Less Dignity, More Hustle

By Michael S. Serrill

Suddenly, the lawyers seem to be everywhere. On prime-time and late-night television, on radio, in the newspapers, the blast of advertising is increasingly tough to tune out. "Injuries -- call us first." "You may be entitled to money damages." "Dial L-A-W-Y-E-R-S." While traditional practitioners shudder, the U.S. Supreme Court is not flinching, and last week it seemed to guarantee that the barrage will become heavier.

Expanding on decisions dating back to 1977, the high court ruled 5 to 3 that a state may not ban nondeceptive advertisements even when the attorney is soliciting clients with very specific legal problems. Columbus Lawyer Philip Zauderer had been reprimanded by the Ohio Supreme Court for placing a series of modest newspaper ads in 1982 that showed a line drawing of the Dalkon Shield IUD. Zauderer's text said the device was alleged to have caused injuries and other health problems for women and suggested that victims could still sue, even though the device had been off the market for years. Zauderer eventually filed lawsuits for 106 women who read the ads.

The U.S. Supreme Court held that this kind of case-specific solicitation, though forbidden by the Ohio bar's long-standing ethical tenets, is "commercial speech" protected by the First Amendment. Advertisements, wrote Justice Byron White for the majority, are not comparable to face-to-face solicitation of clients, which can be prohibited because it is "rife with possibilities for overreaching . . . and outright fraud." The court rejected the contention that ads like Zauderer's will "stir up litigation" unnecessarily. "That our citizens have access to their civil courts is not an evil to be regretted," said White. "The state is not entitled to interfere with that access by denying its citizens accurate information about their legal rights."

On a second, related question, the court ruled that a state can require a lawyer to provide the public with more information to prevent advertising deception. By a 6-to-2 vote, it upheld Ohio's reprimand of Zauderer for failing to explain in his ads that while no legal fees would be owed if he lost, the client might still be liable for other costs incurred in pursuing the lawsuit.

On balance, "it is a big victory for both lawyers and consumers," exulted Washington Public Interest Attorney Alan Morrison, who argued Zauderer's case before the Supreme Court. Consumers do seem to get benefits from ads. "Where there is lots of advertising, fees are lower," asserts Steven Cox, an economics professor at Arizona State University, who conducted a six-city study of lawyer advertising funded by the National Science Foundation in 1981-82. A larger 1982 study for the Federal Trade Commission compared legal costs in 17 cities. For such matters as simple wills, uncontested divorces and unopposed personal bankruptcies, consumers stood to save anywhere from 5% to 11% in the cities where ads were most freely allowed. Cox cautions, however, that the lower rates were not always found at the firms that advertised.

Some evidence suggests that lower-cost lawyers tend to spend less time on a case, but a study published in 1979 in the American Bar Foundation Research Journal found that the quality of work at high-volume, heavily advertised firms was as good as, and sometimes better than, that of conventional firms.

Advertising has been particularly important to ambitious interstate giants of McLawyering like Jacoby & Meyers (140 offices in six states) and Hyatt Legal Services (161 in 20 states and the District of Columbia). Both are planning to expand, and will look with new interest at the many states, like Ohio, where restrictive ad policies may now be in jeopardy. Says Legal Entrepreneur Joel Hyatt, 34: "Because of the new decision, we are likely to be bolder on that score."

Whatever the gains from the increased opportunity to advertise, most attorneys continue to regard the practice as distasteful and undignified. An A.B.A. Journal study found that in 1984 only 13% of the attorneys surveyed placed ads of any kind; in 1979 the figure was 7%. Ads range in tone from the discreet, almost public-service messages on a Philadelphia classical-music station by Rawle & Henderson, the nation's oldest firm, to the outrageous grabbers of Ken Hur of Madison, Wis., the acknowledged "clown prince of adtorneys." The 300-lb. Hur's most famous TV commercial features him in | bejeweled scuba gear climbing out of a lake and urging those who are "in over their heads" to seek bankruptcy counseling at his Legal Clinic. His next TV offering will show a condemned prisoner (Hur) being asked, "Any last words, my son?" Hur turns to the camera and answers, "I should have called the Legal Clinic."

Advertising's defenders say that the old starchy ways served a limited clientele. "Blue-collar people with an injury feel more comfortable about calling when they've watched an ad," says Miami's Philip Auerbach. His firm spends $3 million annually on advertising and gets back eight times that much in resulting fees. That kind of return, added to last week's Supreme Court decision, bodes ill for those already tired of listening to lawyer pitchmen. "The only way to sell legal ads," warns Auerbach, "is to beat the clients over the head so they scream your name in their sleep."

With reporting by Cathy Booth/New York, with other bureaus