A committee of lawyers ready to hear anything you have to say on the subject of regulating how lawyers advertise? Enticing? Despite the free coffee and pastries, the public did not turn out en masse for the public comment period about the 97-page "Draft Report and Recommendations of the Study Committee on Lawyer Advertising." Well, maybe they just didn't get the word—the report says "Notice was ... formally published 30 days in advance in both the Reno-Gazette and Review-Journal." (Maybe, if they had thought to send a listing into Las Vegas Weekly our readers would have swarmed the Sawyer building, especially if they'd mentioned the free Danish. And these are the advertising experts?)
In fact, the only member of the "public" to turn up at the meeting to speak was a lawyer, Adam Stokes, owner of Ticket Busters, which proclaims on his business card in all caps and huge lettering, "NO COURT, NO TRAFFIC SCHOOL, NO INSURANCE INCREASE" before concluding with a far tinier font, in parentheses and only the occasional capital letter, "(In Most Cases)."
Before Stokes speaks, another lawyer congratulates him on getting the phone number of 444-4444; I guess because you can remember a number like that even after being nailed for a DUI.
Stokes turns out to be concerned about advertising discount contingency fees. That is, he's upset that some lawyers are offering to take a low percentage of what a client is awarded in a trial or settlement to lure people in the door. But, Stokes notes, these offers often have fine print that puts an expiration date on that low-percentage contingency after which it rockets up and that date—no surprise—conveniently falls far shorter than the time litigation reasonably takes. But pressed to name specific examples, Stokes offered none. He may not have examples—but he does have a solution: Ban mentioning contingency fees in all advertising. Stokes doesn't seem concerned that this would also conveniently prevent any lawyers who really do want to offer lower contingency fees from advertising altogether. But it doesn't matter, because the matter has already been addressed in a section subparagraph underlined for emphasis in the report:
"A lawyer who advertises a specific fee or range of fees shall include all possible terms and fees, and the duration said fees are in effect. Such disclosures shall be presented with equal prominence."
This committee ain't messing around. This effort has been going on for more than a year. In fact, the first few pages of the report are dedicated to memorializing the tedious history of revising regulations for lawyer advertising. The Nevada Supreme Court birthed the committee on December 16, 2004, when it gave the State Bar of Nevada the mission: "to review the Supreme Court Rules governing attorney advertising and determine whether amendments are warranted in whole or in part." A month later a strategy session was held by phone and it was decided to allocate $10,000 to the quest (this may be responsible for the pastry and coffee largesse). On March 24, 2005, the first actual meeting of the committee (made up of about 20 lawyers, judges, law professors and even a token "lay member") was held, and it was agreed to divide the group into five subcommittees. You can see where this is heading.
And so, many meetings and months later we get the 97-page report and the chance for all to have their say before it's passed on back to the Supreme Court, which hopefully hasn't forgotten that they asked for it way back in 2004. I'm no lawyer, but from my understanding of the recommendations, the Nevada Bar has done pretty well for itself here. For example, while they used to wait for complaints to assure that all advertising meets the guidelines, the report suggests that the Nevada Bar be assigned to screen every last piece of it. That's a lot of work for the Nevada Bar. But lawyers who advertise are responsible to submit along with every advertisement to be screened by the State Bar a $200 fee. But that is nothing compared to the penalties were a lawyer not to submit an advertisement to the Bar. And my reading of the document seems to say that while the rules are ultimately to be implemented by the Nevada Supreme Court, it isn't the taxpayer who gets the money from rule violations—but the State Bar of Nevada. Call it $10,000 well-spent.
Of course, people put a lot of faith in lawyers, and deceptive advertising can do tremendous damage to people's faith in the legal system; so perhaps this sort of regulation is a necessary evil of the times. So why the slow pace, if deceptive advertising is a huge problem that needs to be addressed?
In fact, according to a separate report by Bar Counsel Robert W. Bare submitted with the main report (oh nothing—nothing—is simple), the problem seems actually quite small considering the resources and time dedicated to it. Bare notes that his office "receives an average of 1,200 complaints per year ... Of those approximately 60 deal with advertising ... Of those ... about 20 are filed by clients. The remainder is filed by attorneys, whom it should be noted are often (but not always) competitors." So, in short, 20 members of the public complain about lawyer advertising in a given year. Maybe that's how the Bar came up with the idea of putting 20 people on the committee to study it for over a year? And what's being done about the 1,140 complaints on other topics that include how lawyers practice law? The report does not say.
If you're starting to suspect this is all a big waste of time, General Counsel Allen Lichtenstein of the Nevada chapter of the American Civil Liberties Union is with you. He points out that there are already laws that prevent any business from presenting false and misleading advertising and that lawyers are covered by those laws, as well as protected by the First Amendment. "The standard for lawyer advertising needs to be 'Is it misleading or false?' If it is not false or misleading then it is not an area for regulation. I think the Bar is spending a lot of time doing things that are nonsensical. If it is not false or misleading I don't really see the Bar Association or any other regulatory body having an interest it."
As if to underline the point, the day after the Bar's empty public forum for the public, attorney Glenn Lerner announced his intention to sue the Bar for requiring him to refer to himself in advertising as "a heavy hitter" where he had been calling himself "the heavy hitter." According to Lerner, "I have never had a complaint from an individual about my advertising. It has all been either insurance companies or other attorneys. Is that what the Bar is meant to do? Even the playing field for attorneys who aren't as good at their marketing?" Of the lawsuit, Lerner says, "This is something that is necessary to assure that my freedom of speech is protected. The 'a—the' thing just shows how ridiculous all of it is. That lets you know where the Bar stands. The main issue is, 'Can the Bar control my content if it's not false and misleading?' No they can't. No they can't."
The ACLU agrees with Lerner. "When you start getting into questions whether Glen Lerner can call himself 'the heavy hitter' or 'a heavy hitter' this is not an area for regulation," Lichtenstein says. "If the legal profession is concerned about its image, more attention should be paid to the quality of the work and how clients are served and less about advertising."