COMMENT: (received 8-8-08) |
| COMMENT: (received 8-8-08) Rule 4-7.2(j) I do not think this should be included. |
| COMMENT: (received 8-8-08) I believe the proposed rule changes regarding lawyer advertisements represent too much oversight. The current rules are adequate enough to protect the public. |
COMMENT: (received 8-8-08) |
| COMMENT: (received 8-8-08) All lawyer advertising should be outlawed. |
| COMMENT: (received 8-8-08) Re: Changes to Rule 4-7.3 Why would the Disciplinary Counsel want all that paperwork? Surely they have better uses for their mailroom and filing cabinets. The information about how to contact the DC implies that there is something wrong with the very advertising the Supreme Court has approved. These are very similar to proposals last year that the Court rejected. |
| COMMENT: (received 8-8-08) The work of this committe has been outstanding, Thankyou for all your hard work and dedication to the integrity or our profession. I support the committe's recomendation in it's entirety. |
| COMMENT: (received 8-8-08) With respect to subsection 10 regarding direct mail advertising, the requirement of simultaneously submitting an affidavit (for each piece of mail?, each mailing?) sounds like an 'overly burdensome restriction on free speech'. The rules of professional conduct regarding advertising already address truthfulness, record-keeping, etc. All attorneys that use direct mail advertising that I am aware of (and yes, I use direct mail advertising in my practice) get their information off of Case.net. Best Regards. |
| COMMENT: (received 8-8-08) In my opinion, based upon conversations with numerous friends, attorneys and non-attorneys, television and radio advertising by lawyers has damaged the reputaion of all attorneys. Please find a way to put some reasonable restraints on attorney's advertising that will require them to reflect dignity, rather than draw scorn from the general public. I cannot believe the members of the Supreme Court intended to clear the way for what, for many years, had been known as ambulance chasing. It is disgusting. |
| COMMENT: (received 8-8-08) Recently it was brought to my attention that after a serious automobile accident on Highway 40/270 that occurred a month or so ago, that several attorneys and/or representatives of attorneys appeared at the hospital to solicit representation of one or more injured victims. I also have a client, whose late ex-husband was injured in a parachute accident two or more years ago, who complained that a lawyer from Kansas City appeared in his hospital room to solicit his claim. In my opinion a rule directed to this type of conduct needs to be addressed with severe consequences for violation. Some lawyers have become so aggressive that the ethical dilemma eludes them, or they simply have no ethics. I would like to see a rule barring contact by an attorney and by any employees and/or agents of the attorney with an injured victim, an injured victim's family members or those present at a hospital, care facility, funeral home or at the accident scene itself, unless solicited to the facility or scene by the victim or his/her direct family members on behalf of the victim. Violation of this Rule should be severe, for example a 6 month suspension of the attorney's law license and forfeiture of the fee to the client. If this type of conduct is allowed to continue we deserve to be called ambulance chasers. I am not sure about other members of the Bar, but this kind of conduct sickens me. It belongs (or has already been the subject of) a John Grisham novel. I know that there is some language directed to this conduct, but we need direct language and to the point as some folks just don't get it. |
| COMMENT: (received 8-8-08) It seems to me that the added language "or anything of value" and "for professional publicity" in Rule 4-7.2(e) may be too broad. If a publication requests an article or an interview, certainly that story may be of value to the reporter or publication (whether because the headline creates sales of the publication or whether the reporter is in need for a story to fill space or otherwise). And the lawyer is likely to receive publicity as a result of being the author of, quoted in, or the subject of, the story (even if there is no direct solicitation of legal services). |
| COMMENT: (received 8-8-08) It would appear to me to be helpful for the bar to make clear whether the advertising rules also apply to blogs. |
| COMMENT: (received 8-8-08) I suggest a rule as restritive as you feel constitutionaly poaaible. Advertising cheapens the profession more than any activity short of barratry. |
| COMMENT: (received 8-9-08) Can we please, once and for all, ban attorney advertising? We can delude ourselves with esoteric debates about free speech, but the reality is that every time one of our own barges into someone's living room with a ridiculous TV advertisement, the viewing public equates our entire profession with the used car salesmen who do the same. |
| COMMENT: (received 8-9-08) I think it is fantastic that the Bar is finally addressing this matter. Lawyer advertising of the type that has been employed for some time now does more to decrease the perception that we are professionals than to truly inform the public. I would suggest that this admirable action on behalf of the Bar and the committee be made the subject of a public service announcement so that the public is aware of our self-governance and put on notice to be on the lookout for violations (which, unfortunately, I expect will continue at some level). For too long have we permitted a minority of lawyers to paint the profession as a business rather a service profession, a money-making proposition rather than one dedicated first and foremost to being of service to the public. Thank you very much for your efforts and uncompensated time in rendering this service to Missouri attorneys. |
| COMMENT: (received 8-9-08) I previously considered advertising in Missouri. Not any more. When one combines the effects of tort reform and the "nanny state" requirements that are a part of these proposed advertising rule changes, it seems that Missouri government and the Missouri Bar have joined together to deny Missouri citizens any rights whatsoever. The legislature has taken away the right to a meaningful resolution on eggregious cases. Now, the Missouri Bar through these proposed advertising rule changes, wants to make it so onerous for attorneys to advise Missouri citizens of the few rights they have left. What's next? Am I going to have to put a disclaimer on my business cards? |
| COMMENT: (received 8-9-08) I support the revisions but do not believe they go far enough. There is so much scurrilous and potentially misleading advertising by lawyers today that the image of the profession continues to fall to dusmal levels with the public. No wonder there are so many crude and negative lawyer jokes! The Brown & Crouppen television ads, for example, illustrate some of the worst advetising. "I fix problems." Is that permissible under the Rules? Also, the "Super Lawyer" claims are potentially misleading. No broad survey of the members of the Bar is done. The so-called ratings are compiled by magazines or newspapers that only receive ratings or comments from lawyers who are subscribers or readers of those publications, not the general bar. So many of these ratings are, in effect, "receiprocal" by lawyers who know the ones they rank highly will give them similar ratings. Isn't this something that should be disclosed when lawyers or firms tout such "rankings" in their ads? The profession, and the public, in my estimation, were far better served when there was no other "advertising" than Martindale-Hubbell. Bar Association and Yellow Pages listings that only contained basic information about the lawyers and firms and no self-promoting claims. |
| COMMENT: (received 8-11-08) I can see what advertisements these new rules would prohibit, but am concerned that other advertisements would fall within the scope of the prohibitions. Is it possible to specify type font size, rather than "1/3 of the other type used" or similar designation? And with so much specificity, there should be a mechanism for print ads to be approved as not misleading, as well as media ads. |
| COMMENT: (received 8-11-08) We appreciate that you have opened a comments period that will run until September 1, 2008 to offer feedback on the newly proposed changes to the rules regarding lawyer advertising. We expect that you will receive a fair share of comments. One concern that we always have is that the membership at large who don't advertise may not fully appreciate the unintended consequences of proposed changes. In the interest of providing the membership with as much information as possible to help them offer an informed opinion, we would like to make a formal request that all of the comments received be published to membership at large for their inspection. If confidentiality is an issue, the names of individuals may be redacted. For organizations submitting comments, confidentiality will not be an issue. We may not all agree on the status of lawyer advertising in Missouri, but certainly we can all agree that the more information our membership has, the better decisions we can all make. |
| COMMENT: (received 8-13-08) I have reviewed this proposed changes and I am against them. |
| COMMENT: (received 8-13-08) I am a personal injury paralegal and I am completely against the changes. I have several clients that have been seriously injured in accidents and they may not have even been able to get a settlement if it werent for seeing an advertisement and calling an attorney. Sometimes a client is unable to even find insurance if it isn't listed on the police report and so they give up and they get stuck paying huge medical bills themselves and sometimes even lose thier jobs from being unable to work due to their injuries. I think that putting restrictions on attorney advertisement would be a huge inconvenience to those that are truly in need of legal help. |
| COMMENT: (received 8-13-08) It is my understanding that there has not been public complaints. If that is the case, who is driving these changes? Is it lawyers that do not advertise? That is just sour grapes. I don't think it is worth it to use time and resources on an issue that isn't that important. Will these changes put Missouri lawyers at a competitive disadvantage compared to lawyers from neighboring states? Why would we do that? If it is in the name of protecting the public, where is the public outcry? Let's focus on getting the judicial system in better shape. Just my opinion, but many people I know share the same thoughts. |
| COMMENT: (received 8-13-08) I have reviewed the proposed changes and I do not agree. I had an experience of legal malpractice and feared aquiring another attorney. I wanted to find an attorney that was well known and in the public eye so this would not happen again. If it were not for advertising, I don't know that I would have been able to acheive this. |
| COMMENT: (received 8-13-08) I am a product liability litigation paralegal at a firm that utilizes television commercials to inform the general public about dangerous pharmaceutical products that may be recalled and/or known to cause serious adverse health effects. I work with our clients directly that have contacted our firm as a result of seeing one of our television commercials. These individuals call our firm because they were notified that a product they are taking or have taken is potentially harmful to them. Some have not been warned by their doctors, some have not read about recent studies on the drug, they have not been otherwise informed of a possibly dangerous product they are taking. Therefore I believe my firm is doing these individuals a great service by keeping them informed of recent studies and recalls. I personally have never received any complaints about the commercials. Our firm is also informing viewers that the time in which they have to file a claim may be limited, some viewers are not aware of this. The commercials are informative, thought provoking, and empowering and are conducted in a thoroughly professional manner and are in no way misleading. The changes proposed seem to be too strict and are overly burdensome to television advertising law firms. I don't see any significant benefit to television audiences to making the proposed changes. I do anticipate that if these new restrictions are enforced, my company will have to create new commercials at great expense to us and will not be allowed to create and present commercials that are as effective as the current ones in communicating helpful information to viewers. I am a single woman, supporting myself with my full-time position at Brown & Crouppen Law Firm as a Product Liability Litigation Paralegal. Because Brown & Crouppen is able to advertise as we are now, we are able to represent individuals who may not have otherwise been aware of a recalled or defective product, and one of the effects of that is that we can represent the quantity of claims to support our business. Without the ability to represent the claims that come in to our office as a result of our television commercials, I don’t know that we would have enough business to support employees like myself. Thank you for your time in reading this commentary on the proposed restrictions on advertisements of law firms. I hope that you will consider the impact of the proposed restrictions on a law firm such as the one I work for, and the individuals that I help on a daily basis as a direct result of our current television advertisements. |
| COMMENT: (received 8-13-08) I have reviewed the proposed changes and I am totally against them. Not a single person is being harmed because law firms advertise. I feel it is one of the more imperative ways that the public learns about attorney's and the rights that they have available to them, that they may have otherwise not known about. |
| COMMENT: (received 8-13-08) I think applying further restrictions to legal advertising would be a great disservice to the general public. Many citizens are unaware of their legal rights and options until an ad is presented to them. When a defective and/or recalled medication, product, etc. has negative repercussions many consumers of these products would have no way of knowing without legal advertisements. For example, if you were taking VIOXX from 1999 through 2003 and subsequently suffered a heart attack in 2003, you may never be told that the drug was recalled for causing heart attacks in 2004. If you had stopped taking VIOXX in 2003, your doctor may never mention the recall to you because you had been off of the defective drug for a year! The only way you might make the correlation between your VIOXX usage and your heart attack could be the legal advertisements for the suit against Merck. Wouldn't you prefer to have this information presented to you rather than restricted? American citizens, as consumers, have the civil right to know all of the information about the products they are consuming, and all producers, vendors, and distributors of these products have the civil obligation to disclaim this information! Legal advertising is not creating any of America's problems, quite the opposite. Advertising legal services is helping American's solve their problems within the limits of the government rather than taking action into their own hands. Justice is a service rendered and enforced by legal entities, and a right protected and guaranteed by the American Constitution. I have yet to hear someone complaining that they would prefer to not know their legal rights or what options they have should they need them. The thought of this being a possibility is ridiculous to me! Advertising legal services is not only protected by the freedom of speech "mentioned" in the American Constitution, but it is also a great service to the general public. |
| COMMENT: (received 8-13-08) Since the late 70’s when I chose my divorce lawyer off the back of the Yellow Pages phone book. I have been looking to advertising to help me choose my eye doctor, dentist’s and other professionals to help me get my needs met. I believe most people want to go to someone they know are referred to rather than pick someone blindly out of the phone book. Seeing a familiar face in action on television is the next best thing. After all ad·ver·tis·ing is 1. the act or practice of calling public attention to one's product, service, need, etc., I am a legal assistant in a mass tort department of a local law firm. I speak with hundreds of people every month concerning their legal needs. I do intake calls on recalled drugs. Often, callers thank me for our advertising explaining they had serious health issues that they felt started after using a prescription drug/implant. They mentioned their frustration in going to their physician and or pharmacy complaining of symptoms and their belief it was the medication. They were left thinking they were “crazy”, until our advertisement stated the very problems they were experiencing are related to the drug they were taking. Finally, something supporting their belief the drug was causing them injury. I do not believe that anyone literally thinks that by stating we are the good guys that makes the defense counsel the bad guys. By the nature they are the bad guys because the are in opposition to their needs anyway. A caller has never been disgruntled because I have set up appointments in our satellite offices. They were happy that they did not have to make the long ride downtown to our main office to do their business. They appreciated the convenience. Just this morning, I had another unsolicited comment from a client. She remarked how encouraged and comforted she felt every time she saw our attorneys on the air stating they were fighting to get her claim settled. In the seven years I have been taking these calls I have never had anyone complain about our firm’s advertising. On the contrary if mentioned it has always been positive statements about how they felt they had been guided and helped. |
| COMMENT: (received 8-13-08) Dear Sir or Madam: The public is being helped by the advertising not harmed. There have been no complaints by the public at all but especially none since the last round of sweeping changes two years ago. The changes are unduly burdensome because they require an enormous amount of filing with the Bar at a huge financial expense. |
| COMMENT: (received 8-14-08) I have thoroughly reviewed the proposed changes and am totally against them. |
| COMMENT: (received 8-14-08) I disagree with the proposed changes. Just like anything else that's advertised, it helps the consumer to make a wise choice. If the potential client chooses to follow up with the law office that's advertising, they can then decide to hire them or not. I think the restrictions that are in place right now are sufficent enough to protect the consumer. |
| COMMENT: (received 8-14-08) These are positive changes to the Rules and should be adopted. Much of the lawyer advertising, especially the TV adds, misleads the public and is frankly embarassing to those of us who consider ouselves professionals. Some of it is worse than the hawking at carnivals. Anything that can be done to control this trend should be done. Thank you. |
| COMMENT: (received 8-16-08) I am in favor of the changes; they are much needed. |
| COMMENT: (received 8-16-08) I think that all of the proposed changes are reasonable and are protective of the public. I therefore would support all of the proposed changes. |
| COMMENT: (received 8-16-08) 1. Would the practice of sending an email reply to persons inquiring via email regarding this Firm's ability or interest in handling a particualr legal matter have to comply with the new rules, such as the disclaimers and use of the word "ADVERTISEMENT?" 2. Would the practice of sending a letter to individuals who have contacted this Firm via phone either (i) declining the representation, (ii) confirming an appointment at our offices or elsewhere, or (iii) generally introducing our Firm's practice areas and thanking the indivudual for contacting us in the first instance, without including the disclaimers and use of the word "ADVERTISEMENT" violate the rules as proposed? If the answer is yes, in whole or in part, why? |
| COMMENT: (received 8-16-08) Proposed Advertising Rule4-7.2(c) This is essentially a prior restraint on advertising allowing the political values of the CDC to pull advertising from which no complaints arise. As such I believe it to be an unacceptable denial of the right of free commercial speech. Does no one read the Constitution anymore or has this whole society become so fluid that power is unchecked? The clear intent of this rule is to impose Missouri Discipline on all TV lawyers throughout the USA. I want to know what in the name of satan has possessed you people to believe that such a scheme is not over reaching restraint on trade? |
| COMMENT: (received 8-17-08) Are you serious? (10) simultaneously with the mailing of the solicitation, the lawyer must file a copy of it with the Office of Chief Disciplinary Counsel along with a signed affidavit in which the lawyer attests to: (1) the truthfulness of all facts contained in the communication; (2) how the identity and specific legal need of the intended recipients were discovered; and (3) how the identity and specific need of the intended recipients were verified by the soliciting lawyer. ( That is a ridiculous requirement, especially for criminal defense attorneys who send solicitation letters from the listings on casenet. Have there been any REAL problems with those attorneys NOT retaining example letters or lists as required in the earlier subsection of the rule? Why do they need an affidavit? Why does it have to be sent to the OCDC? If someone has a question or complaint or suspicion, they can contact the OCDC. The volume of letters sent out by some attorneys will cause a huge volume of solicitations/affidavit/compliance letters to be sent to the OCDC that they will NEVER be able to review and/or warehouse. This is just silly and stupid. Let's hear about some investigations, admonishments, discipline of attorneys by the OCDC for breaking the current rules before you create this paperwork monster for NO APPARENT REASON!! Have you actually spoken with attorneys who really advertise before you put this rule together. Feel free to call me. |
COMMENT: (received 8-17-08) |
| COMMENT: (received 8-17-08) Having reviewed the suggested changes to Rule 4-7, I wonder why communications through websites and blogs are not addressed in the revisions to these sections of the rule. |
| COMMENT: (received 8-18-08) The requirement of 4-7.2(g) is unreasonable. Radio and tv advertising is commonly done in 30 second spots, and adding this "disclosure" requirement" woould eviscerate the attorney's ability to run a 30 second ad. Even 3 extra words can cause an ad to go beyond 30 seconds, and therefore force the attorney to either purchase a 60 second ad or abandon that avenue of advertising. Not to mention that this disclosure is totally unnecessary. Adults are not children, and they should not be treated as being totally incompetent. If anything, the "disclosure requirement" should only be mandated once a prospective client makes actual contact with the attorney. Then the attorney could be required to make such a disclosure. Requiring the disclosure in the radio or tv ad itself unfairly burdens the attonrey and restricts the attorney's ability to advertise his services, and would make doing so on radio and tv cost-prohibitive. |
| COMMENT: (received 8-19-08) >>> RULE 4-7.2 ... A lawyer shall not compensate or give anything of value to a representative of the press, radio, television or other news medium in anticipation of or in return for professional publicity in a purported news item . == Does this include "unrelated" advertising in e.g., Superlawyers, where a lawyer is profiled ? >>> Rule 4-7.3 ... A lawyer may not initiate ... == Please clarify "initiate" and specifically that follow-up response is permitted, e.g., phone call or letter after phone or e-mail inquiry initiated by the potential client, directly or e.g., through other counsel or professional (CPA etc.). >>> Rule 4-7.3 ... unless the lawyer knows or reasonably believes that the person to whom the solicitation is directed is unrepresented == This appears to require affirmative inquiry. Do you have to ask if they are represented before talking to them if a potential client "cold calls" the attorney ? |
| COMMENT: (received 8-20-08) As an active member of the media I oppose the proposed changes to the advertising standards being considered. I oppose any ad restrictions in general based on freedom of speech. Furthermore, of course, the creative execution of the spot would be compromised. As we have seen with similar restrictions in other categories the work around becomes an accelerated voice over that does little to convey the intent. |
| COMMENT: (received 8-20-08) After reviewing the proposed rule, I would support such changes to the rule. The changes would protect the integrity of the legal profession and increase firm responsibility. |
| COMMENT: (received 8-22-08) After reviewing the propose rule, I would support such changes to the rule. The changes would protect the integrity of the legal profession and increase firm responsibility. |
| COMMENT: (received 8-22-08) I approve of and applaud the proposed amendments as I find the ads currently running in the Kansas City area to be offensive and laughable. I believe that the requirements set forth in the proposed amendments will allow the reader or listener of the ad to make a more educated decision regarding the selection of an attorney. Hopefully, the requirements will also force the attorneys to reconsider some of the statements in the ads. |
| COMMENT: (received 8-22-08) I believe Rule 4.7.2(c), if it is implemented, would better read "...shall be deposited no later than seven days after the first publication..." As is, if it were deposited 8 days before the first publication, the attorney would not be in compliance with the rule. |
| COMMENT: (received 8-22-08) The proposed new advertising rules will be a nightmare to enforce. And, as another person said, The information about how to contact the DC implies that there is something wrong with the very advertising the Supreme Court has approved. The proposed new rules do ensure continued employment though for those enforcing them. OK, a few of the new proposed rules like stopping ads from implying big results in personal injury cases are good but most of them smack of big brother and infringment on free speech. |
| COMMENT: (received 8-22-08) The additional rules and revisions are not necessary and the backing of this proposal is suspect. Our current rules and disclosures are adequate. |
| COMMENT: (received 8-22-08) Regarding the changes to 4-7.3, specifically the required invitation to complaint to the Chief Disciplinary Counsel ------ It's as if you are mandating we say " WATCH OUT! Our letter might be a scam, or wrongful in some way." That's really kind of insulting to the Bar as a whole. People know how to complain if they are offended or treated badly. Here's a less offensive alternative: Mandate that each letter of solicitation also contain a special info sheet, written by the Bar, in which the Bar tells the public some important things - a client Bill of Rights so to speak, but not a gloom and doom warning. The Bar can periodically send out PDFs containing the latest language, and we can print out as many copies as we need. |
| COMMENT: (received 8-22-08) This is all a lot of smoke, but where is the fire? What problems have come up since the last change in the advertising rules that necessitate these changes? I read each of the bar journals in this area and I have yet to see any lawyer publicly admonished, censured, suspended or disbarred for violating the advertising rules. I am not surprised that there are some lawyers opposed to advertising. In my experience, they are either the older connected lawyers who don't want competition or the large defense firm lawyers wanting to protect their corporate clients from potential plaintiffs. As to what has hurt the image of the American lawyer, it isn't just advertising these past few years. Lawyer jokes and the dislike of lawyers has been around since the advent of the modern media. People fear lawyers b/c lawyers represent power -- usually the power to hold people and corpoarations accountable for their actions. |
| COMMENT: (received 8-25-08) I take issue with ads that make reference to a former "judge" working for the firm when, in fact, the "judge" was a former administrative law (worker's comp., or otherwise) judge. I believe the same is purposefully misleading to the public, especially when the TV ads show the "judge" in full robe in a courtroom. |
| COMMENT: (received 8-25-08) Some lawyers advertise, and some don't. Advertising which works should be permitted. You must first understand something about advertising; it is the transmission of a message to an audience with the intended result being a response. Once a prospect calls, they then decide, based upon their interaction, whether or not to hire the lawyer. Advertising is like a gun. It usually doesn't create a relationship without something more, just as the gun needs a finger to fire a round. The purpose of advertising is simply to create the opportunity for some third party to respond, to seek one's counsel. If we are obligated to make our services available, we must let people know who we are, and what we do in a language they understand, in a palatable message, and hopefully one that instills confidence in us. We do not advertise the profession, that job is left to the bar, we advertise our own practices in pursuit of our own livelihood, and the ads will ultimately be judged by our success or not. Those of you who want to effectively ban all advertising are fighting a losing battle. Advertising is a constitutionally protected form of speech, so forget about an outright ban, as well as in erecting ridiculous impediments such as those expressed in the proposed changes with only one design and that is to so infringe on the right to business speech so as to effectively materially impair it. Certain of the proposals will simply invite litigation resulting in greater freedom of speech on a constitutional level dictated by a federal court as a federal question especially with interstate practice and the internet. Many of the proposals are designed to increase expense to all of us, whether or not we advertise, by further administrative work and expense at the bar, and to especially burden advertisers. If you want to restrict competition shut down the admission process, or make it so difficult for new lawyers to be admitted that attrition will lessen competition between the current members, but then that creates some problems too. Don't grant reciprocity. Require local counsel and a local office. Keep the law schools cranking out new graduates because the law schools shouldn't be punished by the narrow minded anti competition component of the bar. Some advertise because they need to and others don't because they don't need to, and even those who don't need to do so do so anyway in "institutional ads" promoting the arts, entertainment, good causes, etc. Look at any fine arts program or public t v show. Many if not most are full of lawyer "advertising." The speech content is different, instead of saying we will help someone in need it focuses on we are bright and cultured. Bullshit. Many of the big firm lawyers are neither bright, nor cultured, and I could go on but won't. Maybe you didn't like the advertising of that expression, so what others loved it. Some of you despise advertising as unprofessional, but many of you are likely the only lawyer in some small town or work for a large firm that does institutional advertising or insurance work . Two lawyers in town (or one from out of town) always benefits both lawyers and the clients (and the court reporter for that matter). Some of you are likely tort-reformers connected to the insurance industry. You are not going to reduce claims expense by making it more difficult to find an attorney, you should conserve your expense by settling cases promptly and fairly without subjecting the Plaintiff's bar and your policyholders to inordinate expense. We need tort reform all right, and that would be to require insurers to promptly pay claims or if not at the cost of substantially greater penalties than the current limited vexatious refusal penalty. Perhaps double the damages, and trebling of attorneys fees, and a statute requiring that the contingency fee be taxed as a cost, rather than as some judges mistakenly believe they are constrained to an hourly fee. Perhaps there should be a bright line, such as in auto cases, a minimum first offer of triple the specials including medical and income. Some of you don't like the content of certain ads, its not to your taste. Well your taste is in your mouth. What tastes good to you, others may find revolting. I don't care for liver, or any organ meat for that matter, and they don't sell much of it compared to other meat at the butcher counter. What is important is how the public views the ads in selecting a lawyer. Ads that work generate business and thus spawn more such advertising. If you want to know what works, meaning, what people rely upon in selecting an attorney, look at the extent to which advertising lawyers continue to run ads and understand that it costs money, lots of money to do so, and that if the public didn't like, trust or have confidence in the lawyer, the ad would not continue to run. If it doesn't generate business, Adam Smith's guiding hand will take it off of the air, there is no reason for you to preemptively bar it. Also, there is demonstrated ignorance by the proponent of the media retention rule of the federal law requiring the retention of data pertaining to on air broadcasted material. TV stations are required to maintain logs citing the date and time and spot identifier, and if not required to do so, many maintain copies of the ads. There is already a media retention requirement in Rule 4. Furthermore, the law of contracts, negligence, fiduciary relations, and the nuts and bolts of the ethics rules directed to regulation of the attorney-client relationship sufficiently regulate the relationship. If the concern is bad advertising harms clients, the clients already have a full battery of remedies, as does the bar. If instead the concern is stopping the formation of attorney-client relationships it is 100% counterintuitive to our existence. I recall at a bar meeting a few years ago at the Lodge, a bar committee member or governor having presented radical proposals to further regulate advertising and he was literally booed into silence and had some sort of threatening exit comment. The crowd was visibly angered. A "profession" is a calling by which one earns a livelihood. Unless you are being supported by someone in your practice, such as you work for a governmental organization, a foundation, a corporation, an insurer or the like, you need to generate income, and to obtain new business you may find you need to, whether or not you like or want to, advertise. Content should be decided on an objective standard, not what someone likes. I once wanted to do an ad involving livestock to generate rural business, but now I would be reluctant to do so. Some big city lawyer may be offended, but the folks in the country might just find such an ad disarming enough to call an attorney, maybe even me. How about a signing lawyer in an ad (so long as the voice was decent) is it unprofessional to sing ? How about a lawyer practicing out of home, could they be sitting at the kitchen table, drinking a cup of coffee? Why not? Why is any of that any different than a silk stocking lawyer looking out of a high-rise conference room window or a shot of an office building with a firm name on it, or for that matter a firm name on a building not owned by the law firm. Isn't it misleading for a law firm to "advertise" its name on a building it is a tenant in but which it does not own. How about a ban on that ? What works, is what will generate business, and by definition people don't hire lawyers they don't trust. So long as the speech is true and does not unlawfully tread on competition or unlawfully solicit, it should be permitted. Delivery is another matter. I agree with the people who are against in person solicitation. I think it is inexcusable except under the limited permitted circumstances expressed in Rule 4. I also think the direct mail approach, even when branded "advertising", is too personal and intrusive and should be curtailed. I would think that someone who was just sued or lost their driver's license would be offended by a stranger letting them know about it before they were served with the summons or notice from the director of revenue. Price comparison advertising content should be barred. The reason is simple, by claiming that one's are lower than someone else, there is an implicit representation that the quality of the services, and the outcome will be the same. There is no way to verify the truth of the comparison without violating client confidentiality in exposing all of one's work and results, and you simply cannot compare cases on an apple to apple basis. Even then there are different problems with clients, facts, issues, etc. The Edelman & Thomson ads are commercially offensive in their implicit representation they will do as well or better for the client for lower fees. Unverifiable (buy quality & result) price competition in advertising should be banned. We aren't selling cars or tv sets. We are selling an intangible. Also, certain plaintiff's counsel's grandiose claims of hundreds of millions or dollars or billions of dollars in settlements should be further scrutinized. These types of claims should disclose the class action nature, the type of action, the average recovery in the action, etc., rather than give the misleading impressions that otherwise arise. To sum it up, advertising which works and generates satisfied clients should not be overly regulated. Personally intrusive advertising and solicitation should be barred and offenders banished. Client's are not harmed by advertising, but if the lawyer fails to perform, oversells, screws the case up, etc., there are plenty of existing remedies and disciplinary issues. If we indeed have an obligation to make legal services available we have an obligation to let people know who we are, what we profess to be competent to do, what we are interested in accepting, something about ourselves, and to do so in a manner that is objectively not offensive to the audience (legal services consumers). Our communications should be truthful and not misleading. We should be permitted to exercise creativity and express warmth and instill a reason for the viewer to call us, even if it is only that they like our ad. And even if they only like our ad, that is beneficial to the profession. |
| COMMENT: (received 8-25-08) I think we as a profession have traveled down the wrong path with all of the changes in allowing lawyers to advertise. Advertising has changed a once noble profession to a business. More importantly, it has changed the perception of lawyers and the profession in general. We are no longer held in high regard or respect because of the way we are portrayed in advertising. I applaud any changes that limit the scope on advertisers. |
| COMMENT: (received 8-25-08) Although unsure if this has any bearing, a client recently informed me that as soon as her husband filed for dissolution, she was solicited by mail by an attorney wanting to represent her. I thought that was outrageous. I believe attorneys are hated enough as it is and loosening the rules will only be a disservice to the profession and to the clients who will be preyed upon by who knows what sorts of law license holders. If attorneys are to reagain any of the ground that has been lost, the rules should be refined. I was dumbstruck at the Mirror Mirror seminar when the spokesperson for The Bar Plan stated "Last year we treated you like professionals, this year we spell it out for you...." I view the profession as an honorable one no matter what others may believe, and every effort needs to be made to protect the integrity of our legal system. |
| COMMENT: (received 8-26-08) To the extent that communications in 4-7.1 include a bio page on a firm website, I find the addition of 4-7.1(d) to be absolutely preposterous. In the big law world especially, many teams for cases consist of many attorneys. Only allowing the lead attorney (or one who was "primarily responsible") to list the case and result in their bio page takes away from the fact that these cases involve many attorneys and favorable results are the result of the work of many attorneys. There may be a line between someone who pitched in for a few hours and one who worked on the case for hundreds of hours, but that distinction is not in 4-7.1(d). If 4-7.1(d) is going to be added to the rules, it should be modified to reflect that many attorneys play a part in securing favorable results. A line could be drawn, perhaps, by requiring the attorney who is saying this in their bio of their website to list their role for each favorable result they claim. This would give the public full disclosure and remove the implication that the attorney did more than they actually did. If an attorney worked on a case for years and helped get a good verdict, but wasn't the lead attorney, both attorneys should be able to list the result in their bio site. If not, then BOTH attorneys should be disallowed from listing the favorable results. We cannot just limit it to the lead attorney, who in many cases, may not even have a significant role. |
| COMMENT: (received 8-26-08)
The 6 second oral disclaimer for tv ads (the choice of a lawyer.......) does not reasonably regulate but bans 15 second ads as it would be 40% of the 15 second ad and 20% of a 30 second ad. this 6 second disclaimer rule is not reasonable or necessary and is an effort to ban tv ads by those who do not want to recognize that commercial speech is permitted by law. currently, a visual disclaimer is required and if the rules are not being followed, ocdc should enforce compliance. a real disclaimer to actually protect the public would read: "verify your lawyer's training and experience for your case." |
| COMMENT: (received 8-26-08)
The comments and input of those well meaning souls who want to ban all adverising should have no weight to this debate as lawyer commercial advertising is the law through repeated decisions by the supreme court over 30 years. OCDC should enforce the current rules on any type of ad that is false or misleading to the public. no one can legislate good taste but enforcement of current rules will help without creating new problems. |
| COMMENT: (received 8-27-08)
Is more regulation the answer; first, what is the question? Is the question: to over-regulate to ban ads or to enforce good taste or to reasonably regulate misleading and false ads? The first is illegal. The second is impossible. The third is not the problem as the new proposed rules do not address that issue. ocdc should enforce current rules for 2 years and then evaluate the situation in terms of real need and not enable the ad-haters to try to ban ads by lawyers who follow the rules and try to present ads in good taste. if you believe a law firm is running an ad that violates a current rule, call ocdc. stop trying to stop ads that do not violate the rules. |
| COMMENT: (received 8-27-08) I agree with the proposed regulations, but they do not go far enough. Any lawyer advertising or personal contact from an attorney to an injured party is improper. It all encourages litigation that burdens our courts. Attorneys have a major image problem, in this state, and in the rest of the country. These regulations, while modest, are a step in the right direction. |
| COMMENT: (received 8-28-08) I write to oppose the proposed amendment to Rule 4-7.1(d). I can understand and accept a rule prohibiting a referring lawyer who did little or no substantive work on a case from referring to a highly successful outcome in their personal advertisements. However, the proposed amendment would also prohibit someone like me -- who has second chaired 8 tobacco trials over the last 15 years -- from referencing the outcomes of those cases in my advertisements. I have not only second chaired every tobacco trial with my former law partner, Ken McClain, but I have written or significantly contributed to successful appellate briefs in thise case. My expertise has developed over the last 15 years, and few lawyers in the country have comparable experience. My participation at trial is signficant, including putting on expert and fact witnesses, conducting cross-examinations of experts, making arguments to the court, and preparing every expert and fact witness in my case, among many other things. To suggest I can't refer to significant outcomes to which I have contributed unless I was "primarily responsibe" is an insult to my achievements, and denigrates the role of every second chair who does good legal work on successful cases. The proposed rule also invites a splitting of hairs regarding who is "primarily responsible"? Did the jury like me more than Ken? It pits colleagues against one another, and should be rejected. If it passes, you all should be embarrassed. |
| COMMENT: (received 8-28-08) It is my opinion that the rules are designed to eliminate attorney advertising and not to regulate it! |
| COMMENT: (received 8-28-08) Not only do these changes pose a threat to the livelihood of law firms in the state of Missouri but they also seem completely uncalled for. There have been no complaints from the public regarding the content of advertising. These ads can only help to serve the public by informing them of the vast selection of attorneys that may be able to assist them in their various legal needs. Clearly it would not be in the best interest of anyone to accept these changes. |
| COMMENT: (received 8-28-08) I AM A SINGLE MOM AND CURRENTLY HOLD A POSITION AT A PERSONAL INJURY LAW FIRM. THESE CHANGES IN THE ADVERTISING COULD HAVE A HUGE IMPACT ON MYSELF AND MY CHILDREN. |
| COMMENT: (received 8-28-08) Basically, these advertisements do not hurt anyone, which includes the general public and other law firms. In fact, they only serve the general public in informing them of the vast selection of opportunities in seeking legal counsel and protecting their rights. These proposed changes are ridiculous and serve no function what-so-ever. |
| COMMENT: (received 8-28-08) I do not understand what the problem is with the current style of advertising. Do people really think that if someone sees a commercial on TV they are immediately going to do business with that company? Hopefully they will research what firm can do a better job for them and make a decision based on that and not the fact that they saw a billboard with a phone number on it. I see billboards and hear ads on the radio all of the time for a certain window company to install windows. I did not do business with them but instead looked around on the internet and other sources and found a different company that I thought had better customer service so they got my business. Why should law firms have so many disclaimers on their ads? There were no disclaimers of any type for the window company that I mentioned earlier. I would consider this type of rule for disclaimers for law firms to be unfair and unjustified. |
| COMMENT: (received 8-28-08) I have been working at a law firm for 20 years that advertises, so I have had a lot experience with injured workers. In my experience, if there were not law firm advertisements on the television, a lot of the public wouldn't know where to begin to look for an attorney that handles certain types of cases, expecially injury attorneys. Everyone has television, so very easy access to a phone number. I think if you would limit the amount of advertisement on the television that cause hardship on injured workers and/or personal injury victims. If I wasn't an employee of a law firm and was injured on the job. Honestly I wouldn't even know where to begin to get legal representation. The phone book is access, of course, but the television is much easier and quicker to get in touch with an attorney that would fill the needs of injured people. |
| COMMENT: (received 8-28-08) Firms that advertise are one of the greatest assets to the public. Not everyone knows the type of attorney that is needed for their particular case. They do not realize the each law firm has a specialty. One would not go to a family law attorney to find out his rights in a criminal case. Advertising takes care of this need. I work for a personal injury law firm, almost every client tells us they found out which law firm to choose by a commercial on TV. They comment about learning their rights because of the advertisement, also about drugs that are dangerous, and products that have been recalled. I have read the proposed changes and am against them, advertising is the greatest source of public information. |
| COMMENT: (received 8-28-08) Advertise should continue on television. Many people are taken advantage of and do not know their rights. It helps to see this information on television so they know they can call someone and ask questions. Thank you. |
| COMMENT: (received 8-28-08) Those inclined to advertise will advertise no matter how the Bar attempts to restrict the ads. Why not just make it simple and let everything go or nothing? Those who lie or mislead will be weeded out like advertisers are in other businesses. Aren't there already consumer (and other) laws and ethical canons which take care of all this? This smells like something is being done just for the sake of doing it and it will have little or no practical effect on those toward whom it is directed. |
| COMMENT: (received 8-28-08) I don't believe that oral disclaimers are necessary for commercials being run. I have seen advertisements from large law firms and also from single attorneys. They are not brainwashing you to use them only. They are out there to be helpful and give useful information to the whole public. I work for a large law firm and I have had plenty of clients that chose us because there was no fee taken just to talk to an attorney for help and then felt very comfortable enough to go with them. I,like many other people, struggle with enough money to make ends meet, but it is always nice to know that if I would need help from a attorney, that I don't have to have money up frontto be able to talk to them for help. Because I may have seen that ad on tv,it would be nicer than trying to go thru the phone book calling every attorney and hoping they could help me and work with me. What has changed? |
| COMMENT: (received 8-28-08) The proposed changes are not only unnecessary, but would severely hinder the public's ability to make informed decisions when selecting an attorney. These ads help the public in assisting them with their legal needs. Also, there have been no complaints made by the public regarding these ads. These changes also threaten the livelihood of Missouri law firms and the families that are supported by jobs at large firms that advertise. |
| COMMENT: (received 8-28-08) I have reviewed the proposed changes and I am opposed to the them. These changes would make it very difficult for firms to use direct mail and TV commercials as a means to reach out to people in need of help. These people may not have known that they could get help or where to get it with out exposure to these types of advertisement. When a drug or device has been recalled, TV commercials are one of the greatest sources of information to the public. The people rely on it and in many cases it is the only way for them to get some type of compensation for damages they have incurred. |
| COMMENT: (received 8-28-08) It is my opinion that these proposed changes are both ridiculous and unnecessary. I also am somewhat baffled about why someone would want to simultaneously limit their exposure to the public (who in certain situations quite desperately need help) and stifle the growth of their own business. The traditions of the past with regard to advertising are outdated at best. To assume that the vast majority of the public has been simply handed the business card of their grandparents' attorney is ludicrous. The days of the “Family Attorney” are long behind us. Most families are not even living in the same state. It is vital that the public be provided legal information and provided access to legal help. Hopefully, this profession will begin to embrace opportunities to advertise and in doing so be of more benefit to themselves and more importantly to the public at large. |
| COMMENT: (received 8-28-08) I am a paralegal working in the Mass Tort department of our Law Firm and just want to express how important advertising has been for the majority of our clients. In fact is has probably been the single greatest source of information to the public about drugs and products that have either been recalled or deemed dangerous. It has been a way to reach out to those that don't know there is help out there when they are injured. In my opinion the public is being helped by the advertising not harmed. |
| COMMENT: (received 8-28-08) Have there been any complaints made by the public or is it just other lawyers? It seems to me these rules are clearly designed to eliminate lawyer advertising not to regulate it. |
| COMMENT: (received 8-28-08) To Whom It May Concern: This letter is in response to your proposed changes to television advertisements by law firms. I am a wife and mother whose family is supported primarily by my income. I am a paralegal working for one of St. Louis’s most prestigious law firms whose primary means of communicating their services is through television advertisements. Through the use of television, our firm is able reach a vast array of injured people and their families to inform them of our services. As it is my job to make sure customers are taken care of as well as putting their needs first, I have the opportunity to talk with them on a daily basis. I hear first hand their stories and troubles; many of them are hurt badly and unable to work or have family members who are permanently injured due to other medical reasons. These clients are from all over the tri-state area and have told me on several occasions how happy they are with our firm and that through our advertisements they were able to find us. They know we represent their best interest and work hard to help them during their time of need. If we were unable to advertise to these clients, many of them would go either without representation or find someone else to help them who may not have the experience, reputation and fortitude to handle their sometimes complex problems. As stated above, my family depends on me and my income. If our firm was no longer able to advertise, it would cause a serious decline in our client base, therefore possibly forcing me into unemployment. As our economy is in serious decline with skyrocketing unemployment rates, I urge you to listen to the voice of one wife, mother and paralegal, and leave legal advertisements as they are. I realize I am only one voice, but one voice should still make a difference, no matter how small. |
| COMMENT: (received 8-28-08) As being an employee of a law firm that advertises and a citizen I really do not understand why all of the sudden you would want to cut out advertising for law firms. This will not only affect all of the firms that do advertising but also every local citizen. I do not know of a single person that was ever hurt by listening or seeing a commercial on T.V. In my opinion, sometimes this is the only way that the public will know what to do when they have been injured or even had a relative die because of someone's or some company's negligence. Why is advertising all of the sudden an issue? I have to wonder, as a citizen, who exactly is trying to get rich off of other people's misery? Meaning, if these changes go into effect there will be a lot of people (working class people) without a job. Seriously, isn't our economy bad enough without adding to it. |
| COMMENT: (received 8-28-08) I believe advertising is a very good way to help people who were injured at work or have taken an effective drug to see about their rights. A lot of people don't know their options when they have been injured at work or taken a drug that will effect them and/or their families for the rest of their lives. |
| COMMENT: (received 8-28-08) I'm unclear why the rules for advertising need to be changed. Was there a study conducted? If so what were the results? I'm particularly concerned with television advertising. Why would attorneys have to have a "conspicuous disclosure?" Should attorney advertising be treated the same way as a drug company's advertising? I don't think so. |
| COMMENT: (received 8-28-08) I wanted to comment on the proposed changes to Rules of Professional Conduct Related to Lawyer Advertising. In the last 2 years there have been changes to the rules that govern advertising. Why do additional changes need to be implemented? These changes already affect not only the big firms themselves but also the smaller firms and the employees and families of each of these firms. Therefore, affecting the community as a whole. I believe that each of us has a right to chose an attorney who we believe is the best for us. If we are inundated with disclaimers for each commercial, that would take away from finding out potentially important information that could help in deciding what is best for us. Please trust in the public's own ability to make their decisions without placing undo restrictions on the firms trying to help. Thank you for your time. |
| COMMENT: (received 8-28-08) I am wondering if those proposing said changes value their employees' welfare at all. These changes would not only affect partners of a law firm, but also their employees and their families in possible salary cuts and/or lay-offs. Advertising is part of our society. One of the many great liberties we have in our Country is free speech; a privilege that has been upheld for many by attorneys. Advertising is this freedom, be it via mail, radio or television. With all the unrest in our world why would capable men and women waste their time and talent on this issue? |
| COMMENT: (received 8-28-08) Advertisment voices freedom of speech, in what ever verision. Everyone should be entitled to voice his or her opinion or promote their business. |
| COMMENT: (received 8-28-08) I have been a paralegal for 12 years and believe that if it were not for being able to advertise in this manner, clients would not know of their legal rights which is basically what an attorney's job is to advise and inform the public of their legal rights with any means necessary to get the "lay person" to understand. |
| COMMENT: (received 8-28-08) As manager of our Lead Conversion Center, I work directly with prospective clients. The number of people who hear about our firm due to television advertising is staggering. Yes, of course this helps our business grow. But more importantly, our advertising helps those unable to find legal help on their own. During the times we are off the air, our number of new case calls drop. This means that those who would normally call our firm after seeing our ads are not calling and not getting help. I would not assume that these people are therefore calling non-advertising attorneys; quite the opposite, I would assume these people are simply not getting the help they deserve and need. I also manage our referral program to non-advertising attorneys. Without these referrals, a number of these firms would suffer greatly. Our ads are helping advertising and non-advertising firms alike. Most people don't even realize they have rights unless they see an ad on TV. Not until then are they compelled to call an attorney at all. I have to ask, what is the benefit to restrict television advertising? Who are our current ads harming? Has there been a public outcry against attorney advertising? To all of these questions, I think you know the answers. Restricting television advertising is not cost-effective, it is unnecessarily burdensome, and most importantly, it alienates and harms the very people we are in this business to help and protect. |
| COMMENT: (received 8-28-08) Further restrictions and limitations placed on attorneys' advertisements are completely unnecessary for many reasons. First, the current restrictions already have the best interests of the public in mind. The old adage “if it ain’t broke, don’t fix it” is quite appropriate here. The public is in no way endangered by continuing with the current restrictions, so why is it necessary to change them? It can be seriously doubted that there are complaints made by the public that the current format of advertisements are in serious need of reform. One can’t help but wonder what the point of these proposed changes is and what is the motivation behind the proposers? Secondly, the proposed changes are going to place an unduly burden on attorneys and law firms due to the ridiculous filing requirements with the Bar. This will take away time and energy from the quintessential function of attorneys and law firms: to represent a client in a dispute in order to favorably resolve that dispute. Dealing with more paperwork is going to end up wasting precious resources that should be devoted to providing legal advice. Additionally, the new filing requirements will place a large burden on the Bar. Where are the additional funds going to come from to manage the influx of advertising material? Will this also come from attorneys and law firms in the form of increased Bar Fees, thereby decreasing even more time and resources away from clients? Lastly, and most importantly, advertising is beneficial to the public. The proposed changes will make it more difficult for attorneys to advertise in an efficient manner. As a mass tort paralegal I have learned that a substantial portion of our clients are informed of product recalls through advertisements. Most people would have no idea what kind of legal rights they are entitled to (e.g. medical bills reimbursements, product replacements, etc.) without information from law firms. Obviously, the media covers the recalls to a much smaller extent and it is easy to imagine someone missing one evening news broadcast and never learning of a product recall. Fortunately, with the current standards, attorneys and law firms are able to advertise the product recalls and effectively inform the masses. However, with the proposed changes it will be difficult to advertise in an efficient and meaningful manner much to the detriment of the public. |
| COMMENT: (received 8-28-08) I am not a Missouri Bar Member but I am a paralegal that works with a large law firm that relies on advertising to bring in a majority of our clientele. My job depends on this advertising and my family depends on me. As it is I am not here on my own behalf but also for our clientele that rely on such advertising to remind them of their rights. I specialize in helping disabled Americans receive their Social Security Disability in which they have earned from years of working and paying their taxes. I receive calls on a daily basis from those who are struggling to make their mortgage payments, car payments, utilities, or simply to get medical treatment or medications that they so desperately need. Most have actually applied for Social Security Disability multiple times and have no knowledge that they can appeal their decision and instead will go months or even years of having no income or struggling to keep a job only to be terminated or forced to quit because their disabilities make it impossible to meet their employers’ expectations. That is until they see one of our ads informing them of their rights. We bring them hope. I am proud to say that I work for a firm that helps our fellow Americans fight for their rights, for their survival, and for their families. And with your help we can and will continue to help those in need. Thank you. |
| COMMENT: (received 8-28-08) Just want to say that I am a litigation paralegal at a law firm that "does" advertising and I have only heard good things from our clients. A lot of times I hear that they were at a loss of what to do until they seen our commercials. The majority of people have no clue of their legal rights and without the advertising of our firm; a lot of clients may have not taken any steps to even question whether they have a potential claim. I think working in the legal field tends to make us forget that our presumption of knowledge when it comes to "knowing what steps to take" if injured, has blanketed our thinking.., and in return it is an injustice to the lay person who has no legal knowledge whatsoever. Without these commercials I think a lot of claims will be overlooked by the average person. Besides, with potential claims already faced with statutes of limitations, I think by restricting a firm’s ability to get as much information to the client in the short amount of time they have through a commercial will potentially harm a person who would have never been able to take the steps to having a claim filed if it wasn't for the benefit of information through one of our commercials. |
| COMMENT: (received 8-28-08) I've worked for the Law Firm of Brown & Crouppen now for over 2 years, and I've learned in so many aspects of what a law firm represents when it comes to fighting for the peoples rights. To take this firm's right to advertise away will not only effect the firm in itself, but it will effect the employees' that work for the firm as a whole; including myself. Advertising draws in their clientele so the clients can be informed of their legal rights when need of legal representation. Taking away advertising can start the decline of clients' which can cause the firm to loose money, as well as possible budget cuts and eventually job losses. Please do not take away the right of advertising, for which it can really effect this firm in more ways than one. |
| COMMENT: (received 8-28-08) To Whom It May Concern: In regards to the proposed changes to the Missouri rules for attorney advertising, I believe these changes would be a disservice to the public. I am a paralegal who works on personal injury claims at Brown and Crouppen, who is one of the biggest advertisers. I can't tell you how many time a client has said to me "thank goodness I saw your commercial, I didn't know what to do..." Many of my clients are from rural areas and don't have a lot of access to "local" attorneys who they might know or are listed in the phone book, so the only exposure they have to the help that is available to them is through the television. So many people have no idea what to do in a situation where the adjuster may be making a minimum offer just to settle the case, and if that person doesn't have someone to ask, they may take the settlement, not knowing that they have a choice. They can call us for free and ask us, and if they become a client, we will help them get the best compensation possible for what is, many times, a life changing injury. Again, I really believe that attorneys being allowed to advertise on television and/or radio (something the majority of the public has access to), really helps them become more educated about what their options are and allows them to not only be compensated monetarily, but also helps them feel like the negligent party has been made to "pay" for their carelessness, and maybe they won't be so careless with someone else's life next time. Thank you for your time. |
| COMMENT: (received 8-28-08) I do not believe that changing advertisements by making the advertisers state the disclaimers orally will make any difference on how viewers perceive the commercials. Honestly, how many of us read the disclaimers, thats why they are disclaimers, that is not what you want to here; what a consumer wants to hear is what the advertiser is offering not the little disclaimer at the bottom, that is why its a disclaimer. I think that consumers will START complaining about the commercials if the disclaimers have to be made orally because they will not get what they want out of the commercial, they will have no information nor will the actually know what the advertiser is offering or trying to say to them because they will only get 20 seconds of disclaimer. I think that this change will do more harm than good to the consumers because it will give them less information than what the current advertisements give them now. I think that the changes will take away from consumers knowledge not add to it. I don't want to hear the disclaimer about a firm I want to hire, I want to hear how they can help me and what they can do for me. If someone is hurt they want to know that they will be helped and want as much information as possible before making that phone call, if all they hear is disclaimers that doesn't tell them anything. So unless you want to allow advertisers to have 1-2 minute commercials then I think you are taking away from the public not helping them. |
| COMMENT: (received 8-28-08) I write in opposition to the proposed rule changes. These rules are clearly designed to eliminate lawyer advertising not to regulate it. Please ask yourself what is the real driving force behind these proposed changes? Is it outcry from the public that the rules purport to protect, or the interests of lawyers who would rather not advertise and resent those who do? If the basis is compaints from the public, then publish the evidence or surveys conducted by the bar to demonstrate public harm. Some more food for thought for those considering this unnecessary and damaging anti-advertising agenda: 1. How could a lawyer ever know for sure if someone is already represented by a lawyer as required by new rule 4-7.3(9)? 2. These are serious restrictions that will lead to a huge fight, how will the bar pay for its defense? 3. The FTC, Public Citizen, the ACLU, and the Missouri Broadcasters are all opposed to these changes, why on earth would the bar support them? Vote NO. |
| COMMENT: (received 8-29-08) I have just a few questions/comments concerning the proposed changes to the Missouri rules regarding lawyer advertising: What has changed in the last two years that require additional rules? Why are we singling out choosing a lawyer based on an ad as opposed to people who choose lawyers based on location or referral or any other way? These rules are clearly designed to eliminate lawyer advertising not to regulate it. |
| COMMENT: (received 8-29-08) I believe the proposed amendments to Rule 4-7 will cause a great deal of innocent, injured people to lose out on the help they deserve. I am not a lawyer, but I do work at a law firm. Day in and day out I see and hear of people who have come to our firm seeking help for sometimes tragic injuries that they have sustained through no fault of their own. An astounding number of them maybe would not have even known there was help available to them if it weren't for the short commercial they happened to catch on television. There have been no complaints from the public regarding the advertisements they see. Advertising helps them to see that there are attorneys available to help them when in need. The only complaints have come from other attorneys. It is only competition that prompts attorneys to complain about other attorney's advertising. If these amendments go in to effect, many injured, innocent victims are not going to know where to turn for help. They will not know how to use the laws that were made to help them. Further, there are a lot of people who work in law firms that advertise. From attorneys to mail clerks, they all have families to support. These amendments would surely hurt business and therefore maybe firms would not be able to keep their full staff. It would be a terrible trickle effect that our economy cannot handle. In closing, if these amendments are approved, the victims will be the injured, innocent people in the community and also the people who have worked hard to make a living for their family. Who benefits? I have thought long and hard and cannot come up with an answer to that. |
| COMMENT: (received 8-29-08) Attorney advertisement is completley appropriate, if we are indeed a profession that seeks to serve the public good and maintain its trust. I have represented corporations and government; those clients never had any problem gaining access to quality attorneys--they sponsored golf tournaments, attended political fundraisers, business lunches, and happy hours. They had the financial means and connections to research, solicit, and obtain the best representation possible. My current clients do not have a "power index" of business card to find a good lawyer; they do not get invited to "networking" happy hours; they do not have colleagues who play golf with a lawyer who might help them when a medical or financial disaster hits. Advertising by attorneys is necessary for access to justice. We must beware of attempt to curtail such access, as it might be rooted in the self-interests of power. |
| COMMENT: (received 8-29-08) To whom it may concern: I am writing to express my concern over the proposed changes in the ability of law firms to advertise. I strongly oppose any change in the current structure, I am not a lawyer but I work in the industry. I talk to people everyday that would not be aware of some of the dangerous side affects of medications being distributed daily all over the country without this advertising. These people are having serious health issue and can’t figure out why until they are made aware of the danger that some of these medications pose by this type of advertising. The additional paperwork required by these proposed changes would only add to the already burdensome amount of paperwork and expense which currently exists. I would probably feel differently if there was a public outcry against the current system but I hear nothing but positive feedback from the people I talk to on the phone daily. Please do not further restrict a law firm’s ability to reach the general public with the vital information and services they provide by these proposed changes. |
| COMMENT: (received 8-29-08) I really don't understand why attorney's are being singled out in advertizing. Every other business in this country has the right to advertize, and are still considered to have professional conduct. Why are attorneys any different? Why don't they have the right to advertise the same as others? They have families to support, and bills to pay just like everyone else. I feel this proposition is denying attorneys their constitutional rights to freedom of press, and freedom of speech. A law firm is a business, with employees, who have families, just like any other business, and if the advertising rights are taken away from them, then business will be lost, along with jobs, and pay, for these families, then taxpayers like you and me and the people who have a problem with attorneys advertising practices, will be supporting the families who no longer have jobs. I don't think that people are looking at the long term affect of these proposed changes. Do they really want to be responsible for raising the unemployment rate, at a time when our economy's belt is at such a breaking point? |
| COMMENT: (received 8-29-08) I feel that with the use of advertisements the public has been helped not harmed. Many people may have not come to realize the right they have without seeing such ads. I know from personal work experience, many of my clients would not have known to seek legal help if it had not been for our advertisements. |
| COMMENT: (received 8-29-08) I believe the changes and much of the earlier language in the rules is/are unconstitutional. After all, if I, as a lawyer want to advertise to the public, the public can make the determination of whether my add is good bad or otherwise. People hate lawyers unless they need one. If I advertise to call me because I think I can help, it does not mean they will hire me. "The choice of a lawyer" is not necessarily made by the call but by the subsequent conversation, after all, they can call the next lawyer. Any message that I may convey is already bound by the requirements that it not be false or contain a material misrep. Get over it! |
| COMMENT: (received 8-29-08) I oppose these changes. After practicing in civil insurance defense for two years, I came over to Brown and Crouppen and I currently practice in work comp. Some of the most rewarding clients I've been able to help are the very rural and very poor clients who do not believe they have access to lawyers, other than seeing advertisements. I am in particular reminded of a 62 year old rural pastor's wife who needed a total shoulder replacement after both of her shoulders basically wasted away (visible muscle wasting) doing work at arm level and above her head for years. She was hesistant to file any sort of claim, yet she had paid out thousands in health insurance deductibles over several years and can no longer lift her left arm above her head. There are many rural, poor, and often older workers out there who would not believe they had any access to legal help if they did not see our advertisements. These folks get injured just as much (if not more) than people in our community who know lawyers personally and are already aware that they have access to legal advice. I would therefore oppose restrictions on advertising, including oral disclaimers. I see no public harm in the system as it currently is. Especially with work comp as restricted as it now is, employees need to be able to recover their health care and temporary disability payments; better to enable all those injured to have access to the legal system, and let the legal system work out the validity of claims, than to cut off claims at their origin in a way that will really only affect the poorest and most rural. |
| COMMENT: (received 8-29-08) In the proposed amendments to attorney advertising, one thing stood out under “Rule 4-7.2: Advertising” in the “Comments” section: “Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele.” My question is “How on earth does a person in need know you’re there unless you advertise? What’s the big stigma about not seeking clientele? Such ‘traditions’ can be a detriment to your business, are rooted in pride because you feel your reputation should precede you, and sends the message that you don’t wish to let the underprivileged, whose discovery of you may come from advertising, know of your services. How do you stay in business if no one knows you’re there?” The second thing that stood out was under “Rule 4-7.3b(9): Direct Contact With Prospective Clients”: “A lawyer shall not send a written solicitation regarding a specific matter unless the lawyer knows or reasonably believes that the person to whom the solicitation is directed is unrepresented by a lawyer in the matter.” Attorneys are now mind readers? Solicitations are sent to people that may be in need of legal help and advice. How are attorneys to know or even guess that a person may already have retained the services of another lawyer? Be realistic. |
COMMENT: (received 8-29-08) |
| COMMENT: (received 8-29-08) Adverting is a good way to convey your message. It would be a shame if this was taken away. |
| COMMENT: (received 8-29-08) Dear Members, It seems we just went through revisions and I do not see the need for these additional provisions. Am I missing something or have there been complaints from the public who we are trying to protect or are the complaints from lawyers who don't like advertising in the first place? Are we trying to protect insurance companies and drug companies by making sure they are not maligned in an ad? If they are defamed in an ad I am certain they can and would take action against the wrong doer. The public is educated about their wrongs in many of these ads and enabled to take ation to recover for their injuries. These ads are the reason most consumers know that asbestos is not good for you. How many more ways are we going to tell the public not to pick a lawyer from an ad? I believe the current restrictions are more than adequate to protect the public. It seems as if there are those who would take the next steo and require the ads to say that you should not pay attention to them in choosing your lawyer. Ask Aunt Mable about a good lawyer who may, or may not, have gotten her the recovery she was owed. I see no reason to further restric the ads. Additionally, it does not seem necessary to require the extra burden of forwarding all ads to the office of Chief Disciplinary Counsel. It places added expense on those who wish to adverttise and on the Office. Why? While I do agree that the Bar should attempt to act in the best interests of our clients, I do not believe these added steps are necessary. |
| COMMENT: (received 8-29-08) I feel the current rules as they stand and the work of this committee in the past have been effective in assuring lawyer/attorney advertising has been presented in a professional and respectful manner in our area. I feel, then, no reason at this time for these suggested changes. The changes suggested may limit the public's availibilty to information and the knowledge of the options they may have in choosing an attorney, especially those seeking legal counsel with limited financial funds. |
| COMMENT: (received 8-29-08) As a member of the bar, our job is to educate the public as much as possible there rights. Most people have no idea on how to find a lawyer without advertising. Placing the proposed restrictions only serve to protect those well established firm that currently percieve advertising as demeaning to the profession. The truth is that before advertising many underprivileged groups had no way of fighting the system. The real question is what has happened in the last two years that require additional changes, and is the drive for change being made by the public or a handful of attorneys. Either way we are treading on dangerous ground, in preventing the disadvantage from being able to have adequate representation. |
| COMMENT: (received 8-29-08) I am strongly against the proposed advertisement changes. I have never heard a complaint about the advertisement methods some of the law firms are using through different types of media. If anything I have heard praises for information that was received through advertisements. There has been no formal complaint from the public mentioned to fuel such changes. Is the reason for change maybe because some law firms do not advertise in this way so the firms that do have to be punished? Or because some law firms do not spend the money for this type of advertisement and find it unfair that others do. The advertisements through bill boards, television, direct mail, etc. have not been proven to harm the general public nor do they harm any other law firm. These types of ads inform the general public of their legal rights and add to the selection of legal counsel that a person can CHOOSE from. The information that a law firm projects in these ads has only proven to help the public. These changes seem to be more of a push to eliminate attorney advertisements rather than to regulate them. The cost that would go in to changing the current ads would be such a burden to firms that have strived to be at the positions they are in and the new “regulations” would cut into the time that they have used to educate the public of their legal rights. These costs would affect the livelihood of some law firms and the livelihood of their employees. Our economy’s unemployment rate has gone up over 7.5% recently and unfortunately the Missouri Bar is at risk of adding to this percentage if they consider changing advertising laws. So when the changes are being considered, make sure you can rest at ease with the decision you make because changing them could decrease the size of these law firms and hurt the people and families supported by the jobs that are created by these firms. If the change is based on other attorney’s complaints, (because we have not been shown facts where the public has been harmed or complained) then I suggest these lawyers take a look at the world we are living in. Our world is based on this phrase: SURVIVAL OF THE FITTEST. This pertains to every aspect of our lives. We teach our children this at a very young age! I don’t feel it is right to punish a firm that has survived because others are not using all avenues to do so. Advertising is a part of our everyday life! We all wear certain clothes and shoes because of some sort of advertisement, we drive certain cars because of some sort of advertisement, we even try new restaurants and food because of advertisements! When we need new windows, guttering, roofing, etc. we can choose to go with the company that has an advertisement on the television or on a billboard, but I would think that the majority of the public “shops around” for the right company. This is the SAME thing with an attorney! It’s like this, sure a person can see an ad on the television and want to try that law firm…but who is to say they will like that particular law firm once they get there? They have the right to go somewhere else and get a consultation if they so choose to. Maybe the business success comes from that law firm being a great law firm, not because they have a television ad. That is something to consider. The proposed changes are unfair and are not justified. There has been no change in the last two years to make changes to advertising laws. There are no complaints from the public nor has any of the advertising harmed the public. The FTC, ACLU and Missouri Broadcasters are all opposed to these changes. The cost to make the changes to everyone’s advertising would be outrageous and incredibly unfair to those firms and their employees. So, why the change…What is the real motive behind the MOBar’s proposal? |
| COMMENT: (received 8-29-08) I feel that the public (as consumer and citizen) are actually being well serviced by the current television commercials that are allotted their full 30 to 60 seconds of material. To impose additional disclaimers not only chips away at advertising budgets but would lead to a less educational message in regards to services provided by a diverse but often confusing marketplace of legal assistance . It affords those less educated in regards to the law the opportunity to be adequately informed about their rights and opportunities. Furthermore the disclaimer: "The choice of a lawyer is an important decision and should not be based solely upon advertisement" seems to me semantically flawed and a manipulation based solely on a highly generalized opinion. If the bar cares so much about misleading the public in regards to the profession of law then this disclaimer should include EVERYTHING that a decision such as this should not be based on: "the choice of a lawyer should also not be solely based on referral, race, hair color, religion, personality, education, height, gender, age, baseball team affiliation, beer consumption... etc." |
| COMMENT: (received 8-29-08) The purpose of lawyer advertising is to provide prospective clients with accurate advice and to help facilitate the intelligent selection of an attorney. The rules changes submitted by the Missouri Bar may actually impede this purpose by disclaiming the intention of the advertiser so prominently that the prospective client believes that attorneys generally think that consumers are unable to make intelligent decisions. Advertising, especially on television, is held to a very high standard by broadcasters who do not want viewers to be misled by advertisers. Advertising has a long history of being analyzed, discussed, disbelieved, remarked upon, and otherwise scrutinized by the public. Both of these dynamics provide safeguards that the Bar completely ignores in its quest to regulate this protected commercial speech. Disclosure or disclaimer rules provided in proposed rule 4-7.2 (g) are impractical to follow. An advertising attorney cannot obtain approval but must follow rules that disclaimers must be read at a certain pace. Who is the arbiter of the pace? How can an advertiser assure themselves that a disclaimer is “reasonably legible”? If a disclaimer must by “one-third the size of the largest font displaying a phone number,” does that permit illegible text if the phone number is displayed in a small font? Consumers are not unintelligent. Telling them that they should not base decisions solely on advertising is not delivering new information of which they were previously unaware. There are consumers that will certainly be influenced by advertising. They may also be influenced by comments from friends, neighbors, acquaintances, and co-workers. They may consider news coverage about a service or product they plan to use. Thoughtful, reflective consumers will make thoughtful, reflective decisions after considering their options. The Missouri Bar forcing advertising attorneys to say this in a certain sized type or at a certain pace during broadcast commercials will not change the behavior of consumers. Let’s face it, there are consumers out there that are not thoughtful or reflective, who do not make decisions in a thoughtful, reflective manner. Their reaction to advertising by attorneys may be to consider the advertisement, or it may be to consider the input of friends and neighbors, or it may be to open the Yellow Pages and throw a dart to choose an attorney! There is no reasonable way that the Bar can hope to force consumer to make thoughtful, reflective decisions. The inclusion and additional prominence given to the disclaimer in attorney advertising will have no bearing on whether consumers trust advertising messages or not. The new rules force advertising attorneys to deposit copies of any advertising materials with the Office of Chief Disciplinary Counsel, which shall be maintained for one year. For what purpose? In terms of broadcast advertising, television stations and radio stations already maintain public records for public inspection. The Office of Chief Disciplinary Counsel is not required to inspect, approve, catalog, or otherwise act upon such advertising, so there is really no reason for this rule other than to increase the costs associated with advertising. The advertising attorney is already required to maintain copies of advertisements for two years based on rule 4-7.2 (b) already in force. Of what benefit is an additional archived, especially one that is not catalogued? In the case of proposed rule 4-7.3 regarding direct contact, the additional condition in (b) (3) actually encourages consumers to make complaints about the materials provided. There is no shortage of information about how consumers can go about making complaints, and to direct the recipient to complain is to completely undermine any credibility the letter writer may have. How better to reduce the faith of consumers and potential clients than to instruct them in a complaint that is presumed rather than based on any reflection by the recipient? The new rules appear to have some serious flaws. The Missouri Bar will almost certainly have legal action filed should these rules be approved. Is the Bar prepared to defend these rules? At what cost? At the end of the process, will consumers and the public feel more favorably disposed toward attorneys? I think not. |
| COMMENT: (received 8-29-08) Get serious! All of the comments suggesting that all lawyer advertising should be completely banned must be coming from corporate attorneys and those repreenting insurance companies who have every incentive to prevent the public from knowing their rights. To suggest that lawyer advertising should be banned completely also reveals a complete lack of understanding of the law. How many times does the Supreme Court have to say it is a constitutionally protected activity before we get it? Further to suggest that advertising is responsible for the public's ever declining respect for our profession ignores the corresponding increase in invovlement by OCDC in every lawyer's daily activities. There is clearly cause to believe that when OCDC entertains every baseless complaint from each disgruntled litigant whose case did not get the disposition they requested, the public loses faith in our profession. Now we wish to further invite the public to complain? How long will it be before I have to include OCDC's number on the back of my business card? How will OCDC handle all of the extra workload? I guess I will just be asked to pay more bar dues to perpetuate the activity that does the most to damage the public's perception of the bar. |
| COMMENT: (received 8-29-08) To Whom It May Concern: I am writing this letter in regard to the proposed restrictions on advertising for those within the legal community. It seems to me that limiting any business or person from attracting new patrons to their product or service is counterintuitive to the success of Missouri’s financial future. If our state is not allowed to compete on a level playing field, how can anyone from the MO Bar ensure that helpful, taxable revenues would not be absorbed by border-states that can provide comparable services to our businesses? Anyone with a legal issue wants the best representation they can obtain. The firms or attorneys that have the most money to spend on advertising are the most financially successful and it follows that they have the most experience and are the best at what they do. It appears that this proposition is aimed squarely at the heads of the larger firms that participate in the types of advertising targeted within the proposal. Not only does this limit exposure to those who need it the most, but it seems wholly against capitalism. These proposed changes do not benefit anyone but rather make it more difficult and expensive for those trying to help. I ask you, what good can these alterations possibly cause? And who is going to monitor and approve the new advertisements? A board composed of unpaid professionals? The probability of that happening is staggeringly low. Reading the aforementioned proposals gave me pause to consider the true motivation behind them. I considered who these changes are designed to help and arrived at one simple conclusion. I suspect that this kind of posturing is simply a means to force a redistribution of wealth within the legal community. I wasn’t aware that the MO Bar had the capacity to engage in what can only be viewed as a sly attempt to play Robin Hood. In conclusion, I ask that you consider the broader impact that this proposition has on everyone, not just those working within the legal community. Please evaluate the positives that come with maintaining the current system rather than trying to cripple those who have made it into the resounding success it is today. Thank you for your consideration. |
| COMMENT: (received 8-29-08) Dear Members of the Special Committee on Lawyer Advertising: I have had the opportunity to carefully review the Proposed Amendments to Rule 4-7. These changes are strikingly similar to the proposed changes of 2005 which were not adopted. I am of the opinion that the proposed new rules raise serious constitutional concerns as well as issues pertaining to the attorney/client privilege and work product doctrine. The proposed rules also foster an anti-competitive business climate. I must say that I am surprised at the short comment period on the proposed new revisions given the severity of their impact on Missouri attorneys. The rules implemented in 2005/2006 were more than sufficient to protect the interest of the public. What has changed since then? Has there been a dramatic increase in complaints? If so, were the complaints by members of the public or by lawyers? I would suspect the latter. PROPOSED RULE 4-7.3(b)(10) There is no logical explanation why proposed section (10) is included in Rule 4-7.3(b). This section requires the attorney to file a sworn affidavit attesting to: (1) the truthfulness of all facts contained in the communication; (2) how the identity and specific legal need of the intended recipients were discovered; and (3) how the identity and specific need of the intended recipients were verified by the soliciting lawyer. This raises serious problems concerning the attorney/client privilege and work product doctrine. Even the Rules which are currently in place that deal with duties of confidentiality to the client specifically relate to not only current clients, but to “prospective clients” as well. The scenarios in which an attorney becomes aware of a client’s need for the attorney’s services are limitless. In some instances, information gained by the attorney will be considered confidential information and thus will be subject to the attorney/client privilege. Was it gained in pending litigation? Was it gained from a confidential informant? Was it gained from the spouse of the client? Was it gained in the attorney’s investigation of other matters? These are only a few scenarios in which this proposed Rule would jeopardize the attorney/client privilege and possibly the client’s case. The proposed rule not only requires the attorney to divulge this confidential information, but also requires the information be divulged by way of a sworn affidavit with very detailed, specific information. Indeed, this confidential information could be disastrous to the client if revealed to adversaries both in the civil and criminal contexts. Once this information leaves the attorney’s possession, it will be discoverable information. This is true regardless of whether the client ever retains the attorney. Adversaries will use information in the attorney’s sworn affidavit against the client even if the client retains different counsel. Moreover, how does revealing this potentially confidential/privileged information serve to protect the client or the public? I believe the answer is that it does nothing to protect the client or the public. How does this proposed section (10) advance “the substantial government interest in preventing deception and confusion?” The answer is that it does nothing to further these interests. Not only does proposed section (10) raise attorney/client privilege issues, it also raises issues pertaining to the attorney work product doctrine. Again, there is no limit to the number of scenarios in which the attorney learns of the client’s need for the attorney’s services. In some instances, it may well come as a result of existing litigation. In other instances it may come as a result of the attorney’s investigation in preparation for related litigation. Years of jurisprudence have created the attorney work product doctrine to protect an attorney’s information and strategies which, in turn, serve the client’s interest. This doctrine is applicable in both the civil and criminal contexts. This proposed rule will very likely diminish the work product doctrine and may indeed be disastrous to the current or prospective client’s case. The question must be asked again — How does this protect the client’s or the public’s interest? PROPOSED RULE 4-7.3(b)(9) The proposed section (9) also raises serious constitutional and anti-competitive concerns. The proposed amendment to section (9) now requires an attorney to prove a negative in order to ethically offer services to prospective clients — the lawyer must prove the client had not retained an attorney at the time the solicitation was sent. There is no logical explanation of how this rule protects the client. This proposed change appears to be a thinly veiled attempt to consolidate legal services into the hands of a few rather than allowing a prospective client to have choices. Having choices in legal representation only serves to improve representation and competitive compensation for legal services. As the U.S. Supreme Court has held: “Advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable.” Bates v. State Bar of Arizona, 433 U.S. 350, 376-377 (U.S. Ariz. 1977). This proposed section (9), on the other hand, serves only to further anti-competitive conduct and does absolutely nothing to protect or inform the client. What is the reason this amendment was proposed? Was it because of complaints from the public? Or more realistically, was it because of complaints by a few lawyers who do not want the public to have choices in legal representation? I believe the latter. As the U.S. Supreme Court has held: "[I]t is well settled that attorney advertisements such as the Letter Notice are protected by the First Amendment, so long as they are “not false or deceptive and [do] not concern unlawful activities.” Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 472, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988) (reversing lower court's finding that attorney's mass-mailed advertising letter was prohibited by ban on targeted, direct-mail solicitation, because the lower court made no finding that the letter was false or misleading, or that the ban otherwise advanced the substantial government interest in preventing deception and confusion)." The rules already provide for disclaimers in case the recipient of the solicitation has already retained a lawyer. Absent some sort of deception in the solicitation, this proposed section (9) is clearly a constitutional violation. Nothing in proposed section (9) advances “the substantial government interest in preventing deception and confusion” nor does it do anything to protect the client. Rather, the proposed section (9) is clearly a constitutional violation and not only condones, but actually fosters anti-competitive conduct which will ultimately harm the public. I strongly believe the proposed rules are overreaching, constitute a myriad of constitutional violations, and foster anti-competitive conduct — all of which will ultimately create harm to the public and will foster litigation on multiple issues pertaining to constitutional concerns, attorney/client privilege, and work product doctrine. None of the proposed changes are designed to prevent deception or confusion. Rather, it appears the proposals are solely attorney driven and not as a result of any actual problems or concerns raised by the public. The proposed amendments should be rejected in their entirety. |
| COMMENT: (received 8-30-08) The ad-haters argue that before lawyer advertising was legal in 1977, that lawyers were loved with universal respect and but for advertising we would still be that way. all other professions now advertise. abe lincoln placed ads in the springfield, illinois newspapers in 1843 and some lawyers did not like it. many lawyers advertise family law, bankruptcy, criminal law, tax law, wills,etc........these new proposed rules will adversly affect them from informing the public of their services and of their rights. the ad-haters long for another imagined time where american loved lawyers........please cite that time. most lawyers advertise to tell the public what that do and most lawyers follow the rules and use good taste. these new proposed rules are meant to ban ads.....not to reasonably regulate or promote good taste. the rules committee does not represent all of the bar on this issue. these rules should not be passed. |
| COMMENT: (received 8-30-08) We are living in the information age, and to restrict the public's ability learn about legal services is not good for the public, or the profession. For attorneys to say that we are somehow "above such things" disconnects us from the public we represent, putting us on a golden pedestal. Perhaps this is what many attorneys want, a return to the “good ol’ days”. However, perpetuating this elitist idea, and restricting the public's ability to make decisions due to unreasonable restrictions on advertising, would certainly damage society more than the current handful of attorneys making corny commercials. While I do understand the concerns regarding the select few "cheapening" the profession, one has to wonder which is the lesser of evils? Severely restricting or eliminating advertising would certainly come at a cost. Restricting the public’s ability to learn about an attorney before engaging their services would cause many to put off the selection process until the very last moment, or become legal "do-it-yourselfers", or seek help from "legalzoom.com" and the like, or to simply go without representation at all. All of these results are not good for the public, or for attorneys. How many persons will pay $200 per hour, to interview multiple attorneys, before making their choice? Perhaps we attorneys have become disconnected from those we represent, to see that not everyone can afford to do this. Alternatively, how many attorneys will give free consultations to those who are admittedly “just looking”? Perhaps we forget that selecting an attorney can be a very intimidating process. Advertising, at very least, is a place to start. I completely disagree with any comments advocating the complete ban of advertising by attorneys. For the above reasons, I also disagree with implementing a complex compliance and oversight process, which may effectuate the equivalent of any such wholesale ban on advertising. |
| COMMENT: (received 8-31-08) I am absolutely opposed to the proposed changes. Let's begin at the beginning. The basic rule (4.7.2.g) is stupid on its face. Having said that, I have some questions. Has there been a tsunami of ethics complaints against lawyers by consumers who allege they were so influenced by radio or TV advertising that, without more, they selected an attorney? Without telephone calls, emails, face to face meetings or other communication? Ridiculous! This proposed rule is a solution in search of a problem and has much more to do with protecting entrenched interests of attorneys who don't want to compete in an open marketplace for business than it does in protecting the poor gullible consumer. I am particularly opposed to the "speak slowly and distinctly" part of the rule. Anyone who has ever tried to communicate any information of substance in a 30 second TV or radio commercial realizes that this requirement would effectively use at least 5 seconds or about 20% of an advertising budget. This requirement is clearly an unconstitutional restriction on freedom of speech. If the Missouri Bar had any interest in truly protecting the public, it would start looking at passing legislation and taking action against all of those entities that practice law without a license instead of restricting the freedom of speech of lawyers who, in the vast, vast majority of cases, conduct themselves responsibly and ethically. Let me give some examples. Look at or listen to any commercial for LegalZooms. That company does everything it can to convey the impression that its documents are just as effective as those prepared by an attorney. The commericials it runs are a laundry list of ethical violations if run by an attorney - cut rate prices, implying success of a business because a person incorporated using its services, air-tight documents (ignoring the issue of whether the documents do what they are supposed to do), and offering people to answer commonly asked questions. Yet, because, in the commercials, the company denies it is a law firm, it effectively misleads the public and the Missouri Bar does nothing. Get on the Internet and search for businesses for sale or business brokers and see what comes up. And who are business brokers? Liars, cheats, high school dropouts - that's who! Do they have any qualifications or are they subject to any regulation at all? Yet, they fill out preprinted forms for the sale of businesses (clearly practicing law without a license) for 7 1/2% of the deal. And once again, the Missouri Bar does nothing to protect the public from the advertisements or commercials of these incompetents. I was recently contacted by potential clients who were interested in starting a franchise operation. Unfortunately for them, they used the Internet to find a company that charged them $45,000 for creating a Uniform Franchise Offering Circular. It was little more than a fill in the blank form. When the client contacted the company because the FTC regulations had changed, this company wanted an additional $10,000 to convert the document to the new Franchise Disclosure Document. We are looking at trying to get some money back from this company based on it practicing law without a license but I'm not holding my breath. In all of the circumstances I cited above and more, the Missouri Bar does nothing to protect the consumer. The proposed rule is a travesty that is an unconstitutional infringement on the freedom of speech and, as I stated at the beginning, has much more to do with protecting lawyers who don't want to compete than it does in protecting the public. |
| COMMENT: (received 9-1-08) This is a preface to more detailed comments I am working on as time permits. It occurs to me that at some point, by requiring more and more disclaimers and warnings and suggestions to file complaints about us, we are doing the very thing the rules seek to avoid - conveying to the public a negative impression of the profession. The warnings and disclaimers and suggestions to complain to the authorities REQUIRED BY SUPREME COURT ORDER makes an otherwise professional looking and polite letter look disturbing and unprofessional. The warnings look like tobacco warnings. It looks like the profession is telling the public that you need to look out for us, you need to be wary of us, there are a lot of bad lawyers out there and if you call the one who sent this letter, you might want to keep the letter in your pocket so the address for the OCDC is close at hand. If the letters of solicitation and tv and radio commercials are all that bad, why don't just outlaw them? Or, after the preamble reason for the rules that declares that all of us should avoid the type of advertisement that, although constitutional, conveys a negative impression to the public, LIST THEM. Define them. I can kind of get the idea of which ones the committee disapproves of by which ones are over-regulated and required to include excessive warnings and disclaimers. But wouldn't we all be better off and understand each other better (and wouldn't the ethically and aesthetically challenged be better off) if the committee and the rules explicitly defined or listed just exactly what types of communication convey to the public a negative impression of the profession? Again, I suggest that by telling the public they should be afraid of us or wary of us, we are conveying precisely a negative impression of the profession. I think the rules requiring warnings and disclaimers and suggestions to file complaints very clearly and forcefully tell the public that we don't even trust ourselves, so why should they (trust us, as a profession)? Coincidentally, I find in my conversations with the public, that what tends to convey a negative impression of our profession are the lawyers who defend child molesters and tobacco companies and murderers and flag burners. These rules which seek to hyper regulate constitutional speech suggest that we actually agree with the "public" that what is wrong with this country is the constitution and the lawyers who uphold it. |
| COMMENT: (received 9-1-08) Having begun to read other's comments online, I feel a need to respond. To the issue of lawyers showing up in hospital rooms uninvited, I believe that is already prohibited. The problem is not the lack of a rule, but rather the lack of enforcement. However, I wish we could get the insurance industry to establish a similar set of self-governing principals. I have had several clients who had insurers offering a pittance and demanding injured victims to sign releases while they were still hopped-up on pain meds. You know, to some extent, the lawyer in the hospital is simply informing a victim of his rights - a service that I am confident the insurance adjuster will not perform. Also, of all the stories of lawyers showing up in hospitals, were they reported? Were the lawyers there at the request of a family member or friend? Surely there is a reason we are not reading about these ambulance chasers in the bar bulletins. |
| COMMENT: (received 9-1-08) I wholeheartedly second the comments made in the letters from the members of the Tolbert Beadle & Musgrave firm. I urge all members reading these comments to read the letters. I likewise urge the committee to read the letters, and engage in thoughtful self-reflection. I too wonder about the genesis of the perceived need for additional burdensome rules. I was glad to see reference to an actual study which confirmed what I believed, to the contrary to what the rules committee seems to believe - that negative perceptions of the legal community comes from movies, tv shows, news accounts, actual interactions with the court and lawyers, and very little from advertising. |
| COMMENT: (received 9-2-08) I am unsure of whether the rules committee is going to make any recommendation to the board of gov on this proposed rule (the 6 sec oral disclaimer) or whether that has already been done. Question: what is the status as regards the rules comm. input……..is this already a recommendation even though the bar still has “input”………is this input for the committee or for the board of gov. ?? Question: this is a very big deal for a lot of firms who advertise in other areas than injury law……so, is there going to be some opportunity to appear either before the rules committee or before the board of gov to present the case against this proposed rule? Or, has decision already been made and is this just a process for the bar? I request you copy my letter to you on sept 1 on the 6 sec issue to all rules comm. members…..will you do that? If not, please advise so we can get out input to them. |
| COMMENT: (received 9-2-08) Spent this labor day afternoon listening to your 15 min comments on the bar site on subject of lawyer ads. We have done tv ads here in Columbia for several years and try to do them in good taste and with rule compliance. The proposed rule requiring a 6 second oral disclaimer(it takes 6 seconds to say The choice of a lawyer,etc……..in a normal voice) is unreasonable as it destroys and effectively bans any 15 sec ad as is 40% of 15 sec ad and is 20% of a 30 sec ad. We do 15 sec ads on variety of legal information topics: 1.issue of whether you have underinsured coverage if you suffer great damage by someone with minimum coverage 2. Use your seat belt to protect yourself and your claim 3. Don’t sign important legal document without your own counsel…….and, there are many others all of which help educate and inform the public. After we ran the ad about the underinsured coverage, several local lawyers thanked me as they checked with their agents and they had no such coverage. Commercial legal advertising is legal and cannot be destroyed and incapacitated by overzealous regulation we oppose and ask the opportunity to appear before the committee to discuss this point. We ask you to delete the oral disclaimer in proposed 4-7.2(g)(iii). |
| COMMENT: (received 9-2-08) Draft Rule 4-7.1 (n) states any advertisng which vilifies a potential party or adversary is misleading. Vilify means to "speak very badly" about someone. If a person speaks truthfully but, "very badly" about a potential party or adversary, it is still misleading. Recently, an insurer was held in contempt for failing to produce certain records. After many days and millions of dollars of fines, jutice was finally done but, was delayed. So, now the insurer may file a complaint against an attorney or firm if the attorney or firm mentions such slash and burn tactics by the insurer or its counsel in any advertising as a possible reason to hire an attorney in an accident claim. I have practiced criminal law and used ads advising criminal accused to not waive their right to remain silent or their right to an attorney because part of the police's job is to put people in jail. Some have put it more crassly; "Don't talk, you'll walk!" Now somebody could claim "vilification" and file a complaint, wasting attorney's time and resources and possibly running up insurance rates due to frivilous complaints which have to be reported to carriers. Oh, and harming my potential client and the administration of justice. The rule is ambiguous, and certain to pose a prior restraint upon truthful statements to the detriment of the public obtaining useful information and advancing the interests of those wishing to prevent the public's use of counsel in a potentially adversarial situation. It is harmful if one cannot know on the face of the rule what the rule proscribes. It is harmful if one potential party or adversary has a prior restraint upon them regarding truthful statements and the other has no restraints or compulsion to be truthful. We would have to sit and take it when insurers rant about "lawsuit abuse" but, under the new rule cannot place contrary content in any lawyer advertising about abusive insurers' practices which may make it more necessary for potential claimants to hire counsel. To the degree the proposed rule is intended to prevent "misleading" advertising, any perceived benefit is far outweighed by the burdens placed upon lawyers' speech, the rule's ambiguity, and the unfairness to the public as potential clients of an attorney. |
| COMMENT: (received 9-3-08) Proposed changes making it more difficult for law firms to reach a target audience through television ads is problematic in ways that may not seem evident, on surface. Many folks are not even aware that they can utilize the services of a lawyer on a contingency fee basis, but for the television advertising that advises them of such. These folks may not have the knowledge or means to call "lawyer friends" to advise them of the prospect of hiring a lawyer on a contingency fee basis--the only realistic way many folks of limited means can actually avail themselves of counsel. These additional restrictions on advertising which advises folks that they can hire a lawyer on a contingency fee basis will serve to merely diminish, ultimately, the availability of counsel to folks of limited means and resources. |
| COMMENT: (received 9-3-08) I can’t seem to find any harm in these advertisements. The people that are helped by these advertisements don’t seem to be complaining…so what’s the harm. I work for a firm that advertises and I know from personal experience that they help so many people realize that there is help out there….that they aren’t alone in their legal battles. If it weren’t for our or other law firm commercials, they would be stranded not knowing where to turn. If these advertisements are banned or have too many restrictions, please think of all of those that would be affected. Not only the companies that use advertisements to reach their consumers, but also the companies that help produce the advertisements, the businesses that are getting paid to run the advertisements, etc. This will affect so many people and for what reason? |
| COMMENT: (received 9-12-08) The proposed changes to Rule 4-7.3 are onerous. As some comments have already discussed, many law firms, especially those engaged in criminal, traffic or domestic practices, use Case.net to generate direct-mail advertisements to solicit clients. These advertisements are only effective when sent in large volumes. As such, the added cost of mailing a duplicate along with an affidavit is at least double. Moreover, as these advertisements are generally form letters, the Bar will have thousands and thousands of pages of duplicate advertisements, where only the address has changed. Once collected, what purpose will these copies and affidavits serve? The law firm is already required by rule to maintain a copy of the advertisement in the event a complaint is lodged. Lastly, the affidavit only reaffirms that which the lawyer must already include in the letter, i.e., how the law firm learned of the individual's need for a lawyer, and to swear that the letter is truthful--an averment which was already made when we were admitted to practice. |
| COMMENT: (received 9-13-08) Because Missouri is not among the seventeen states with a mandatory ethics code for mediators, you may want to consider how these rules affect a lawyer-mediator. If you want citations to those rules for purposes of comparison/consideration, let me know. Typically, the mediator ethics codes require the mediator to be truthful in advertising and solicitation of mediation work. That's about the extent of the limitations. Under that broad limitation, some advisory ethics opinions (mostly out of Florida) say that the advertisement should describe mediation accurately, the mediator should not say he or she is "certified" unless the state actually has a "certification" program, and the mediator should explain fees carefully so parties are not surprised by the billing. Rules governing mediator impartiality may limit soliciation of future work during or after the mediation. The mediator advertising rules do not limit the use of trade names (which many lawyer advertising rules do). Many lawyer-mediators use a trade name for their practices. Consider for instance the advertising on behalf of lawyer-mediators conducted by U.S.A.& M. Good practice suggests that lawyer-mediators use separate letterhead, business cards, etc. for their mediation practices. This approach may or may not tie into the goals of the advertising rules. Finally, I am not sure that advertising per se has undermined the reputation of lawyers. People are exposed to many other media representations of lawyers that are not flattering, including Boston Legal. In my neck of the woods (the central Applalachia mountains), Pikeville, KY has a lawyer bill board advertising about every two miles. Some of them are creative, funny, and clearly designed to help impoverished people get the legal services they need --black lung, disability, social security, PI, etc. Rules against hospital solication are another matter all together, because of the power imbalance involved and the difficulty someone in that situation may have in resisting the soliciation. On the other hand, people can just drive by the billboard. I'd be careful creating rules that are elitist in effect. Virginia bans billboards, so the lawyers seeking to help the same folks must get their messages out through more expensive TV ads. Alternatively, they can rely on less effective Yellow Page ads. I'd also be careful about making rules that render lawyers less competitive in a market in which people can use other professionals to do many of the things lawyers can do. See the latest issue of the ABA Magazine for an article on that issue. Moreover, people can find "kits" on-line that provide good help for simplier cases. According to some anecdotal evidence, nearly 50% of all divorces involve two pro se parties and 80% involve one pro se party. We need to be capturing or recapturing these markets. People need us, but perceive us as a luxury item. |
| COMMENT: (received 9-15-08) Ban advertising NOW! It is destroying the profession. Advertising enables the worst attorneys to make the best look terrible. I have been in practice for nearly 20 years and I have never advertised. Yet, I have been forced to view attorney advertising on public stalls in restrooms. The radio ads are shocking, promoting an "in" with judges and get out of jail free cards. ALLOW NO ADVERTISING. That is the only way that advertising can be enforced. |
| COMMENT: (received 9-15-08) I have taken my comments into action by redrafting the preamble to be less wordy and, hopefully, more clear and positive!. I also deleted the rule granting permission for attorneys to "inform" (or rather brag) about past case results. Case results do not necessarily have anything to do with the attorney. Such attorneys, to my knowledge, fail to mention the attorney's losses. So, permitting attorneys to brag about "their" results without requiring "their" losses is categorically misleading and disruptive to our profession. Good results are great for the clients to receive, but lawyers bragging about results is not professional and gives the public the wrong impression, i.e. monetary results is what lawyers are all about. Please click here for the edits. |
| COMMENT: (received 9-26-08) Having read the comments in their entirety I find it troubling that many of the objections to these proposed changes are to the loss of employment at personal injury clearinghouses or revenue for broadcasters. There is no basis for that either of these things will occur and the suggestion that they will appears to make employment or revenue more important than the public's faith and perception of our civil justice system. If the argument is about the Constitutionality of these proposals, fine. However, to suggest that attorneys at the firms who routinely run television and radio ads will lose money and thereby fire callscreeners and the multitude of employees who handle the intake of these clients degrades the better arguments and reveals the true motivation behind the advertising in the first place. |
| COMMENT: (received 9-27-08) These program materials may provide a quick way into the relevant case law on lawyer advtertising. It is a bit dated. Philip M. Damashek, Advertising a Personal Injury Practice, Practising Law Institute, 439 PLI/Lit 67 (July 16, 1992)(on Westlaw). |
| COMMENT: (received 9-29-08) Advertising is here to stay. There is no way around it. Its not just our profession, we now see advertisements for hospitals, dentists, surgeons, etc. . . The only reason that our profession has been "cheapened" is b/c we allow politicians, talking heads and others to disparage us without response. We have allowed those people to pin the sins of government and political failures to our coats by allowing them to blame us for societies' ills. Doctors don't seem to suffer the same loss of esteem due to advertising, nor do hospitals, dentists or accountants. ONLY WE CAN CHANGE THE WAY IN WHICH WE ARE PERCEIVED!!!!!! Most of the advertsing for lawyers seems to show lawyers willing to work for people who have been wronged or damaged by others negligence or intentional acts. Those ads, such as Brown & Croupen or the Petersen Law Firm (I don't work for either), talk about how insurance companies try to take advantage of people WITHOUT representation. THAT IS A SERVICE TO ALL. I am betting that those people who are for restricted advertising work for defense firms or corporatations. Its a fact that only a SMALL % of people with actionable claims (especially in employment law) will actually visit with a lawyer to seek representation. The vast majority will just sit back and take it due to their own ignorance. We've all lived with the notion that knowledge is power, that is one of the reasons Ben Franklin touted public libraries and public schooling for Americans. In this case, lawyer advertising provides knowledge and information to the public and it would seem that the large corporate lawyers would prefer the unwashed masses stay ignorant of their right to representation! |
| COMMENT: (received 9-29-08) The ranks of legal bloggers are growing and it would be helpful to get some guidance on what sort of blogging is considered advertising. My own criminal law blog is all news, comment and stories about the criminal law. I do not consider it advertising except in the same sense that authors of books and articles are placing their name and work before the public. Most legal blogs are protected speech, and unless they are actually hawking legal services they should be considered such. My one concession to someone who may like what they read--and want to hire me--is a single link (I have many legal-related links) to my law practice website, which of course has enough disclaimers, warnings and contact information to make you dizzy. |
| COMMENT: (received 9-29-08) A second suggestion. I notice how the advertising section seems always to get longer. Here is a way to shorten it and increase respect for the profession at the same time. Dump the part of section 4-7.2(g) that says: “The choice of a lawyer is an important decision and should not be based solely upon advertisements.” I have never met ANYONE who did not already know these two bits of information. This line is so insulting to potential clients I am ashamed to put my name with it. Instead, I always preface it with the words: "The Missouri Supreme Court requires the following notice:" I know, that's even more useless words, but maybe the reader will realize that their government--and not me--is the responsible party for this purposeless, annoying warning. Thanks for the chance to share my thoughts. |
| COMMENT: (received 10-2-08) All commercial advertising should be resticted/regulated closely. It likely cannot be prohibited due to decisions which suggest it is free speech, or to that effect, but, we look like used car salesmen, like a bunch of charlatans out for the big bucks when allowed to advertise as we do. Professionalism is lost when advertising is allowed, so, it should be resticted as much as is possible to preserve the profession (as opposed to the business of law). |
| COMMENT: (received 11-17-08) I generally approve of the rule changes. I do not approve, however, of the preamble, which I think will simply cloud the issues. I also do not approve of the language that prohibits advertisements that "vilify" an opponent because I think it is too vague. Finally, I do not approve of an exemption for legal aid services. I see no benefit to such an exception and I believe that it gives the wrong impression. The choice of an attorney, regardless of fee, is an important one. Assuming that statement to be true, as the Committee apparently does, we must respect that importance regardless of who is doing the soliciting. |
| COMMENT: (received 11-20-08) I AM A LAWYER AND HAVE BEEN A MEMBER OF THE BAR FOR MORE THAN THIRTY YEARS. I’M PROUD OF MY PROFESSION AND I’M PROUD OF WHAT I DO FOR MY CLIENTS. THROUGH MY LAW FIRM I EXERCISE MY CONSTITUTIONAL RIGHTS OF FREE SPEECH AND ADVERTISE MY SERVICES TO THE PUBLIC HONESTLY AND TRUTHFULLY. AS A RESULT WE’VE MADE THOUSANDS OF PEOPLE AWARE OF RIGHTS THEY NEVER DREAMED THEY HAD AND THEN HELPED THEM GET THE RIGHTFUL COMPENSATION THEY DESERVED. WE GO TO GREAT LENGTHS TO ADVERTISE ETHICALLY. FOR MORE THAN TWENTY FIVE YEARS WE HAVE CONSULTED WITH ONE OF AMERICA’S FOREMOST LEGAL ETHICS EXPERTS TO REVIEW AND APPROVE ALL OUR ADVERTISEMENTS PRIOR TO USING THEM. IN ALL THE YEARS WE’VE ADVERTISED WE’VE NEVER HAD A MEMBER OF THE PUBLIC FILE ANY TYPE OF COMPLAINT AGAINST US FOR ANY ADS WE’VE RUN. EVERY COUPLE OF YEARS A FEW MEMBERS OF THE MISSOURI BAR DECIDE THAT ADVERTISING IS “GETTING OUT OF HAND” AND A COMMITTEE IS FORMED TO DEAL WITH THE “PROBLEM”. THE COMMITTEE “COINCIDENTALLY” IS USUALLY MADE UP OF THE SAME FEW BAR MEMBERS WHO ARE VOCAL OPPONENTS OF ADVERTISING. BUT DON’T TAKE MY WORD FOR IT TAKE A MEMBER OF THE ADVERTISING COMMITTEE’S ACTUAL DESCRIPTION OF HOW THE COMMITTEE CAME INTO BEING. THE COMMITTEE MEMBER’S NAME IS ... AND HERE’S HOW HE DESCRIBED HOW IT ALL BEGAN. SPEAKING AT A BAMSL MEETING DURING THE LAST ROUND OF ADVERTISING RESTRICTION PROCEEDINGS HERE’S WHAT . . . SAID. . . . TOLD US (WHAT YOU SEE IN PARENTHESIS ARE MY EDITORIAL COMMENTS, THE REST ARE ALL . . .’S WORDS) THAT SEVERAL BAR MEMBERS AT A BAR SPONSORED RETREAT GOT TOGETHER AND LAMENTED ABOUT BAD JURY RESULTS IN ST. LOUIS COUNTY. THEY CONCLUDED, (IN A BLINDING FLASH OF SOME SORT OF GROUP EPIPHANY) THAT LAWYER ADVERTISING WAS A LARGE PART OF THE PROBLEM AND THE ONLY SOLUTION WAS TO TAKE STEPS TO GREATLY RESTRICT IT. . . . THEN RELATED THAT AFTER THIS (REVELATION) THEIR PATH WAS CLEAR, THEY WOULD STUDY AND THEN RECOMMEND THAT THE BAR ADOPT THE METHODS EMPLOYED BY THE MOST RESTRICTIVE LAWYER ADVERTISING STATES TO SOLVE “THE PROBLEM” (I BELIEVE HE MENTIONED FLORIDA AND IOWA). . . . THEN (PROUDLY) STATED THAT WITH NO STUDIES, NO RESEARCH, NO CONSULTING THE PUBLIC THE COMMITTEE MET WITH THE PRE-AGREED AGENDA TO RESTRICT ADVERTISING AS MUCH AS POSSIBLE. THEY NEVER CONSIDERED THE FACT THAT THOUSANDS OF PEOPLE SEE LEGAL ADS EVERY YEAR AND USE THE INFORMATION TO EXERCISE THEIR LEGAL RIGHTS. THEY IGNORED THE REALITY THAT CONSUMER ADVOCATE GROUPS UNIVERSALLY SUPPORT LAWYER ADVERTISEMENTS AND THE VALUABLE LEGAL INFORMATION THEY DISSEMINATE. NO, THIS DULY EMPOWERED COMMITTEE OF THE MISSOURI BAR ACCEPTED AS “FACTS” THE “FEELINGS”, “EPIPHANIES” AND ANECDOTAL STORIES TOLD BY IT’S MEMBERS TO DECIDE FOR ALL THE LAWYERS OF MISSOURI THAT ADVERTISING IS BAD AND MUST BE STOPPED. AS AN ASIDE, AS TO THOSE TROUBLING LOST CASES IN ST. LOUIS COUNTY THAT STARTED ALL OF THIS, WHEN WE OLDER LAWYERS LOST CASES YEARS AGO WE SOMETIMES CONSIDERED OUR OWN FAILINGS AS THE POSSIBLE CAUSE, BUT I DIGRESS. NOW THE SAME COMMITTEE COMES TO THE BAR ONCE AGAIN WITH NEW RECOMMENDATIONS FOR FURTHER RESTRICTIONS TO LAWYER ADVERTISING. THE QUESTION I PUT TO ALL OF YOU IS, WHAT’S CHANGED IN THE LAST TWO YEARS THAT CRIES OUT FOR FURTHER RESTRICTIONS? ALAN PRATZEL OF THE OFFICE OF DISCIPLINARY COUNCIL SAYS THERE ARE VIRTUALLY NO COMPLAINTS FROM THE PUBLIC ABOUT LAWYER ADVERTISING, NOT TODAY AND REALLY NOT EVER, SO THAT CAN’T BE IT. THERE ARE STILL NO SCIENTIFIC STUDIES THAT SPEAK TO THE HARM OR BLESSING OF LAWYER ADVERTISING, SO THAT’S NOT IT EITHER. AS AN ADVERTISER WHO STUDIES THE MARKET CAREFULLY I CAN TELL YOU THAT THE AMOUNT AND TONE OF LAWYER ADVERTISEMENTS HAS NOT MEANINGFULLY CHANGED DURING THE PERIOD, SO WHAT’S REALLY GOING ON? FOR WHAT IT’S WORTH HERE’S MY OPINION. MOST LAWYERS DON’T LIKE LAWYER ADVERTISING, BUT AS MEMBERS OF A PROFESSION THAT REQUIRES AS ONE OF IT’S FIRST OFFICIAL ACTS THE SWEARING OF ALLEGIANCE TO THE CONSTITUTION, THEY UNDERSTAND AND APPRECIATE THE SACRED NATURE OF FREE SPEECH. I BELIEVE THIS GROUP MAKES UP THE GREAT MAJORITY OF THE BAR, UNFORTUNATELY THERE IS A SMALL MINORITY WHO FOR PERSONAL AND BUSINESS REASONS AREN’T SO MARRIED TO THE WHOLE FREEDOM OF SPEECH IDEA. THESE MEMBERS WOULD GLADLY RESTRICT THE RIGHTS OF SOME MEMBERS OF THE BAR TO FURTHER THEIR OWN PERSONAL AND BUSINESS RELATED OBJECTIVES. DESPITE WHAT THEY SAY, THESE MEMBERS ARE DEDICATED NOT TO REGULATION BUT TO ELIMINATION OF LAWYER ADVERTISING. THIS IS EVIDENCED BY THE FACT THAT THEY PUSH OVER AND OVER FOR MORE AND MORE RESTRICTIONS BASED NOT ON ANY CHANGES IN THE MISSOURI ADVERTISING SITUATION BUT BASED ON THEIR DESIRES TO IMPLEMENT SOME NEW AND IMPROVED ANTI-ADVERTISING STRATEGIES THEY’VE HEARD ABOUT IN MORE RESTRICTIVE STATES. LAWYERS OF MISSOURI I ONLY ASK FOR WHAT YOU WOULD ASK OF ME. I ASK FOR HONESTY AND FAIRNESS. ASK YOURSELF, WHAT HAS CHANGED IN THE LAST TWO YEARS THAT NECESSITATES FURTHER RESTRICTIONS? ASK YOURSELF WHETHER THESE FEW MEMBERS ARE JUST USING THE BAR TO SATISFY THEIR OWN INDIVIDUAL DESIRES. FELLOW MEMBERS IS IT FAIR FOR A FEW TO USE AN ORGANIZATION THAT SPEAKS FOR MANY TO FURTHER THEIR OWN PERSONAL AGENDAS. I SAY IT IS NOT. |
| COMMENT: (received 11-23-08) What I currently find truly objectionable is that lawyers lacking competency advertise for cases that they have no intention of handling. This should stop. Another pet peeve I have is that lawyers cannot advertise specialties. For example I am Board Certified by the American Board of Professional Liability Attorneys as well as the National Board of Trial Advocacy. For the ABPLA, I had to pass a 4 hour medical examination and demonstrate that I had appeared in a certain amount of cases, I think it was 50 before I could sit for the exam. While this may not say I'm the greatest lawyer in the state, it does demonstrate a certain level of experience and knowledge which distinguishes me from others who may be fishing for business they should not be handling. I'd like to see this specialty matter addressed if the bar is changing the advertising rules and regulations. People go to doctors who are specialists. They should have the information about their lawyers as well ,beyond patent attorneys and the few other specialties allowed to so state. |
COMMENT: (received 11-26-08) |
| COMMENT: (received 11-26-08) 1. An Audible Disclosure is not Necessary • The current rule requires only a visual disclaimer. The new rule requires an additional verbal disclosure, “The choice of a lawyer is an important decision and should not be based solely upon advertisements.” • Absolutely no statistical data has been offered by anyone that any written or oral disclosure is needed to protect the public and there is no evidence that the current written disclosure has failed to properly inform consumers of the importance of the decision in hiring a lawyer. Let’s ask ourselves this question: Does anyone really believe that the Missouri public is unaware that hiring a lawyer is an important decision? There is no need for any type of disclosure. The written disclosure we have now, which says nothing, should not be expanded. To additionally require a verbal disclosure amounts to unreasonable regulation and violates constitutional protections. 2. We oppose the proposed rule changes to 4-7.2 and specifically the portion requiring an oral disclaimer • We do not believe any disclaimer is needed, particularly a disclaimer that tells the public that a choice of a lawyer is important. Such a disclaimer serves no reasonable purpose in assisting the public in retaining qualified legal representation. • There is no public demand or outcry whatsoever and no one has produced any facts that lawyers who advertise on radio, t.v., newspapers, yellow pages or internet are doing anything to mislead the public into obtaining unwanted or unneeded legal services. • Certain members of the Special Ad Committee have stated publicly that there are no studies or empirical facts whatsoever to support their personal recommendations for this disclaimer. • OCDC reports very few complaints on lawyer advertising and there does not seem to be any outcry from them in favor of this rule. • The general assembly has no desire to regulate lawyer advertising and only got into it last spring because they were asked to do so by lawyers, and then rejected the idea when asked to do so by those same anti-advertising lawyers. 3. Unreasonable Regulation Violates Commercial Free Speech. • Current law permits commercial free speech that is not misleading or false but certain members of the Special Ad Committee want to eliminate and destroy t.v. advertising because of their own personal beliefs and agendas even though it is not supported by law or facts. It is unreasonable to allow these individuals to cause a great disruption without any statistical data or facts and when their recommendations are clearly contrary to existing law. For example, the verbal disclosure takes six to seven seconds which effectively destroys any t.v. ad of five seconds, 15 seconds, or 30 seconds and destroys all radio advertising. The only radio and t.v. ads that would be viable would be 60 second ads and then, 23% of those 60 second ads would be taken by the verbal disclosure requirement telling people that choosing a lawyer is important. • We believe this is an unreasonable regulation violative of several current federal decisions and would not withstand any lawsuit concerning this issue. The current rules should be enforced. If certain members of the Special Ad Committee are unhappy with the current law they should then work to change the law and not try to take people’s rights through the subterfuge of these proposed rules. 4. Any Rules on Lawyer Advertising Should Apply to all Forms of Advertising Including the Internet. • In the very near future there will be no distinction between the internet and broadcast television. Therefore, any proposed rules should be inclusive of all forms of lawyer advertising including print, yellow page, radio, t.v. and the internet. It is unfair to require a very constrictive rule for t.v. ads and not apply the same requirement to the internet. We believe the committee should restudy this area. Why do we want to warn the public that watches t.v. and not warn the millions of users of the internet about the alleged evils of lawyer advertising. • In summary, we vigorously oppose the proposed rule change and, specifically 4-7.2(g)…requiring the addition of the verbal disclosure. Let us enforce the current rules. If someone violates those rules then there should be a complaint filed and an investigation concluded. • We thank all of the members of the Board of Governors for their hard work and ask that they base their decisions on statistical and objective facts and follow the law as we, as lawyers, have sworn to do. Thank you very much. |
| COMMENT: (received 11-26-08) |
| COMMENT: (received 11-26-08) Rule 4-7.2(g) should also clarify how an attorney or firm is to comply with the rule in the context of general law firm websites. Questions that arise include: Whether the disclaimer is required for a general firm website? If so, is it sufficient to provide the disclaimer on the "home page" of the website or is it required on each separate page of the website as some have suggested? Also, any font or size isssues etc. In addition, it would seem that many firm websited do not comply with this rule and clarification of whether compliance is necessary and how to comply would be helpful to the bar. |
| COMMENT: (received 11-26-08) I have been practicing law for thirty years. I believe that our profession began a long slide down a slippery slope when the Bates case changed the long-standing, traditional approach to attorney advertising. There are many members of the Missouri Bar who still believe, as I believe, that practicing law is, first and foremost, a profession. Although most of us earn our livelihood through the practice of law, this fact should not make the practice of law first and foremost a business. Nonetheless, I realize that certain attorneys in our legal community do, in fact, view the practice of law as a business, and those attorneys no doubt will champion an approach that regulates advertising the least. I would urge this Committee and the Supreme Court to take whatever action is possible to regulate attorney advertising so as to protect the public from misleading advertisement, protect whatever trace of dignity and respect for our profession that might still exist, and to protect those of us who choose not to advertise from unfair competition. Almost thirty years ago I witnessed the explosion of attorney advertising in the great state of California, and it absolutely shocked me. The used car salesmen looked better than the attorneys. People respond to the ads by hiring the lawyer or law firm that gets the most air time, or the most repetition, or who claims the best results. Advertising works, obviously enough, but for all of the wrong reasons. Watch all of the Brown & Crouppen television commercials and tell me that this is the image of the law and lawyers that we should be presenting (and presenting, and presenting, and presenting!) "Over a Billion Dollars recovered!" They know exactly what will get the attention of the marks, I mean clients. Review carefully the radio commercials of Cordell & Cordell in which Ozzie Smith, Hall of Fame shortstop for the St. Louis Cardinals touts that business's representation of father's rights, and tell me that the implication was not made that Cordell & Cordell had represented Ozzie Smith when in fact no such thing occurred. There are numerous examples to show that the nature of the advertising beast and the scruples of certain members of our profession will take us where we do not want to go. The question seems to me to be whether it is too late to do much about it? For the sake of the public and the sake of our profession, I hope that it is not! |
| COMMENT: (received 11-28-08) Professor Devine and I were and still are correct, but the United States Supreme Court has the last word, so some of your amendments may be unacceptable but try anyway. Seems to place additional burdens on DC office which seem to be only formal requirements without much effect. Suggest that a formally approved "ad for legal services" for TV, print, audio and video be developed which would be the guideline for DC intervention--and anyone who failed to comply would do so at their peril with stiff monetary fines for violations. If the ad agencies make good money on the lawyer perhaps they will help with the penalties. Frankly, first amendment rights as interpreted will allow most anything--please do not disturb DC office with burdens which all members will have to pay for with additional staff. |
COMMENT: (received 12-1-08) |
| COMMENT: (received 12-1-08) Yes, the practice of law is a "profession." If you go to www.dictionary.com, and type in the word "profession," you will see that most of the dictionary entries define "profession" as an "occupation." So what does that mean? It means that practicing law is our job; it's what we do for a living, and it is a business. So whether you call it a "profession" or an "occupation" or a "career" or a "business", the practice of law--for the practicioner--is what it is. It is our way of making money to provide for our families, pay our debts and obligations, and hopefully provide for our retirements. And because the practice of law is my job, my career, my occupation, my business, and dare I say my "profession", I should be able to openly compete in the legal market, and advertise my wares, with the least amount of restrictions and regulations as possible. We already have rules in place, as well as consumer protection laws, to help ensure against false or misleading advertisements. I think many of the extra restrictions and regulations for lawyer advertisements are ridiculous. For example, why is it necessary to have a disclaimer that "the choice of a lawyer is an important decision and should not be based solely on advertisements"? It's not as if someone reads an ad or watches a commercial and suddenly decides irrevocably to hire one lawyer over another. Besides, even if the consumer DID make an absolute decision to hire an attorney based solely on an advertisement, it remains that the attorney must choose to represent the client. Moreover, the decision really isn't made to hire an attorney until there's been a meeting, rates are discussed, etc. The purpose of the advertisement is to increase awareness of the lawyer's business--oops, I'm sorry, his or her "profession"--and thus allow the lawyer to become or remain competitive in the market. Advertising gets a phone call, or a letter, or an email, etc.; it is smplpy a way to get members of the public--many of whom are facing legal issues for the first time in their lives--to contact the attorney about his or her services. Let's face it, there are thousands of us out there. Some of the more seasoned attorneys have a referral base, have an established practice, and perhaps a steady flow of new clients. For us new guys, though, who don't have any one in our families practicing law, and who don't have a networking base, and who need to find a way to get our name out and BUILD a client base, advertising is the way to go. Sorry, but I can't pay back my student loans and meet my monthly obligations by sitting back and waiting for referrals to trickle in. I need to have a steady flow of new clients, and that flow is best tapped through effective advertisements. So the only regulation that I think needs to be in place is to outlaw deceptive, false or misleading advertisements. Just as other industries are free to commercially advertise their products and services, lawyers should be free to advertise without all of the unnecessary restrictions. |
| COMMENT: (received 12-1-08) A spoken disclaimer is not feasible when advertisements are only 10 to 15 seconds in length. TV advertising sales personnel often suggest that after a 30 second ad is shown a few times times, then a shorter lasting ad can be shown. The shorter lasting ad will be just as effective as the the longer original ad, because the viewer has now become familiar with the what the attorney has to say. Obviously, the shorter ad is cheaper and since airtime is expensive, attorneys would like the option of playing the shorter ads, when appropriate. |
| COMMENT: (received 12-1-08) I oppose that portion of the proposed rule which requires Missouri lawyers to first speak the words “The choice of a lawyer is an important decision and should not be based solely upon advertisements” in television advertisements. The Missouri Constitution, Article 1, Section 8, states as follows: Section 8. That no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts. Does a Rule of the Supreme Court of Missouri, requiring that I first speak the words “The choice of a lawyer is an important decision and should not be based solely upon advertisements” in television advertisements before I may exercise my liberty to speak whatever I will, constitute a law impairing my freedom of speech? Yes. When I am required to speak certain words before I may speak whatever I will, I am not speaking whatever I will. Quite the opposite, I am speaking words I am forced to speak before I may speak at all. This proposed rule is so burdensome that many lawyers would refrain from television advertising if it were enacted. These words contradict the purpose of the advertisement, take seven of the thirty seconds to say, and make the lawyer sound foolish. As such, it is a pretext for banning television advertising by Missouri lawyers and unconstitutionally deprives me of my liberty to communicate whatever I will on any subject, no matter by what means communicated. |
| COMMENT: (received 12-1-08) I am opposed to further regulation of attorney advertising. Advertising is a means to reach many people who may not otherwise have access to legal counsel. Increasing the number of people with legal access enhances the legitimacy of the system and the nobility of our profession. |
| COMMENT: (received 12-1-08) The proposed changes are greater than necessary to prevent the imagined harm. |
| COMMENT: (received 12-1-08) I would like to address the specific rule changes applicable to direct mail solicitation. More specifically the rule change that would require an attorney advertiser to make a determination as to whether a potential recipient is already represented by counselbefore mailing an envelope: how ridiculous. What sort of means are at an attorney's disposal to make such a determination. Perhaps the attorney should make a brief telephone survey of local attorneys to see if an individual is thus represented. Have you seen the telephone book lately??? Perhaps the bar should require broadcast advertisers to make a similar determination as to whether viewers are already represented before interrupting Opra or jerry Springer in the afternoon. As to the additional requirement that an attorney provide the bar with an affidavit detailing the source of information as to the mailing, the reliability therof and the the truthfulness of the representations contained in the print advertisement... all equally ridiculous... Is the bar prepared to examine each submitted document, file it and store it for posterity? Can you imagine the waste of paper and man hours... the trees destroyed in the process.. Lets reexamine this poorly reasoned proposal before turning it loose on the bar. |
Letter from Law Offices of Jane Cohen, LLC (August 8)
Letters from the firm of Tolbert Beadle & Musgrave LLC (August 15)
Letter from Missouri Broadcasters Association (August 19)
Letter from KSFX-TV (August 22)
Letter from Mark Gordon of KOLR10 (August 25)
Letter from Aaron Sachs & Associates, P.C. (August 29)
Letter from American Civil Liberties Union of Eastern Missouri (August 29)
Letter from Fellows & Blake, L.L.C. (August 29)
Letter to Members of the Special Committee on Lawyer Advertising (received in August)
Letter from Roy Bertram True (received in September)
Letter from John L. Davidson (September 13)
Letter from Emory Melton (September 25)
Letter from Timothy J. Smith of Rudman & Smith LLC to Mark Levison (September 30)
Letter from Timothy J. Smith of Rudman & Smith LLC to Jennifer Joyce (September 30)
Letter of Response from Eric J. Wulff to Timothy J. Smith (October 3)
Letter from Advisory Committee of the Supreme Court of Missouri (November 13)
Letter from Office of the Chief Disciplinary Counsel (November 17)
Letter from Legal Services of Missouri (November 18)
Report to The Missouri Bar Board of Governors from the Civil Practice and Procedure and Tort Law Committees (November 20)
Letter from Legal Services of Missouri (November 25)
Supplemental Letter from Legal Services of Missouri (December 19)
Letter from Ron Netemeyer and Milt Harper (November 26)
Letter from William J. Champion, General Counsel to the Yellow Pages Association (November 26)
Letter from Mark D. Pasewark (December 1)
Letter from Missouri Broadcasters Association (June 25)
Letter from Chief Disciplinary Counsel Alan Pratzel (July 13)