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Define That Term #189

New York Lawyer Advertising Rules and TV, Part 3

This is the last installment of the analysis of lawyer television ads from other jurisdictions and the practical application of the new ban on  many nicknames, monikers, mottoes or trade names that is found in 1200.6(c)(7) of the newly promulgated New York lawyer advertising rules.  This provision states that an advertisement shall not "utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter."

The previous posts can be found here.

In this final post, let's look at two more lawyer tv ads from other jurisdictions and see how these ads would fare under the new rules if broadcast in New York.

First, an ad from a Missouri law firm:

In this ad, the lawyer states:  "My law firm...has collected a third of a billion dollars for injured people.  Not million--billion.  See?  I fix problems."

Does this claim violate the above rule?  I think it falls under the infamous "gray area" in the rules.  Depending on your perspective, that phrase might imply an ability to obtain results in a matter.   But, then again, it might not.  What do you think?

(View the second video after the jump.)

Next, an ad out of Texas:

This lawyer states: "My name is Timothy Raub, and I can help you." 

I don't think that this statement violates the above rule.  I mean, after all, isn't that what lawyers are supposed to do--help people?

Another possible issue raised by this video is whether the use of the lawyer's family in the video violates 1200.6, which provides in relevant part, that "An advertisement shall not: ... (c)[5] rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of the most appropriate counsel including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence."  Eric Turkewitz examined this issue in this post at the New York Personal Injury Law Blog

I'm inclined to think that in this particular commercial, the use of Mr. Raub's family does not violate the rule.  The context in which he uses his family in the commercial is arguably relevant to legal competence since he's asserting that he's a better choice because he and his family are local.

What do you think?


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Scott Greenfield

While the latest installment of NY's effort to control lawyer advertising is, without a doubt, a less than stellar effort in clarity, I feel compelled to remind those youngin's in the legal profession about the days when lawyers couldn't advertise at all, and why.

Law was once a profession. It had its definite downside, lacking a firm connection to the needs and attitudes of society and surviving with a frock and wig to keep us above the dirty masses. But we viewed ourselves with a measure of dignity and responsibility. We weere ladies and gentlemen to each other, and we were treated with respect by society. There were always lawyers of dubious skill and ethics, but they were the exception rather than the norm.

As more and more lawyers were pushed out of law schools, and needed to make money to pay those loans, law became a business. And lawyers were no different than any other businesspeople. As quickly as possible, lawyers got down in the gutter with every others skel looking to suck a dollar out of an unsuspecting mark. We refuse to admit it, even today, but the truth is obvious to everyone but lawyers.

I've surveyed the internet for those who purport to do what I do, criminal defense, and are advertising their services. Most of the lawyer websites I've found are from people I've never heard of. After 25 years, and involvement in criminal bar associations, I've come to know at least the names of most people who have any real connection to criminal law. I've never heard of these lawyers.

But according to their websites, they are the best in the world. The most well known, well respected criminal lawyers in New York. Come again?

Then there's the bunch that I do know. For the most part, I know them from they're requests on the NYSACDL listserve asking if anybody can give them an omnibus motion. Again, experts all, per their websites.

And my personal favorite, the lawyers who advertise that they are a former ADA, thus demonstrating that they have connections to trade for clients' freedom or skills honed in the trenches of prosecution. This bit of puffery always gives me a chuckle.

So what's wrong with a bunch of young or quasi-competent criminal defense lawyers trying to make a buck? Two things: First, they are misleading the public by claiming qualifications they do not possess. In the old days, we earned our clients by our work, not our advertising claims. Consequently, young lawyers would spend their time honing their skills and breadth of knowledge in the hope that their reputation would bring in clients. They were proud of their work rather than their income. Perfect the former and the latter would follow. What a quaint notion.

Second, truly competent lawyers are being displaced by hyperbolic lawyers. I hate to write this line, but I am seeing it happen before my eyes. As all lawyers know, clients rarely have a clue as to what constitutes competent, or excellent, legal representation. They thus rely on their lawyer informing them of how good their case is going, and are almost entirely outcome oriented.

But the lawyers who tend to rely on advertising also tend to charge negligible fees compared to the lawyers who rely on their efforts. I hear of lawyers taking A-1 felonies for $2500. I'm sure that lawyer is prepping for a month long trial.

And so puffery and hyperbole and, dare I say it, deception have replaced competency, truthfulness and dignity as the key marketing tools of the criminal defense bar. And so the cost of a criminal defense, now redefined as a quickie plea or the dreaded cooperation, is a fraction of what it costs to mount a real defense.

Criminal defense lawyers have cannabalized their own in their efforts to gain a quick buck. There is no place left in the system for lawyers who put quality above quantity. And despite our ethical responsibility to the contrary, criminal defense lawyers have deliberately lead the public down the path by putting their own interests above those of the clients. The primary means of doing so? Advertising.

The nightmare scenario of lawyer advertising has come to pass. We, as a group, are indistinguishable from fishmongers. And I, for one, do not believe that we will be able to change it back, as I feel quite certain that the lawyers who now reside in the gutter, the vast majority of criminal defense lawyers (for one reason or another), are incapable of the introspection necessary to apprehend the impact of their methods and, even if they did, would simply not care.

As an attorney, I have resisted advertising my services for the past 25 years. I am deeply saddened when I think of the many exceptional criminal defense lawyers who refuse to compete with those soliciting felonies for pennies, and are left with too few clients willing to pay for their services. Pretty soon, there will be no one left for the bottom feeders to ask for an omnibus motion. So then they will just change the name in the caption and crank it out of the their computer. Is this what Gideon was all about?


Scott--thanks for the comment and I appreciate your thoughtful duscussion of this issue. You raise a number of good points, and much of what you say is true.

That being said, I don't think that advertising alone is responsible for many of the issues you discuss. I think that there are a number of factors at play, of which advertising is one, including: the increase in the number of lawyers, the increase in population, the increased complexity of society, the compuer age, and the changing economics of the law, to name a few.

And, as an aside, I certainly hope that you're not calling me "youngin." While I may be younger than you, I graduated from law school in 1995. That's a good 12 years ago. That's nothin' to sneeze at. At the point when you'd been admitted to practice for over 11 years, did you feel like a "newbie"? I doubt it, but I could be wrong;)

Scott Greenfield

Hi Nicole. I wasn't thinking of you at all when I wrote of "youngins", though it appears that you're a bit sensitive about it? In any event, when I was 11 years in, I most assuredly didn't feel like a newbie, though I still continued to learn quite a bit since then, and it hasn't stopped yet.

My "youngins" reference was to all those lovely young lawyers, fresh out of LAS and the various DAs offices, with their newly painted virtual shingles hanging out. Far more techno-savvy than an old guy like me, and far easier to deal with no doubt, as they hungrily court clients.

Of course there are many factors at play for the fall of the criminal defense lawyer from grace. But few manifest the problem as much as advertising, where lawyers are now empowered to speak highly of themselves for the greater good of their financial security.

Having spent the entirety of my career in the great marketplace of New York City, where there are more lawyers per square foot than anywhere else on earth, I have watched the demise year after year. I have mentored a handful of these fellows, and watched as the went from former ADA geniuses (said with tongue in cheek) to yeomen defense lawyers to competent litigators. While they were all fine human beings, they did not come to me with the best of skills. Am I to suppose that these "youngins", the only ones I have close enough to truly know, are the only ones coming into the private marketplace lacking the skills to meet the most basic needs of a defendant?

But I have other expriences to bolster my theory. I have often been involved in multidefendant cases, with co-counsel more likely to cut my throat than the prosecutor? Have I simply been so horribly unfortunate to always be joined with incompetents?

Yet to read the websites of these "youngins", you would think that each of them are the next coming of the 3 Jerrys. If you were to remove the name of some heretofore utterly unknown, undistinguished novice and replace it with Shargel, the balance of the website would likely fit its new puffer to a "T".

So how does one distinguish the puffery of the unknown "youngin" criminal defense lawyer from the accuracy of the truly excellent criminal defense lawyer? Of course, without knowing more, it's impossible. And so the playing field is leveled. Who wins?

By the way, if you think I'm down on advertising, you should see the testimony I gave to the Feerick Commission about judicial elections.

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