Avvo’s general counsel Josh King proposes this rule for the regulation of lawyer marketing:
Ultimately, in the absence of consumer harm – and, indeed, a crystal-clear fit within the law’s prohibitions – states should never find that lawyer marketing practices violate their rules.
Josh’s reasoning is Constitutional—I gather from his post that the First Amendment allows lawyers to do whatever they want as long as the State Bar can’t prove that anyone has been hurt by it.
Given his job, I’m fairly confident that Josh knows a lot more about the First Amendment and lawyer advertising than I ever will. I’m not going to argue about the Constitutionality of lawyer marketing.
But I will say that, for the profession of lawyering, “No blood, no foul” is a really crappy rule.
Here’s Josh again:
Anyone coming to the world of lawyer marketing from a consumer product background would be stunned by the state bar rules governing lawyer advertising. The vestigial remains of the courtly days before lawyer advertising, these rules are typically a mix of picayune detail and over-expansive reach, an attempt at lawyer exceptionalism in our 21st century media landscape.
This is exactly why we say “outsource your marketing, outsource your ethics and your reputation”: because, to someone not steeped in legal ethics, the rules are a surprise. If you are a lawyer who hires a marketer to do your marketing, and if that marketer is not a lawyer, chances are that he is not going to be familiar with the rules applicable to you, and chances are that he is going to screw them up, and you will be held responsible, either ethically or reputationally.
Am I engaged in “an attempt at lawyer exceptionalism”? Absolutely. 21st Century media landscape or no, lawyers are, and should be, exceptional. We have been given gifts—above-average intelligence, the opportunity to receive an advanced education—that the vast majority of people could never hope to receive. Further, society has given us a protected franchise: if an ordinary person tries to practice our art, he can go to prison. People entrust us daily with their lives, their fortunes, and their freedom.
Surely, in light of the exceptional advantages and responsibilities we’ve been given, it’s appropriate that higher rules be applied to lawyers than to those hawking Ginsu knives?
No. The marketers think that the same rules should apply to advertising lawyers as to used-car salesman. Law, to them, is a business governed by the rules of business, rather than a profession governed by its own higher rules. In the minds of the marketers that’s just peachy, since law-as-profession is just another way of saying “lawyer exceptionalism.”
As profession turns to business—as Josh’s “courtly days before advertising” pass—the first people to forget that lawyers are exceptional and have a special duty to the public as a result are the lawyers themselves. They still have all the power and responsibility, but they act as though they are promoting wrestling matches. Which is bad for the profession, bad for the clients, and bad for society.
I am in favor of lawyer exceptionalism not because lawyers should be treated with special respect, but because lawyers should treat people with special respect. In our “21st-Century media landscape” lawyers need to be reminded that they are exceptional, that they have a sacred trust, and that lawyer advertising should be not merely undeceptive, but beyond reproach.
The message that “no blood, no foul” sends is the opposite of that needed reminder.