|President's Page||The West Virginia Lawyer||January 2000
by Darrell W. (Dan) Ringer
"It Pains to Advertise"
A lawyer's time and advice are his stock in trade.
You can fool all of the people some of the time . . ..
I practice law. Because Iím a sole practitioner that means I do a lot of other things. I get to be the chief office supply clerk, the personnel manager, the bookkeeper, the groundskeeper, the butcher, the baker, the candlestick maker . . .. I also have to be the head of the PR/PI (Public Relations/Public Information) Department. Among other things, that means advertising.
Recently, because of three events Iíve started taking the advertising part of the job pretty seriously. Iím finding that words and phrases can mean several things at once, and we must be very careful how we use them.
The first event was a dinnertime comment by my wife, Rebecca. She taught school for several years in relatively rural areas, and she worked for a time with West Virginia Universityís extension program. She pointed out that many people lack the experience to interpret common phrases that are used to represent larger concepts. She noted, for example, that when you encourage a young person to "look to their horizons," you should make sure they donít live in a deep valley. The horizon there is not very far away.
The second event occurred when I was watching television. There it was, a collection of compact disks which promised that "youíll enjoy a lifetime" listening to "all of the great musical masterpieces!" I knew they were talking to me. I love music. Listening to the music behind the ad I realized that the publishers consider "masterpieces" to be classical, not rock, not Broadway, no rap, no folk.
I was excited! I love classical music. Itís like a treasure hunt. I look forward to hearing works Iíve never heard before, and this collection would have them all. I could order it, convince myself itís a Christmas present for my family, buy a 500 CD changer for the stereo, and spent the next millennium listening to all of the great masterpieces. No mere masterpieces for me. Just the great ones! In the interest of full disclosure they did mention that they couldnít fit all of Bolero into the collection, so Iíd only get the "highlights" of that particular great masterpiece. They probably had Ravel do the editing, just to make sure it would still be great.
But who would have the time to listen to "all" of the great masterpieces?
It is not to worry. Not only had the company selected only the great masterpieces, they managed to fit them all onto six hours of CDís. It did concern me however that they seemed to equate the rest of my life with six hours.
The third event was the submission of the Report of the Lawyer Advertising Commission to the State Barís Board of Governors.
Every issue has at least two sides, and advertising, and particularly advertising by attorneys, raises a very large number of issues. And everyone is a expert.
The Advertising Commission was chaired by past State Bar president Elliot Hicks. Past President Glenn Robinson headed the subcommittee that drafted the report. The subcommittee and Commission did a through job. But the results of their work is not without its critics.
Sometimes it seems that any proposal which might change the way we do things is a sign of the pending end of the world. I got letters and comments with phrases in them like "I havenít read the report, but Iím against it." I also got some very well reasoned comments from people who have spent a great deal of time thinking about and studying the issue.
The simple fact is that very few lay people want lawyers to advertise, and relatively few lawyers really want to do it. I certainly wish I could do without it, but I donít think I can ó even though my efforts are very slight, and consist primarily of a phonebook ad and an Internet web page. Of course I take advantage of all of the free attention I can get.
But polls consistently indicate that advertising demeans our profession. Actually, polls indicate that advertising pretty much demeans every profession that engages in it. But lawyers do sometimes seem to push the bounds of good taste. Would you go to an accountant or physician that advertises as lawyers frequently do? And that, in major part is what has led to the Advertising Commission.
We cannot regulate good taste. While a particular ad may offend my sensibilities, who am I to decide that it should not be published? What magic will grant any person or group that wisdom?
So the best we can do, if we do anything, is to provide reasonable guidelines designed to prevent misleading advertising. Therein is the problem. The devil, as they say, is in the details.
Now some will say that the State Bar is debating a solution to a nonexistent problem. No one has been disbarred because of misleading advertisements, so there is no problem. Unfortunately, however, there have been complaints to the State Bar, and with increasing advertising we expect the number to increase. The complaints are increasingly serious.
So, what has been done, and whatís going on?
The Advertising Commissionís report was presented to the Board of Governors on two occasions. The first time the Board returned the report to the Commission with a request that they consider a provision for accommodating existing (paid for) advertising campaigns which would not be in compliance with whatever regulations might be adopted (a grandfather clause). On the second occasion approval of the report was initial denied by a 11-12 vote, but a motion to reconsider was subsequently approved 12-11 and the report referred to a subcommittee. The subcommittee recommended significant changes to the commissionís proposal. The Board again considered the matter in October, and will again address it this month. The discussion and debate is significant, intense and substantial.
The Board of Governors is a remarkable body. I am serving in my sixth year on the Board, (three as a regular member, and three as an officer). I have seen the Board time after time achieve consensus on significant issues. Each member listens and considers the views of the others. Personalties and prior beliefs are set aside. In the end, there are few dissenting votes on any issue.
The issue of lawyer advertising is different. The process is the same. There are no personal attacks. Minds remain open and discussions are to the point. There are simply significant and fundamental differences of opinion. Issues are being decided by one vote.
As I write this column I have no idea if the Board of Governors will approve proposed rules for your consideration. Historically, if a proposal is approved by the Board, it is sent to the Supreme Court of Appeals for consideration and solicitation of public comments before adoption by the Court.
Anything approved by the Board and forwarded to the Court will be posted on the State Barís Internet web pages at www.wvbar.org. The Lawyer Advertising Commissionís report is already there, as is the Boardís most recent discussion draft. Please read these documents and let your Board members know of your thoughts. Members are listed in the front of this magazine.
If you advertise, are thinking about advertising, read advertisements, or are affected by them (that should include everyone) then this issue is important to you.