Legally Speaking: Must Sue TV

John G. Browning Jun. 17, 2008, 9:00am

Whenever I'm at a social or civic function, negative comments from people about the legal profession often appear to have a common source – television.

For some, commercials for lawyers are particularly distasteful, and lawyer advertising in general has probably accounted for more negative perceptions of the profession than most factors.

In fact, the Web site even announced its own video contest, challenging visitors to its site to create their own spoofs of personal injury attorney TV commercials. The winner gets $1,500 in addition to immortality on YouTube.

Sometimes, it's not just the advertising itself or the medium, but the timing of attorney advertising that offends sensibilities.

Case in point – the tragic Imperial Sugar refinery explosion earlier this year in Port Wentworth, Ga. Even as crews were still fighting to subdue the thick masses of molten sugar bubbling at temperatures as high as 4,000 degrees Fahrenheit, and even as rescue workers were trying to reach the last of the victims' bodies, personal injury lawyers – many of them from out of town – were trolling for plaintiffs.

Mark & Associates, a New York-based law firm, snapped up the domain name, equipping their site with details of the blast, links to news updates, and of course a handy little form where victims can get in touch with the firm's attorneys (the site was later taken down).

One Texas attorney took out a newspaper ad, reminding potential claimants that the plant's owners have lawyers, so "shouldn't you?" Dallas attorney Jeffrey D. Slakter took out a full-page ad in the Savannah Morning News, complete with disturbing images of the explosion's aftermath, and highlighting the fact that Imperial Sugar was a deep pocket, with net sales of over $875 million. As families were trying to grieve, advertising like this was taking place.

State Bar officials received reports of lawyers trying to solicit the families of injured workers at an Augusta, Ga., burn clinic. The feeding frenzy prompted Georgia State Rep. Wendell Willard – himself an Atlanta attorney – to condemn the solicitations.

"It's unseemly, and it gives us all a bad name," he said from the state House.

While the State Bar of Georgia prohibits lawyers from in-person solicitation, and forbids sending letters to victims within 30 days of a tragedy or accident, there are no comparable rules governing advertisements.

Savannah Morning News editorial page editor Tom Barton wrote in an op-ed piece that "These slicksters know that when people are emotional train wrecks, then they're vulnerable to hard-sell pitches. They also know that blue-collar workers and their families may not be savvy negotiators when it comes to striking a deal and signing on the bottom line."

Good point, Tom – but where was that sense of moral outrage when your paper accepted Jeffrey Slakter's money for that full-page ad?

Individual states do indeed regulate lawyer advertising, balancing the interests of good taste with a lawyer's free speech rights. However, the result can be a confusing hodgepodge of rules that vary greatly, leading to a situation where a lawyer ad that is perfectly acceptable in one state won't pass muster in another.

Syracuse, N.Y., attorney James Alexander, for example, ran humorous TV spots for his firm showing lawyers providing counsel to aliens who crashed their flying saucer and lawyers towering like giants over the city, stomping around downtown like Godzillas in pinstripes. He ran afoul of New York bar regulations that prohibit "patent falsities" in ads.

In Kentucky, South Carolina and various other states, the amusing ads would be just fine. But as the humorless assistant New York attorney general pointed out, "It cannot be denied that there is little likelihood that [the lawyers] were retained by aliens [or] have the ability to leap tall buildings in a single bound." Gee, you think?

Florida has been among the most vigilant in overseeing lawyer advertising, prohibiting slogans, jingles and "manipulative" visual depictions. And don't count on using an animal in your ad in Florida. In 2005, the Florida Supreme Court upheld the Florida Bar's ruling against Fort Lauderdale personal injury lawyer Marc Andrew Chandler, who had used ads featuring a pit bull.

Holding that pit bulls conjure up images of viciousness, the Supreme Court said that "images of sharks, wolves, crocodiles, and piranhas could follow." The Florida Bar has already nixed ads with images of a fierce tiger roaring without sound as well as a shark in attack mode. Curiously enough, other law firms have images of panthers and lions, albeit not roaring or attacking.

An increasing number of states, including Florida and Texas, require lawyers to submit their advertising in advance for review.

However, advertising isn't the only thing on television that affects public perception of lawyers. Look at how lawyer shows on TV have changed from the stalwart legal eagles like Perry Mason to the ethically challenged Denny Crain and Alan Shore of "Boston Legal."

According to UCLA School of Law professor emeritus Michael Asimow, studies show that "people can be shown to internalize the information from fictitious shows;" as a result of shifting portrayals of lawyers on TV, he says, "Lawyers are the most hated and distrusted of all professions, and that wasn't always the case."

Lawyers need not look too far for ways to improve the image of our profession. After all, state bar associations are charged with the responsibility of regulating lawyer advertising, and they can certainly do a better job of it.

And as for the lawyers' portrayals on TV shows, don't think for a moment that they can all be attributed to a bunch of Hollywood writers who don't know any better. William Fordes is a lawyer turned scriptwriter who's worked on a number of TV shows, including "Law & Order."

He candidly confesses that he doesn't care about whether lawyers are depicted in a positive or authentic light, instead stating "I write about what amuses me."

Bill Chais, a lawyer who now writes for the CBS legal drama "Shark," agrees that accuracy often falls victim to creative license. "I learned quickly that you have to do what is necessary to make a scene interesting," Chais says.

Craig Turk, a lawyer who is now a producer on the ABC series "Boston Legal," probably knows more than most about shaping public perceptions. His previous gig before leaving the practice of law was as chief counsel to John McCain's 2000 presidential campaign.

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

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