‘Low points in lawyer advertising’

John Browning - Legally Speaking

John Browning - Columnist

As anyone who’s ever watched daytime or late night television can attest, “classy” is not a word one would associate with most lawyer advertising. Whether they’re calling themselves things like “The Hammer,” riding in tanks, or promising you big money for your injuries (whether you know you’ve been injured or not), lawyers in many commercials come across as well, kind of sleazy.

Don’t get me wrong — everyone deserves access to the courthouse, and lawyers representing people on a contingency fee basis often provide the only way to level the playing field between an injured claimant and a big corporation. And courts have repeatedly ruled that lawyers’ First Amended rights permit them to advertise. Of course, each state regulates just what is and isn’t allowed in attorney advertising.

Typically, lawyers can’t create unjustified expectations about results or make misrepresentations about their abilities. Some states restrict advertising that reflects poorly on the legal profession, such as the Florida Supreme Court’s decision to discipline the lawyers who used a pit bull logo and “1-800-PIT-BULL” phone number in their advertising. Ironically, the only non-lawyer who had complained was a pit bull breeder who felt that being associated with lawyers was bad for the dogs’ image!

Despite the best efforts of bar administrators, lawyer ads that push the boundaries of bad taste continue to occur. In late July, 2009, New Jersey’s Committee on Attorney Advertising held a hearing to determine whether legal ethics lines were crossed by the placement of a lawyer’s flyer on the windshield of a rape victim’s car. The victim, known in court papers as K.D., had been sexually assaulted in December 2006 during an inspection of her federally subsidized apartment by a Newark Housing Authority employee. After K.D. reported her rape, four other female tenants came forward to testify about similar incidents, and the rapist was caught and sentenced on multiple counts. But about two months after the assault occurred, K.D. found an orange flyer on her car’s windshield from Fred Zemel’s Newark law firm touting the lawyer’s services to anyone who’d been the victim of “rape and assault in your building or apartment.”

Zemel denies deliberately targeting K.D. or even knowing where she lived or parked her car; he maintains that he had an outside service “generally circulate flyers,” and that similar flyers had been distributed the same way long before the crime.

K.D. however, maintains that no other car nearby had such a flyer on it, and felt that it was directed at her. She points out that while most news accounts of her case had identified her by her initials, one news station did disclose her full name. At issue are New Jersey Rules of Professional Conduct that require certain disclosures in any unsolicited direct contact with a prospective client, as well as rules that prohibit communicating with someone whose physical, mental, or emotional state might impair the decision to hire a lawyer. At press time, the Committee on Attorney Advertising had not yet issued a ruling.

Another example of crossing the lines of good taste, if not actual ethical boundaries is to cloak an attorney advertisement in what appears to be a news item. Pacific Northwest attorney Kirk Bernard (who reportedly lives in California, but solicits cases in Washington) maintains a blog that purports to provide news alerts about fatal accidents and catastrophic injuries. After the “headline” and a cursory description of the newsworthy incident, however, comes the sales pitch. The very next sentence, and the remainder of the “story,” consists of information on how to contact Bernard Law Group “if you are seriously injured in an accident, or someone you know is injured or possibly even killed.”

Classy!

The idea of faking a news program is not one that originated with FEMA and its infamous staged press conference; sometimes lawyers do it, too. In 2008, Hartford, Conn. law firm Shipman and Goodwin came under fire for a staged “news” program that aired on public access television. The half-hour show featured two of the firm’s partners being interviewed about a recent $12.4 million jury verdict in an eminent domain case against the town of Branford.

The “interviewer” is Duby McDowell, identified as a political analyst for a local television station, WFSB, and her “co-host” is Tanya Meck, identified as a former planning and zoning chair in West Hartford. What they don’t tell viewers is that Ms. McDowell and Ms. Meck are serving paid public relations consultants for the lawyers being interviewed, not as journalists.

As a local newspaper described the video, it has no analyst or representatives from the other side, and is taped on a set the law firm rented out for the occasion. Moreover, McDowell doesn’t disclose that the show has nothing to do with WFSB-TV, and doesn’t share with the viewing audience that she’s getting paid by Shipman and Goodwin, which is a client of her media/PR firm Duby McDowell Communications, LLC.

While the law firm takes care to point out that the video concludes with the statement “This program has been presented by Shipman and Goodwin,” even Ms. McDowell acknowledged that the video might lead an unsuspecting viewer to believe she was serving not as a paid PR person, but as a news station’s political analyst.

From faking the news to faking the sports, we finally come to the New York law firm of Belluck & Fox. The firm worked out a deal with the radio station that broadcasts New York Yankees games, making it the “official legal sponsor” of Yankees radio broadcasts. However, Belluck & Fox took things a little further, calling them the team’s official legal sponsor. They set up a website, HomeRunLegal.com, complete with photos of Yankee Stadium; a baseball bearing the firm’s name; the Yankees logo; and a clipboard “lineup” featuring firm areas of practice like “Car and Motorcycle Accident Claims” and “Construction Accidents.” After a couple of phone calls from the Yankees’ home office, the Web site was substantially revamped.

“Official legal sponsors,” eh? With all the legal trouble professional athletes get into, that might not be a bad idea.



John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at: jbrowning@gordonrees.com