by Richard Prior
Staff Writer
Atticus Finch didn’t have to advertise.
If you lived in Monroeville, Ala., during the Depression and needed a lawyer, Atticus was who you got. From mortgages to mayhem, it was one-stop lawyering.
Times have changed since the 1930s.
Far more attorneys specialize now than was common back when pecans and poultry were acceptable forms of payment. Potential clients can’t walk through any door and expect to find a maritime lawyer, for instance. Maybe he’ll be there; maybe not.
And the sheer number of attorneys has exploded. In Monroeville, the model for Maycomb in Harper Lee’s novel, there are now eight law firms. Atticus could very well be sitting out on the porch in the evening, not waiting for Judge Taylor to hand him a case, but trying to figure out how to attract new clients.
Advertising is the obvious answer. Would Atticus feel compelled — some would say “reduced” — to getting air time on television, putting his face and catchy slogan on a billboard or setting up his own Internet site?
Many of his professional descendants say he would have no choice. There are too many attorneys and too many specialties for the public to wade through, looking for just the right one. And, however subtle it may be, attorneys are in competition with their peers. Without enough business, they’re out of business.
The First Amendment does grant free speech to everyone, not everyone except attorneys. So that’s not the question. It’s how speech is used that raises hackles.
“From a lawyer’s standpoint, there is absolutely no question that advertising is Constitutional, and any lawyer has a right to do it,” said Howard Coker, of Coker, Myers, Schickel, Sorenson & Higginbotham and a past president of the Florida Bar Association. “From a personal standpoint, some of the distasteful advertising we see needs to be eliminated.
“It can be done in one of two ways: legislatively or by tightening up procedures within the Florida Bar. I favor the latter.”
Rep. David Simmons, R-Altamonte Springs, attempted to handle the matter legislatively during the last session when he introduced a bill that would impose a civil fine for attorney ads that “incite” Floridians to file lawsuits.
“I don’t know how one can ever measure that lawyer advertising actually contributes to unnecessary litigation,” said Hank Coxe, with The Bedell Firm. “How you measure that litigation has been precipitated by lawyer advertising is a far more difficult path to cross.”
Wayne Hogan was equally skeptical about the prevalence of ads that incite.
“I even heard they didn’t want people ‘incited to consult a lawyer,’” said Hogan, of Brown Terrell Hogan Ellis McClamma & Yegelwel. “If you provide information to the public about a set of circumstances, and they realize maybe that condition has caused the problem that they’re facing, it doesn’t mean a lawsuit is going to be filed.
“It means that they, like any other person, would consult a person in the field to see whether to take steps. Do real estate agents, when they advertise, incite people to buy?
“The fact that people consult a lawyer to get advice is not bad. In fact, it’s a good thing. Then they can decide if it’s a claim they want to pursue. And the lawyer can decide if he wants to pursue it.”
Simmons’ bill cleared the House Judiciary Committee and was sent to the House floor, where it was approved 104-8 on March 23. It was postponed in the Senate Judiciary Committee, however, where it lingered, untended, till the session ended.
Observers in Tallahassee felt the bill would have passed the Senate if it had been put to a vote and predicted the governor would have signed it.
In a May 1 story on the Florida Bar website, Simmons said he wanted time “to address concerns before bringing the bill back next year.”
“I am one of the strongest proponents for the legal profession there ever was in the Legislature,” Simmons was quoted as saying, “but I assure you unless attorneys get control over their own advertising, we’re going to see the future, and it’s not bright for attorneys.
“The compelling state interest is we need attorneys involved to represent people who are injured and who have their rights violated, and the way things are headed, there is going to be a significant effort to exclude attorneys from all of these processes. ...”
The bill, HB 1357, condemns advertising that “destroys personal responsibility of individuals, fosters frivolous litigation, and demeans the judiciary and the practice of law.”
Basically, the only acceptable ads would be of the “public service” variety that doesn’t solicit clients. The bill provided for penalties of $1,000 for a first offense and $10,000 for subsequent offenses.
“To a lawyer, I believe that restricting advertising creates a true internal intellectual dilemma,” said Coxe, a past president of the Jacksonville Bar Association and a member of the FBA board of governors. “Lawyers are committed to upholding the law, the Constitution. The First Amendment protects attorney advertising.
“Yet many, many attorneys are troubled by it. It creates this internal conflict between your support for the law and the fact that so many lawyers are advertising.”
According to The Florida Bar, attorneys spend more than $500 million each year for advertisements in the Yellow Pages.
An FBA survey revealed that 34 percent of attorneys in private practice have display ads in the Yellow Pages, 10 percent advertise in newspapers, 5 percent use direct mail or advertise in magazines, 4 percent advertise on the Internet and 3 percent advertise on television or radio.
The object, Hogan said, is to let the public know there are professionals available to help them with their problems, whatever they are.
“For the average person who’s out there in the community, especially a growing community like this, where many people come from elsewhere, they don’t have a longtime family lawyer,” he said. “It’s not the way it used to be in Atticus Finch’s situation, where people would go to him for one thing or another.
“These days, people generally don’t have that kind of relationship. So the average citizen needs to have a means to find out what his range of choices is.”
Easy access to information is essential if legal and social problems have a chance of being resolved, said Hogan, named the 2003 Trial Lawyer of the Year by the Florida Chapters of the American Board of Trial Advocates (FLABOTA).
“If a doctor says to the person, ‘You have a diagnosis of mesothelioma, and it’s caused by asbestos,’ that person needs to be in a position to find out who in his community handles asbestos matters.
“In another instance — and this happens very often — the lawyer very well may say, ‘Thank you for coming here, and this is what the law is. Under your circumstances, it is probably not to your benefit to pursue this claim.’ ”
Coxe suspects there may be issues beyond propriety to explain the popularity of Simmons’ bill.
“I think in reality it is definitely an anti-lawyer sentiment that triggers the thing,” he said.
“And anti-lawyer sentiment can manifest itself in any number of ways.”
He also suspects that the condition of the bottom line may help individuals and firms decide how much advertising — if any — they should do.
“I don’t know how you measure those opposed to advertising being in an economic situation where advertising is not a necessity,” said Coxe. “Is that a factor in some people’s opposition to advertising?
“I count myself fortunate that I’m not dependent on advertising to be successful in the practice of law. But, if I were dependent, would I look at advertising differently? Maybe so.”
The practice of law is supposed to be a black-and-white proposition. This is one area overflowing with gray. Even those who concede the right of lawyers to advertise often say it through clenched teeth.
“I favor any type of regulation that is designed to inform the public of the qualities of the lawyers as opposed to seeking sensationalism for the sake of getting business,” Coker said. “Most decent lawyers would agree with that.”
Grier Wells, with Akerman Senterfitt, agreed.
“From my personal standpoint, looking at it both as a lawyer and the consuming public, I just don’t like some of the lawyer advertising we see,” said Wells, also a past president of the JBA and a member of the FBA board of governors. “Wearing my hat as a lawyer, what we’re talking about is regulating speech.
“I don’t like it, but it’s very, very difficult to regulate it.
“Most of what I think presents a problem is advertising that borders on — as the House bill was designed to address — almost a solicitation: ‘I’ll file suit on your behalf, and I’ll get you all the money in the world.’ ”
That type of come-on is one of several that are specifically banned by the American Bar Association as well as the Florida Bar. Four types of communications deemed “false, misleading, deceptive or unfair” are:
• Those containing a material misrepresentation of fact or omitting a fact that would make the ad misleading.
• Those that create an unjustified expectation about results or imply that the lawyer would use illegal or unethical means to achieve a desired result.
• Those that compare one lawyer’s ability with another’s unless the comparison can be substantiated.
• Those that contain a testimonial from “satisfied customers.”
“When you boil everything away, it always becomes a matter of taste and manner of presentation,” Wells said. “There are a lot of people that say you can’t legislate taste.
“There’s lawyer advertising that comes across as being more informational than soliciting. But it has the same effect.”
Despite the overwhelming support and predicted success for Simmons’ bill, attorneys point out that prospective ads already have to be approved by the FBA’s Standing Committee on Advertising.
The ads “should encourage and support the public’s confidence in individual lawyers and the legal profession,” according to FBA guidelines.
They should avoid “inappropriately dramatic music, unseemly slogans, hawkish salespersons, premium offers, slapstick routines or outlandish settings.”
In other words, attorneys’ ads shouldn’t even remotely resemble those that are printed or aired on behalf of practically every other commercial enterprise.
“I think, to a lot of lawyers, it might be the style,” said Coxe. “They might not like it, but they know it’s permissible legally.
“I think a lot of lawyers are troubled by this dilemma. I don’t know how you regulate good taste.”