together in the public's mind with those, those hucksters!

They are the lawyers who appear in advertisements on late-night TV describing their latest million-dollar verdicts for crash victims, or whose large Yellow Pages ads pledge to ``fight for the full injury compensation you deserve,'' or whose condolence-and-solicitation letters arrive in grieving households just days after fatal accidents.

In Burger's opinion, given in speeches and op-ed columns, and that of many lawyers, tawdry advertising and solicitation practices are sullying the profession's image and compounding public distrust of attorneys. Opponents of lawyer ads and solicitation also raise ethical objections, claiming that such practices stir up excessive and even frivolous litigation. Burger has become the poster boy for incensed lawyers who are crusading to severely restrict lawyer advertising.

But critics of this viewpoint - including many lawyers and the staff of the Federal Trade Commission - contend that tight limits on lawyer advertising deprive people (especially the poor) of information about their legal rights and convenient access to legal services, and that such limits keep legal fees high by inhibiting competition. Besides, critics say, most restrictions on lawyer advertising violate the free-speech rights in the First Amendment.

For decades, lawyer advertising was uniformly prohibited by state legal-ethics codes that copied the first canon of ethics drafted by the American Bar Association in 1908. But in 1977 the United States Supreme Court, in Bates v. State Bar of Arizona, struck down bans on lawyer advertising and most other forms of legal-services marketing. Ruling that such bans violated the First Amendment, the high court implied that states could regulate only lawyer ads that are false or misleading.

In recent years, however, critics of lawyer advertising and solicitation - notably many state bar associations - have sought to reregulate marketing practices they deem harmful to the public or the profession, even if not false or misleading:

* In 1985, Iowa adopted what are probably the nation's most restrictive limits on lawyer advertising, especially in the broadcast media. The rules have virtually eliminated all TV and radio ads by lawyers in the state.

* The bar associations in Florida and Texas have tightened restrictions on lawyer ads.

* The California Trial Lawyers Association is backing a bill in the state Senate that would cut back TV and radio advertising by attorneys.

* In Massachusetts, a bar-association committee is studying lawyer advertising, and it may recommend changes in the state's ethics code to restrict ads. The state's chief justice has publicly expressed concern about lawyer ads.

RESPONDING to the turmoil in the profession, the American Bar Association (ABA) Commission on Advertising this spring held public hearings on the ``communication of legal services.'' The panel took testimony and written submissions from a wide array of people (including former Chief Justice Burger) and organizations interested in the issue.

According to William Hornsby, staff counsel to the commission, the panel is preparing a comprehensive report on its findings, which may include recommendations for changes in the ABA's Model Rules of Professional Conduct. Many state ethics codes follow the ABA model.

Critics of lawyer-marketing efforts fall generally into two camps, Mr. Hornsby says. (Interestingly, he notes, very few of the critics are consumers claiming to have been misled.) One group opposes such marketing for economic reasons: It includes insurance companies that are sued by accident victims who retain advertising lawyers and competitors who lose business to such lawyers. Disguising their motives, such critics often couch objections in terms of consumer protection, Hornsby says.

The other critics are lawyers who, like Burger, express concern that attorney advertising and solicitation contribute to the public image of lawyers as ``ambulance chasers'' and that they undermine respect for the entire legal system.

But defenders of lawyer-marketing - at least in its less tacky forms - counter that the ``image'' school of critics is trying to fix the wrong problem. ``People don't think ill of attorneys because some lawyers advertise, but because they have had bad experiences with lawyers who do a lousy job, or who don't return calls, or who gouge their clients,'' says Kelly Largey, marketing director for Fish & Richardson, a Boston law firm, and past president of the National Law Firm Marketing Association. ``The bar shouldn't focus on how lawyers get business, but rather how well they do the work.''

Still, many observers agree that ``some ads cross the bad-taste line,'' in the words of Cal Darrow, vice president and general counsel at R. W. Lynch, a marketing and advertising company in San Ramon, Calif., that specializes in lawyer marketing, including producing TV ads for attorneys. ``We're as pleased as anyone to see bad or unethical ads taken off the air, because they give our business a bad name,'' Mr. Darrow says.

The First Amendment presents a big obstacle to those who would distinguish unacceptable lawyer ads from acceptable ones, however. In a series of cases after its 1977 ruling, the Supreme Court has almost always struck down advertising regulations and has required regulators to demonstrate a strong state interest in restricting ads. In a case involving an ad that pictured a birth-control device, the high court ruled that preserving the dignity of the bar by banning ads that are in bad taste is not a sufficient interest to overcome advertisers' free-speech rights.