The advertising police
Lawyers do more than enough in the courtroom to embarrass themselves and sully their profession. For an example, look no further than District of Columbia Administrative Law Judge Roy Pearson, who, representing himself in a lawsuit against his neighborhood dry cleaner, is seeking more than $65 million in damages over a pair of pants lost two years ago.
The ludicrous litigation was outlined by The Washington Post’s Marc Fisher, whose column was published in the Review-Journal’s Sunday Viewpoints section. The case, which should have been dismissed or settled for a few bucks, is on its second judge and is scheduled to go to trial in June.
“I’m telling you, they need to start selling tickets down at the courthouse,” Mr. Fisher wrote.
But do judges or state bar associations do anything to rein in these kinds of abuses of our legal system? Are frivolous cases ever tossed out of court, with the offending attorneys reprimanded and ordered to pay the costs of the court and the defendant? Very rarely.
Instead, the legal powers that be wring their hands over lawyer advertising. This, professors, judges and ethicists assure us, is the biggest threat to the integrity of lawyerdom.
Local legal punch line Glen “The Heavy Hitter” Lerner has long run afoul of the Nevada Supreme Court over his flair for marketing. In one of his TV commercials, he spins like a tornado, blowing cash toward his clients. In another, he writes checks while a soccer announcer screams, “GOAL!” In others, he swings a baseball bat and brags, “One call, and that’s all.”
Mr. Lerner has made an awful lot of money over the years by making a spectacle of himself, and some of his peers aren’t happy about that. Because of his advertising, Mr. Lerner has one of the most recognizable names in Southern Nevada.
After a commission evaluated various commercials for more than a year, the Nevada Supreme Court on Thursday issued new rules governing lawyer advertising. As a result, Mr. Lerner might have to start presenting himself less like P.T. Barnum and more like Atticus Finch.
Among other regulations that will take effect Sept. 1, lawyers are now prohibited from making claims in advertisements that might give a client unjustified optimism about the outcome of a case.
And lawyers will have to submit all their advertising to the State Bar for review, either in advance of the ad’s publication or broadcast or within 15 days of its first appearance. These reviews will be conducted by committees in northern and southern Nevada that comprise lawyers and non-lawyers.
Based on the findings of these committees, the bar association will have the authority to kill commercials that are found to be misleading or inaccurate.
This is absurd.
What is misleading or inaccurate is subject to broad interpretation. The notion that a collection of citizens, acting on behalf of a quasi-government agency, can censor free speech because someone might deem it misleading flies in the face of the First Amendment. No committee, regardless of its composition, can definitively say how others might interpret a commercial.
These determinations are best left to the public at large. Consumers are more than capable of figuring out whether an advertisement is misleading.
Nevada Supreme Court Justice James Hardesty says the new rules won’t determine whether an advertisement is in bad taste. In fact, these new rules are all about taste and perception. Why else would the Supreme Court establish regulations that could prevent Mr. Lerner from ever again uttering his signature line: “One call, and that’s all”?
Considering our courts are clogged with frivolous litigation and the rolls of the state bar are spotted with unethical and incompetent attorneys, the Supreme Court has already wasted too much time on the advertising issue. If judges and lawyers are serious about cleaning up their profession, they should peel themselves away from the TV and start looking in the mirror.