lawyerisms

When I think of lawyers, I remember I do not know any personally, but I have seen them played on TV. One of my favorite shows is Community. Jeff Winger, played by Joel McHale, is a lawyer. His motto: “I discovered at a very early age that if I talked long enough I could make anything wrong or right. So either I’m God, or truth is relative. In either case BOOYAH” (“Winger Speeches”)! In his first speech, Winger exhibits his skills to diplomatically end conflict among members of his study group.

“ALRIGHT EVERYBODY!!! I want to say something, sit down.”— Jeff

“You don’t have to yell, I don’t appreciate your tone.”— Shirley

“You know what makes humans different from other animals?”— Jeff

“Feet.”— Troy

“No, come on bears have feet”— Pierce

“We are the only species on Earth that observe “Shark Week”. Sharks don’t even observe “Shark Week” but we do. For the same reason I can pick up this pencil, tell you its name is Steve and go like this (breaks pencil), and part of you dies just a little bit on the inside, because people can connect with anything. We can sympathize with a pencil, we can forgive a shark, and we can give Ben Affleck an Academy Award for Screenwriting.”— Jeff

“Big mistake.”— Pierce (“Winger Speeches”)

               When I think of lawyers, I don’t think of anyone in particular, no one real, anyway, but rather an impression of one I have seen on TV, something that runs like a little loop on repeat, something that always plays itself out time and time again as a reminder of that universal truth that reveals something bigger than what a TV show could do. A lawyer’s talent is a professional manipulation of words to create meaningful outcomes for the purpose of winning court cases and earning money. According to Forbes magazine, the best way for a lawyer to do well is to earn money through four strategies:

  1. Become an industry thought leader. If you want to have a very substantial and profitable career as a lawyer you will probably need to create a meaningful pipeline of new engagements.
  2. Strategically network with key referral sources. As part of becoming an industry thought leader, you’re communicating your expertise to existing and potential referral sources.
  3. Proactively manage existing relationships. Because of the characteristics of legal services coupled with your desire to be paid (and paid well), it’s wise to make the effort to adroitly manage client relationships.
  4. Master Millionaire Intelligence. For example, by employing the negotiation strategies of Millionaire Intelligence, you can be referred to clients on a consistent basis from other types of professionals without having to send them clients.
  5. For most lawyers the way to earn substantial monies is by being a rainmaker. Bringing in business usually trumps everything else when it comes time to set salaries and collect bonuses. By skillfully applying these four approaches, you can indeed crate a steady stream of highly satisfied clients (and a great deal of money). (Russ and Prince)

The lawyer’s ethics code is in direct conflict with his main goal. Making money is not an ethical guideline. When it comes to a man’s livelihood, survival, success, and greed are lines that have blurred to mean the same thing. “You want to earn as much as possible while maintaining the highest ethical standards” reads more like: make it obvious to no one that you’re trying to make as much money as you possibly can; just pretend like you’re asleep (Russ and Prince). Moreover, the lawyer’s creed must fall in line with strict regulations imposed by the Supreme Court. How does one obey the law and still make money? The rules have been bared out in court as sidelined efforts of corruption. Historically, the high court has enforced guidelines after the fact as the real players make money any way they know how: with flagrant disregard of or while trying to rewrite the rules.

The purpose of legal advertising is to maintain profitability in the legal profession. The foundation of success in any business is having a steady stream of clients who will buy a product.  Same goes for lawyers, who need plaintiffs for whom they can make a case and defend in court. The Supreme Court’s ruling that commercial speech is protected under the First Amendment allows lawyers to publish TV ads for the purpose of attracting interest.

The consumption of lawyer ads is as simple as turning off the television, and yet there is no question television is a powerful medium.

In a decision upholding rules requiring television advertising for legal services to be predominantly informational, the Supreme Court of New Jersey stated, “As the record before us and the general literature abundantly prove, the emotional impact of television advertising, in its ability to persuade subliminally, through symbols, music, drama, authority figures — the entire host of emotive non-rational techniques — far exceeds that of the print media and radio.” (“Lawyer Advertising”)

Nevertheless, television advertising is still within the control of the consumer. In this respect, the Supreme Court analysis set out in the Shapero case which distinguishes direct, targeted mail from in-person solicitation, seems applicable to television. The threat of overreaching inherent in face-to-face solicitation is not present when the consumer may avoid the message by merely averting his or her attention. (“Lawyer Advertising”)

We may change the channel, try and look away, and yet life is funny.  There is a need for government intervention when legal ads are in direct conflict with current laws, including the protections of commercial speech by the First Amendment, except in cases where advertising does something other than solicit basic services. For example, government intervention has been helpful in cases of story-telling, inflated promises for large payouts, or downright ridiculousness.

For instance, one Syracuse, New York lawyer had to go to federal court to protect his constitutional right to be ridiculous. Greg Beck of Public Citizen said, “We represented a, a firm who had a variety of ads that were supposed to be funny and entertaining, including ads that sort of made the lawyers look like they were giants stomping around the city of Syracuse and, for example, advising space aliens on personal injury claims.”

Bob Garfield said, “Sounds like a Japanese movie from 1962.”

“They were kind of funny,” Beck said. “They were silly. The bar does not like silliness, though. And it made clear that silly kind of ads are, are the source of ads that the rule was supposed to prohibit.” (Garfield)

The Boston-based James Sokolove is a lawyer who began publishing ads through print media and later in television. His commercials initially drew disdain by peers, but eventually generated a billion dollar profit (Garfield). Sokolove serves as a successful business model that generates millions for large conglomerates (Garfield). Advertisers such as The Relion Group use an independent role of actors to represent lawyers in commercials and later sell the referrals to off-camera litigators (Garfield). The Relion Group, a subsidiary of Lead Generation Technologies, funded by the Carlyle Group, doesn’t itself employ any lawyers (Garfield). The risk of damaging a lawyer’s reputation by appearing in an ad is too great. It would make him seem greedy, opportunistic, and turn the upper lip of potential clients.

In 1977, the profession experienced a seismic change in the genesis of lawyer advertising. Just one year after the Supreme Court established that the First Amendment protected commercial speech, state regulation of attorney advertising received national scrutiny in the Court’s landmark decision in Bates v. State Bar of Arizona. In short, the Court held that the First Amendment protected truthful advertising for routine legal services. In ruling that advertising by attorneys was a form of commercial speech protected by the First Amendment, the Court issued a clear caveat: it did not hold that advertising may not be regulated in any manner. In fact, the court delineated some of the permissible limitations on advertising: advertising that is false, deceptive, or misleading is subject to prior restraint. (Hyland)

What Bates v. Arizona did not do was maintain regulation on other forms of lawyer solicitation. Shortly after Bates, an ABA Journal-sponsored law poll reported more lawyers were inclined to solicit cases than were likely to advertise. The issue, however, was decided the next year by companion cases In re Primus, 436 U.S. 412 (1978) and Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). The Court held that in-person solicitation for pecuniary gain was subject to regulation as an important state interest. The “potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured or distressed person.” (“Lawyer Advertising”)

Legal solicitation can come from seemingly out of the blue, and it’s no surprise they often go unnoticed by disciplinary boards. “After the horrific crash of a Northwest airplane in Detroit, a man posing as a priest talked to the families of victims at the crash site. The “priest” also handed out the business card of a Florida attorney” (Hyland). Where some courts have determined this behavior to invade privacy and cause harm to victims, there are acts that slip past regulation.

McHenry, an attorney who sent letters to prospective personal injury victims, sued the Florida state bar for its decision that prohibited attorneys from soliciting personal injury and wrongful death clients “unless the accident or disaster occurred more than thirty days prior to the mailing of the communication” (Hyland).  The thirty-day ban on legal advertising directed at victims of recent accidents or injury protected victims of recent personal injury or death from invasion of privacy. The court found that the emotional state inhibits their ability to “evaluate direct-mail advertising from an attorney” (Hyland). “The Eleventh Circuit concluded, however, that neither interest was substantial enough to justify the ban” (Hyland).

Lawyers can mislead and use the system to their benefit, especially when using legal speak to mislead potential clients. In the case of Zauderer v. Disciplinary Counsel, lawyers were advertising that plaintiffs would be refunded all legal fees if there was no recovery (“Zauderer”). The Court stated that laymen would not be aware of the distinctions between “fees” and “costs” and could easily conclude that there would be no financial obligation (“Zauderer”). The Court concluded that the “assumption that substantial numbers of potential clients would be so misled is hardly a speculative one” (“Zauderer”).  Lawyers actively mislead potential clients by using legal jargon; their potential victims require protection by regulation.

Sometimes, if I think of laws as chains, there is a better case for it. In defiance of chains, some people keep trying to break free. In the case of lawyers, they can simply make money with inherent disregard of the chains. Abraham Lincoln, in his famous advice to the young man aspiring to the bar said that he should resolve to be an honest lawyer, and that if he could not do that, he should resolve to be honest and not to be a lawyer (Basler).  Perhaps criminal behavior is more universal than I first thought.

In an age where the law can prevent and enable lawyers from the success-money-greed paradigm, the lawyer must continue. He must figure out what he will do to survive. The law, as its edge turns, may hinder or help him. As he fights on, the cycle of the law is unending. This world curls like it would from the edge of a hamster wheel, the same as the edge of the Earth, only from it he can always see the edge of the horizon coming up quicker with each step. The decaying orbit of planets circles farther or closer away from the dream, the promise, the faint hope. The little guy keeps running on, not realizing that it’s never ending, a constant, daily struggle to be free.

Related articles:

https://vantagelegalmarketing.wordpress.com/2015/01/18/the-high-wire-that-is-legal-advertising/

https://wordpress.com/read/post/id/13337642/101

https://wordpress.com/read/post/id/64796094/34

https://wordpress.com/read/post/id/64796094/14

References

Basler, Roy P., et al. “Abraham Lincoln’s Notes for a Law Lecture.” Abraham Lincoln Online. Abraham Lincoln Online, 2015. Web. 8 February 2015. http://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm.

Garfield, Bob. “The Upside of Legal Advertising.” Onthemedia.org. WNYC, 16 September 2011. Web. 26 January 2015. http://www.onthemedia.org/story/159134-upside-legal-advertising/transcript/.

Hyland Jr., William G. “Attorney advertising and the decline of the legal Profession.” Journal of the Legal Profession. 35.1 (2011): 339-383. Print.

“Lawyer Advertising and Solicitation Chapter from Lawyer Advertising at the Crossroads.” American Bar. American Bar Association, 2015. Web. 8 February 2015. http://www.americanbar.org/groups/professional_responsibility/resources/professionalism/crossroads.html.

Neville, Alan. “Community Season 1.flv.” Online video clip. YouTube. YouTube, 16 March 2012. Web. 8 February 2015. https://www.youtube.com/watch?v=6kyG0hV6H7Y.

Prince, Russ Alan and Rogers, Bruce. “How Lawyers Can Dramatically Boost their Incomes.” Forbes.com. Forbes. Web, 14 September 2012. Web 8 February 2015. http://www.forbes.com/sites/russprince/2012/09/14/how-lawyers-can-dramatically-boost-their-incomes/.

“Winger Speeches.”  Wikia. WikiaTV, n.d. Web. 8 February 2015. http://community-sitcom.wikia.com/wiki/Winger_speeches.

“Zauderer v. Disciplinary Counsel.” Justia. Justia, 2015. Web. 8 February 2015.https://supreme.justia.com/cases/federal/us/471/626/.