Academic journal article The University of Memphis Law Review

Attorney Advertising in the Litigators and Modern-Day America: The Continued Importance of the Public's Need for Legal Information

Academic journal article The University of Memphis Law Review

Attorney Advertising in the Litigators and Modern-Day America: The Continued Importance of the Public's Need for Legal Information

Article excerpt

I.Introduction

You cannot avoid them. They are everywhere: attorney advertisements. You see them on television, billboards, buses, benches, magazines, newspapers, and even urinals in bars.1 If you go online, you arguably see them even more with a dizzying array of marketing, branding, and other promotions. Many also engage in crazy and zany videos.2 They show wreck videos, play Christmas jingles, employ talking dolls, resemble soap operas, or depict lawyers as superheroes.3 Some attorneys use sexually provocative ads.4 Some certainly can push the boundaries of good taste.5 The nicknames some of these lawyers inspire interest or at least laughter. To name a few, there are "the Alabama Hammer,"6 "the Texas Law Hawk,"7 and "DUI Dick."8

It is not about laughs but serious dollars. Some lawyers contribute literally millions of dollars to increase their brand through phone numbers, domain names, and other venues.9 For example, an enterprising California-based attorney has spent millions marketing his brand "No Cuffs."10 A New Orleans-based attorney spends $1 million per month in television advertising.11 In 2015, personal injury attorneys spent more than $892 million.12 A year later, the total was close to $1 billion.13 Attorney advertising has become more than ubiquitous in modern America.

This Essay addresses the phenomenon of attorney advertising from several vantage points. Part II of the Essay addresses how bestselling author John Grisham depicts attorney advertising in his great book The Litigators. Part III discusses the legal framework of how the U.S. Supreme Court protected attorney advertising as a form of protected commercial speech. Part IV addresses how the states and bar regulators have treated attorney advertising. Finally, Part V addresses the recent Association of Professional Responsibility Lawyers Report and the American Bar Association's proposed changes to the ABA Model Rules of Professional Conduct regarding attorney advertising. Part V briefly concludes.

II.Attorney Advertising in The Litigators

In The Litigators, the great John Grisham depicts a small law firm, Finley & Figg, that flouts the rules of professional conduct regarding attorney advertising to expand its business. Finley & Figg engaged in a variety of solicitous schemes, a few ethical and many others not so much.

For example, Wallis ("Wally") Figg impersonated a doctor and engaged in the most direct form of face-to-face solicitation, "hovering over" a patient in her hospital bed.14 For this form of "blatant solicitation," he received a reprimand from the state bar association.15 Undeterred, Wally would send flowers and letters to widows.16 He drove by funeral homes looking for clients.17 He and his senior partner, Oscar Finley ("Finley"), literally scrambled over other lawyers to sign up accident victims in the street.18 Finley stopped by a police station where his cousin shuffled accident reports.19

Finley & Figg were "ambulance chasers" in the truest sense of the term.20 They even named their dog "AC" after the term.21 Wally particularly enjoyed the hustle and bustle of advertising, though perhaps because of age they eschewed online advertising. As the irascible office manager Rochelle said, "He advertised so much, in so many ways, and in so many odd places that it was impossible to keep up with him."22 He advertised on park benches, high school football programs, telephone poles, bingo cards, church bulletins, Rotary Club raffles, coupons, and elsewhere.23 The firm even advertised on the side of buses.24 Indeed, that was how the unsuspecting big-firm burnout David Zinc (?Zinc?) discovered his future colleagues.25 As he branched into products liability law, Wally left ?Beware of Krayoxx!? brochures in restaurant bathrooms.26

Wally could never convince Finley to go all-in on advertising. Wally wanted to advertise via television and billboards, even picking out the perfect location, but the less audacious Finley refused. …

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