{"id":4111,"date":"2005-09-26T20:00:35","date_gmt":"2005-09-27T00:00:35","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2005\/09\/26\/missouri-newsflash-legal-cons"},"modified":"2011-08-05T14:54:33","modified_gmt":"2011-08-05T18:54:33","slug":"missouri-newsflash-legal-consumers-are-really-stupid","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2005\/09\/26\/missouri-newsflash-legal-consumers-are-really-stupid\/","title":{"rendered":"Missouri newsflash: legal consumers are really stupid"},"content":{"rendered":"

<\/a><\/p>\n

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Add Missouri to our ever-growing list of states with “we’re just protectin’ them <\/span><\/span>simple-<\/span><\/div>\n
minded\u00a0consumers” lawyer advertising rules.\u00a0 [See our posting <\/span><\/span>here<\/span><\/a> for Indiana; <\/span>here<\/span><\/a> <\/span><\/span><\/div>\n
and <\/span>here<\/a> for Florida<\/span>; <\/span><\/span>here<\/a> for South <\/span>Carolina regarding lawyer nicknames; <\/span><\/span>here<\/span><\/a> and <\/span>there<\/span><\/a> for Kentucky; and here<\/a> for New York<\/span>] <\/span><\/div>\n
<\/span><\/div>\n
This time, the Supreme Court <\/span>of <\/em>Missouri, in <\/span>an Order<\/span><\/a> issued Sept. 19, <\/span><\/div>\n
2005 and effective Jan. 1, 2006, <\/span>has amended Rule 4-7.2, adding a new <\/span><\/div>\n
subsection (f).\u00a0 The rule will require <\/span>that <\/span>each <\/span>lawyer ad “contain the<\/span> <\/span><\/div>\n
following conspicuous disclosure:<\/span><\/div>\n
\n
\"wrong “The choice of a lawyer is an important decision<\/em><\/span> and should <\/em><\/span>not be based solely upon advertisements.”<\/em><\/span><\/div>\n<\/blockquote>\n
Proving that the Court thinks lawyers are pretty simpleminded, too, a new<\/span><\/div>\n
Supplemental Missouri Comment states:\u00a0 “In the case of television, the <\/span><\/div>\n
disclosure . . . may be made orally or in writing.\u00a0 In the case of radio, the <\/em><\/span><\/div>\n
disclosure must be made orally<\/em>.”\u00a0 (emphasis added)<\/span><\/div>\n
<\/span><\/div>\n
\n
\"tiny It seems to me that a more necessary <\/em><\/span>warning would be: <\/span><\/div>\n
\n
“The choice of a lawyer is an important decision and should <\/span><\/div>\n
not be based solely upon\u00a0a recommendation from your Bar’s <\/span><\/div>\n
Lawyer Referral Service.” <\/span><\/div>\n
<\/span><\/div>\n
[See our <\/span>prior post<\/span><\/a> — getting the next lawyer on the list is <\/span><\/div>\n
hardly an improvement.]<\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n
Thanks to\u00a0David Hricik at <\/span>Legal Ethics Forum<\/span><\/em><\/a> — my <\/span>new<\/span><\/a> best <\/span>pen-pal<\/span><\/a> — for <\/span><\/span><\/div>\n
pointing to an article from the <\/span>St. Louis Dispatch<\/span><\/em><\/a> about the new Missouri rule. <\/span><\/div>\n
The <\/span>article also notes that the new rule will:<\/span><\/span><\/div>\n
\n
“[S]top lawyers from advertising for a specific type of case if they <\/span><\/div>\n
have no experience in that area. Ads must state if a lawyer routinely <\/span><\/div>\n
refers an area of practice to other attorneys. Another change requires <\/span><\/div>\n
that if a lawyer touts damage awards or settlements he has won, he <\/span><\/div>\n
also must state that past results are no guarantee of future outcomes.<\/p>\n

“The rules also expand restrictions for direct solicitation of clients, such <\/span><\/p>\n

<\/span><\/div>\n

as advertisements sent through the mail. Among new prohibitions is one <\/span><\/div>\n
that stops lawyers from vilifying or disparaging a potential defendant. <\/span><\/div>\n
[Mark] Levison [who headed the MoBar committee that sought the new <\/span><\/div>\n
rules] cited the example of a mailing that depicted a doctor behind bars.” <\/span><\/div>\n<\/blockquote>\n
\"wolf In my opinion, Missouri lawyers and courts are really reacting to their own <\/span><\/div>\n
dislike of all lawyer advertising — to uphold the profession’s supposed <\/span>“dignity” and prevent <\/span><\/div>\n
the <\/span>outbreak of unseemly competition.\u00a0An FTC <\/span><\/a><\/span>letter<\/span><\/a> in September 2002 to the <\/span><\/div>\n
Alabama <\/span>Supreme Court makes some important points (see the Press Release<\/span><\/a>):<\/span><\/span><\/div>\n
\n
“[I]t is best for consumers if concerns about misleading advertising <\/span><\/span><\/div>\n
are addressed by adopting restrictions on advertising that are tailored <\/span><\/span><\/div>\n
to prevent unfair or deceptive acts or practices. . . . [I]mposing overly <\/span><\/span><\/div>\n
broad restrictions that prevent the communication of truthful and nond-<\/span><\/span><\/div>\n
eceptive information is likely to inhibit competition and to frustrate <\/span><\/span><\/div>\n
informed consumer choice.” As the Commission staff noted in a 1994 <\/span><\/span><\/div>\n
comment to the American Bar Association’s Commission on Advertising, <\/span><\/span><\/div>\n
“research has indicated that overly broad restrictions on truthful advertising <\/span><\/span><\/div>\n
may adversely affect prices paid by consumers, especially for routine <\/span><\/span><\/div>\n
legal services.”<\/span><\/span><\/div>\n<\/blockquote>\n
As to the “dignity of the profession” concern, the <\/strong>FTC’s Alabama Letter concluded: <\/span><\/span><\/span><\/div>\n
“[B]road rules to enforce criteria of ‘dignity’ may prevent the communication of useful, <\/span><\/span><\/span><\/div>\n
nondeceptive information and thus inhibit competition and consumer choice. Strict <\/span><\/span><\/span><\/div>\n
rules to enforce ‘dignity’ may not give consumers enough credit, for consumers <\/span><\/span><\/span><\/div>\n
apparently respond more positively to advertising that would be considered ‘dignified.’ <\/span><\/span><\/span><\/div>\n
And consumers appear to be less offended by certain supposedly undignified methods <\/span><\/span><\/span><\/div>\n
than professional themselves are.”<\/span><\/span><\/span><\/div>\n

\n<\/span><\/span><\/span><\/div>\n
<\/span><\/div>\n
update<\/span><\/strong><\/em> (Sept. 27, 2005): Evan Schaeffer<\/a>, who practices in Missouri<\/span><\/div>\n
and Illinois,\u00a0doesn’t think the new disclosure will be\u00a0effective, but\u00a0won’t<\/span><\/div>\n
mind adding it to his Missouri ads.\u00a0 He wonders, however, about corporate <\/span><\/div>\n
defense firms,\u00a0whose ads target a more sophisticated\u00a0crowd but will now <\/span><\/div>\n
need to include\u00a0the confusingly irrelevant bit of “information.”<\/span><\/div>\n
<\/span><\/span><\/span><\/div>\n
\n
If you’re feeling over-protected by your legal profession, let <\/span><\/div>\n
me suggest <\/span>a haiku break.\u00a0 W.F. “Prof. Bill” Owen never <\/span><\/span><\/div>\n
underestimates your intelligence:<\/span><\/div>\n

\n<\/span><\/div>\n
<\/span><\/div>\n
<\/span><\/span><\/span><\/div>\n
\n
waxing moon<\/span><\/div>\n
we take turns cranking<\/span><\/div>\n
the ice cream maker<\/span><\/div>\n
<\/span><\/div>\n
\n
\n
\n
\n
\n
morning bell <\/span><\/div>\n
dew spins <\/span><\/div>\n
from the kickball <\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n
\"soccer<\/span><\/div>\n
autumn morning <\/span><\/div>\n
two veterans <\/span><\/div>\n
shoulder their brooms<\/span><\/div>\n
\n
\n
\n
\n
\n
\n
last bale of hay <\/span><\/div>\n
one strap holds <\/span><\/div>\n
his overalls\u00a0\u00a0 <\/em> <\/em><\/span><\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n
<\/em><\/span><\/div>\n
W.F. Owen<\/em><\/strong><\/span><\/a> from <\/span>Selected poems by w.f. owen<\/span><\/a><\/span><\/div>\n
“last bale of hay” – Frogpond <\/em>XXV:1 (2002)\u00a0 <\/em><\/span><\/span><\/div>\n
“autumn morning” – Modern Haiku<\/em> XXXIV:1 (2003) <\/span><\/div>\n
“waxing moon” – <\/span>Modern Haiku<\/span><\/em><\/a> (Winter 2002)<\/span><\/div>\n
\n
<\/p>\n
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\n<\/blockquote>\n

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