In Favor of Lawyer Exceptionalism

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.

13 Comments

  1. Mark, my point is purely a legal one. No matter how badly they’d like to, the First Amendment prohibits bars from regulating attorney marketing absent a substantial state interest, a showing of consumer harm and narrow tailoring of the regulation to address the consumer harm.

    Despite knowing this, many bars still attempt to regulate attorney speech using the “dignity of the profession” argument, which doesn’t fly constitutionally. That sounds a lot like what you’re advocating here.

    However, there’s no reason attorneys can’t aspire to professionalism, and heap derision on those who use sleazy marketing tactics. And as consumers get access to more information about attorneys and the legal industry, the return from such marketing should be greatly reduced.

  2. Actually, I believe it was “NO PROOF” of blood, no foul. Nevermind that common-sense sometimes dictates that a harm should result from a given course of conduct.

    Again, I suppose I am merely lamenting the passing of the “gentlemanly” profession.

  3. Lawyers have “above average intelligence?” I wonder if that is really so true…

    I remember, in law school, one professor stated law students were the smartest on any university campus. The guy I was sitting next to happened to have a Ph.D. in Physics from MIT. He and I both started laughing, and the prof didn’t get it. We lawyers tend to have stiff shoulders from patting ourselves on the back too much on that score.

    Lawyers are highly literate, but as a group, barely numerate. Lawyers might be above average on some measures of intelligence. Whether, overall, they tend to be outside the center of the bell curve, well, the longer I practice the less sure I am.

    I have yet to find a person who could not get into SOME law school. Those few I’ve met who have not been able to pass a bar exam have more problems with mental blocks than with the ability to master the material. Law school involves a lot of material, but it’s not necessarily difficult material — drudgery and self discipline are far more important than brilliance, or, as they say in music, it’s more perspiration than inspiration.

    1. Don’t shoot the messenger—follow the links.

      I have very little doubt that, as a group, lawyers are more intelligent by any measure than the mean. Higher education acts as a filter. If you haven’t met a person who couldn’t get through college and into law school, you don’t get out nearly enough.

      No backpatting here, though—those who know me know that I don’t think I’m brilliant because I’m a lawyer.

  4. Alright, let me rephrase:

    I have yet to meet a person of intelligence in the median range of the bell curve who could not get into some law school.

    Higher education acts as a filter, certainly, but not a filter as to intelligence. As I said, discipline and perseverance counts far more than intelligence in contributing to educational success. So does luck and financial happenstance. Intelligence is a minor factor compared to the others.

    I know many extremely intelligent high school dropouts, who work as tattoo artists, garbage men, carpenters, roadies, artisans, and the like. I’m not sure if you are overestimating bar members, or under-estimating the rest of humanity.

    1. The intelligence bell curve for lawyers (or for MDs, or for PhDs) is shifted to the right of that for people in general. Where the mean IQ for people in general is 100, the mean for lawyers is (according to the Michigan Bar Journal Article) 127. This doesn’t mean that every lawyer has an IQ over 100; indeed, most lawyers are neither as smart as they need to be nor (more importantly) as smart as they think they are.

      I was puzzling over why someone as smart as you would so obdurately confuse the proposition that lawyers, as a group, have above-average intelligence with the proposition that there aren’t very smart people doing other things.

      Then I realized: you’re very cleverly illustrating your point by literately demonstrating lawyer innumeracy.

      How droll!

  5. No, I just 1) don’t put as much faith in the MBJ article as you seem to, and 2) don’t have much faith in IQ tests as a measure of intelligence.

  6. That I certainly agree with. I believe that IQ tests measure certain aspects of intelligence, but i fail to measure even those aspects fairly for broad groups of people. They also ignore many more aspects of intelligence.

    I remember studying music, and learning that there are four major musical senses — pitch, timbre, dynamics, and rhythm. A person may excel in some, and have no sense of the others. That is not factoring in the physical senses and skills involved in playing an instrument. A person may study clarinet, and end up believing they have no musical talent, while if they switch to keyboards they may be classified as a genius. Yet the persons skills would not change.

    I think the same thing holds true for lawyers. We have our skills, and some of us are very good at them, even geniuses (genii?) — yet few of us could excel at clarinet.

  7. On this discussion, please let me make a small observation (I will leave the esoteric issues to ya’ll who are obviously much more informed than I):

    When I was maybe 10 or 11, I was given an IQ test of some sort. I don’t recall much of the test, but I do recall being faced with defining a word… “regatta.”

    Now, being from OK and seriously land-locked, the term “regatta” does not often come up in a 10/11 year-old’s vocabulary, at least not for a boy from a small hick town. (now, if they had asked me to define a “heeler” or a “chute gate”… but I digress.)

    My point is, well, I’m not certain what my point is except to say that not all tests are created equal and not all reference points are static – many are quite relative. So intelligence, as measured on any scale, must be measured against a relative scale and that relative point must be kept in mind or the measurement (a la Rene Descartes and Einstein) is truly meaningless.

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